IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 07.07.2010 C O R A M THE HONOURABLE Mr.JUSTICE S.NAGAMUTHU Writ Petition Nos.20632 and 20633 of 2000 M.Sekar ..Petitioner in both the WPs. -Vs- 1.The Appellate Authority, Personal Wing, Canara Bank, Bangalore 560 002. 2.The Disciplinary Authority/ Dy.General Manager, Canara Bank Central Office, Madurai ..Respondents in both the WPs Prayer in W.P.20632/2000: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the records of the 1st respondent in No.MDUC SSW 5772 EP JS dated 14.11.2000 and quash the order passed therein. Prayer in W.P.20633 of 2000: Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari to call for the order of the 1st respondent dated 06.03.2000 confirming the order of the 2nd respondent made in No.MDUC:DAD: 1156:F:2099:99 dated 28.09.1999 and quash the same. For petitioner ... Mr.T.N.Rajagopalan For respondents ... Mr.P.R.Raman C O M M O N O R D E R Since common issues are involved, both the writ petitions were heard together and disposed of by a common order. 2. The petitioner was working as a Clerk at Peraiyur Branch of Canara Bank since 09.09.1998. Earlier, he was working at Town Hall Road, Madurai Branch between 11.09.1995 to 19.08.1998. When he was so working at Madurai Branch, one M/s.R.K.Trading Corporation held current account (No.1496) in the said Bank. Two cheque leaves https://hcservices.ecourts.gov.in/hcservices/ bearing Nos.514348 and 514349 had been issued by the Bank to the account holder as against the said account No.1496 (For easy reference current account) Both the cheques were issued by the account holder to M/s.Viswam Auto Spares on 31.03.1997 for Rs.30,000/- and Rs.20,000/- respectively. The cheques were presented and the same came to the Madurai Branch for collection. But on 03.06.1997 itself, the account holder had given 'Stop payment' order. The same was entered in the said account. Since stop payment order was in force, both the cheques were returned as dishonoured on 02.04.1997. 3. Subsequently, on 12.06.1997, the said current account was closed by the account holder and one O.C.C account was opened. The balance of the amount remained in the current account, as per request of the account holder, was duly transferred to the O.C.C account. However, the stop payment in respect of the above two cheques was not carried out in the O.C.C account. 4. While so, both the cheques again came for collection. In normal course, when an account is closed, the cheque slip issued under the said account should have been returned to the Bank and the same cannot be used for any other purpose as against any other account. But, in this case, admittedly, the Branch Manager had permitted the account holder to use the very same cheque slips issued under the current account as against the O.C.C., account. Therefore, when the above two cheques again came for collection on 09.08.1997, the petitioner after verifying the entries and cash balance in the O.C.C., account passed the same. Accordingly, the amounts due under the cheques viz., a total sum of Rs.50,000/- was paid to the payee. 5. Thereafter, the account holder M/s.R.K.Trading Corporation made a complaint to the Bank that the two cheques had been honoured despite the Stop Payment order given by him earlier on 03.06.1997 itself. Based on the said complaint, a charge sheet was issued against the petitioner by the disciplinary authority viz., The Deputy General Manager by his proceedings in MDUC:DAC:060F:2099: (W-17/98) on 19.01.1999. As many as eight (8) charges were levelled against the petitioner. As extracted precisely by the Enquiry Officer in the Enquiry Report, the following are the charges:- i) The CSE was the clerk working in both C a/c and OCC Section and opened the OCC a/c of M/s R.K.Trading Corporation on 12.06.1997 and closed their current a/c on 13.06.1997 in the same ALMP Machine. ii) the CSE had only earlier noted "stop payment" instruction in the C a/c 1496 of the party in the computer on 04.06.1997. iii) the CSE had failed to carry over the same at https://hcservices.ecourts.gov.in/hcservices/ the time of opening OCC a/c of M/s R.K.Trading Corporation in the same machine. iv) the CSE had debited the Stop payment cheques in the OCC a/c of the party, whereby v) the CSE had exposed the bank to a financial loss to the tune of Rs.50,000/- to the Bank by way of reimbursement to the a/c holder. vi) the act had also lead to lowering of the Bank's image in the eyes of the public. vii) by the above act, the CSE was grossly negligent involving the bank in loss and caused damages to the Bank. viii)The above acts of CSE are prejudicial to the interest of the Bank. 6. The petitioner denied the above charges. Therefore, an equiry was held. The petitioner duly participated in the enquiry and said that the duty to carry out the stop payment order which had earlier been entered as against the current account in the O.C.C account was not that of him and was that of some other officer. He further submitted that he was only operator of the computer, whereunder, his duty is to open the O.C.C account, to verify whether sufficient fund is available in the account, to see whether any stop payment order has been made and then to pass the cheques, which, according to him, he had duly done. Thus, there was no negligence at all on his part and therefore, he is not liable for any punishment under any of the charges. 7. The Enquiry Officer submitted his report dated 25.08.1999, wherein, he concluded that charges 3 and 6 were not proved and charges 1, 2, 4, 5, 7 and 8 alone were proved. After giving an opportunity of personal hearing to the petitioner by giving show cause notice, the disciplinary authority accepted the findings of the Enquiry Officer and imposed punishment of "Censure" as against proved charges viz., charges 1, 2, 4, 5, 7 and 8. 8. At the risk of the petitioner, it needs to be mentioned that the disciplinary authority accepted the findings of the Enquiry Officer as against the charges 3 and 6, wherein, the Enquiry Officer held that these charges are not proved. Challenging the said punishment, he preferred an appeal to the appellate authority viz., the first respondent and the same was rejected. It is against the said punishment, the petitioner has come up with W.P.20633 of 2000. 9. Subsequently, the first respondent by his proceedings in No.MDUC SSW 5772 EP JS dated 14.11.2000 directed the petitioner to pay a sum of Rs.25,000/-, so as to make good the loss sustained by the Bank on account of the negligence as held by the disciplinary authority, which resulted in the punishment of censure as narrated https://hcservices.ecourts.gov.in/hcservices/ above. This according to the respondent was done in tune with Regulation No.7 under Chapter VI of the Service Code of the Bank which states as follows:- " Every employee shall be liable to make good any loss or damage sustained by the Bank in consequence of any negligence on his part in the performance of his duties." 10. Aggrieved over the above order of the first respondent, the petitioner has come up with W.P.No.20632 of 2000. 11. In the common counter filed by the respondents, it is stated that it was the duty of the petitioner to make necessary entries regarding "stop payment" made by the account holder in O.C.C., account. Since he failed to do so, the Bank sustained loss to the tune of Rs.25,000/- and that was the reason why the petitioner was imposed with the punishment of censure and hence as per the Service Code he was directed to pay a sum of Rs.25,000/-. 12. I have heard the submissions of the learned counsel for the petitioner and the respondents and perused the records available. 13. For the sake of convenience, let me take up W.P.No.20633 of 2000. As I have already enumerated in earlier paragraphs of this order, totally, there were eight (8) charges levelled against the petitioner. 14. The learned counsel for the respondent would submit that the power of judicial review under Article 226 of the Constitution of India in respect of the findings of the Enquiry Officer in disciplinary proceedings, which came to be accepted by the disciplinary authority is very limited. For this proposition, the learned counsel for the respondents would rely on a judgment of the Hon'ble Supreme Court in Lalit Popli Vs Canara Bank and Others reported in (2003) 3 Supreme Court Cases 583. Regarding this legal proposition, there can be no quarrel. But at the same time, it is also the law that whenever the court finds that the findings of the Enquiry Officer is based on no evidence and the ultimate conclusion arrived by the Enquiry Officer is arbitrary and the same has been accepted by the disciplinary authority also, then the power of judicial review is very much available for this court under Article 226 of the Constitution of India. 15. The learned counsel for the respondents further submitted that it is not within the power of jurisdiction of this court to reappreciate or reappraise the entire evidence let in before the Enquiry Officer and to substitute its own conclusions. For this proposition, he relied on a judgment of the Hon'ble Supreme https://hcservices.ecourts.gov.in/hcservices/ Court in State of Uttar Pradesh and another Vs Man Mohan Nath Sinha and another reported in (2009) 8 Supreme Court Cases 310. Regarding this proposition also, there can be no quarrel. I am conscious, that it is far beyond the jurisdiction of this court to sit like an appellate authority to reappreciate the entire evidence let in before the Enquiry Officer, so as to arrive at a conclusion to substitute my conclusion in the place of the conclusion of the Enquiry Officer, which are accepted by the disciplinary authority. But at the same time, it is well within the powers of judicial review of this court to see whether any evidence at all was let in before the enquiry officer against the delinquent and also to see atleast, whether the charges have been proved applying the principles of preponderance of probability. Keeping in mind these settled principles of law, let me now have a look into the charges and findings of the enquiry officer in the instant case. 16. At this juncture, I have to again make a mention that charges 3 and 6 have been held to be not proved. So far as charge No.1 is concerned, it speaks of the closure of the current account and opening of O.C.C., account in the name of M/s.R.K.Trading Corporation. This charge does not allege any mis-conduct on the part of the petitioner. The learned counsel for the respondent would also submit that there is no mis-conduct alleged under this charge. Therefore, the findings of the enquiry officer as against this charge that the petitioner is negligent is therefore, perverse and this should not have been accepted by the disciplinary authority. When the charge itself does not allege any negligence or misconduct or any other dereliction of duty on part of the petitioner, it is too hard to accept that the petitioner is negligent. 17. Let me now take charge No.2. This charge speaks that Stop payment order issued by the account holder under the current account was duly entered in the computer by the petitioner. Here also, there is no negligence or dereliction of duty or irregularity alleged against the petitioner. Therefore, the findings of the enquiry officer on this charge is also perverse as the same is based on no evidence and based on no allegation. 18. Similarly, charge No.4 speaks of the act of the petitioner in debiting the amount stated in the cheques in question under the O.C.C., account of the party. Here, as explained by the petitioner, when there was no entry regarding stop payment under the O.C.C., account, he was right in passing the cheques. Here also, there is no negligence, irregularity or dereliction alleged as against the petitioner. Thus, on charge No.4, also the findings of the enquiry officer is perverse based on no evidence and based on no allegation. The charges 5, 7 and 8 also do not speak of any negligence, dereliction or irregularity on the part of the petitioner. As I have held under the other charges, the findings of https://hcservices.ecourts.gov.in/hcservices/ the enquiry officer against these charges are also held to be perverse as therefore based on no evidence and based on no allegation. Thus, the Enquiry Officer as against the charges 1, 2, 4, 5, 7 and 8 which are based on no evidence should have been rejected by the disciplinary authority. 19. It is curious to note that as I have already mentioned, there is not even any allegation of negligence or any other misconduct made against the petitioner under these charges. A close reading of the charges would go to show that the pivotal of the charge is charge No.3. Charge No.3 only alleges that the petitioner failed to carry over the stop payment order entered as against the current account as against the O.C.C., account, which was opened. But the enquiry officer has held that this charge was not proved against the petitioner. Thus, even according to the enquiry officer, the petitioner cannot be blamed for not making necessary entries in the O.C.C.account in respect of the Stop payment order. When that be so, all the other charges, should also fail. It would have been a different case, if the disciplinary authority had differed from the findings of the enquiry officer under Charge No.3 and taken a different view to hold that charge No.3 is also proved. When once charge No.3 fails and the same was accepted, as a corollary, it is also to be held that all the other charges have not been proved. 20. It is to be noted that except charge No.3, the other charges do not allege any negligence on the part of the petitioner in the performance of the duty. Once, when charge No.3 is held to be not proved, not only, punishment of censure, but also, the order directing the petitioner to pay a sum of Rs.25,000/- should also fail. 21. As per the Service Code, if only, it is proved that the petitioner has caused any loss in consequence of his negligence or irregularity, then, he shall pay and make good the loss. In this case, there is no negligence alleged against the petitioner. According to the charge sheet, the petitioner failed to carry out stop payment order in the O.C.C., account. But, the said charge has been held to be not proved. Therefore, the order impugned in W.P.20632 of 2000 is also not sustainable. 22. To sum up, I hold that applying the settled principles of law, as I have enumerated above, I hold that punishment imposed upon the petitioner is not at all sustainable and the consequential order directing the petitioner to pay a sum of Rs.25,000/- is also not sustainable. Therefore, both the writ petitions are bound to succeed. https://hcservices.ecourts.gov.in/hcservices/ 23. In the result, the writ petitions are allowed. The punishment imposed on the petitioner is set aside and the order impugned in W.P.20633 of 2000 is also set aside. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar nvsri To 1.The Appellate Authority, Personal Wing, Canara Bank, Bangalore 560 002. 2.The Disciplinary Authority/ Dy.General Manager, Canara Bank Central Office, Madurai +2cc to Mr.P.R.Raman, Advocate Sr 49357,49358 +2ccs to Mr.T.N.Rajagopalan, Advocate Sr 48503 SJ(CO) km/26.7. W.P.Nos.20632 and 20633 of 2000 https://hcservices.ecourts.gov.in/hcservices/