IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.04.2010 CORAM THE HONOURABLE MR. JUSTICE C.NAGAPPAN AND THE HONOURABLE MR. JUSTICE T.S.SIVAGNANAM W.A.No.899/2004 V.D.Muneeswaran ... Appellant Vs. 1. General Manager, (Operations II) Appellate Authority, UCO Bank, Head Office, No.10. B.T.M. Sarani, Calcutta -1. 2. The Zonal Manager, Disciplinary Authority, UCO Bank, Zonal Office, 169, Thambu Chetty Street, Chennai – 1. ... Respondents PRAYER : Writ appeal filed under clause 15 of the letter patent against the order dated 01.04.2003 made in W.P.7293/2000, to issue a writ of certiorarified Mandamus to call for the records relating to the order of the Ist respondent in this proceedings dated 10.1.2000 and to quash the same, and to further direct the respondent 1 & 2 to reinstate the petitioner into service resorting his original post in the service of the UCO Bank Narayanapuram Branch, Chennai with all concurrent benefits. For Appellant :Mr.G.Rajagopalan Senior Counsel for Mr.R.Vasudevan For Respondents :Mr.Srinath Sridevan ORDER T.S.SIVAGNANAM,J. The above writ appeal has been filed against the order made in W.P.No.7293/2000, dated 01.04.2003. https://hcservices.ecourts.gov.in/hcservices/ 2. The appellant in the writ appeal is the writ petitioner in the W.P.No.7293/2000. The prayer in the writ petition is for issuance of a writ of Certiorarified Mandamus to quash the order passed by the first respondent dated 10.01.2000 and to direct the respondents 1 and 2 to reinstate the petitioner in service. 3. The facts leading to the filing of the writ petition are as follows:- The appellant was recruited as a Typist/Clerk in the respondent bank on 23.06.1982, subsequently was promoted as scale I officer with effect from 28.02.1994 and after serving in various stations, he was posted as Assistant Manager, Advances Department at Ootacamund branch during 1995-1998. While, he was serving in Ootacamund branch a charge memo dated 25.09.1998 was served on the appellant, containing 9 articles of charges. The allegations in the charge memo were that the appellant lacked integrity and devotion to duty and he is unbecoming of an officer of the respondent bank warranting action under Regulations 3 of the UCO Bank Officer Employees (Conduct Regulations) 1976 (hereinafter referred to "as the Regulation"). The second respondent, the disciplinary authority, appointed an enquiry officer to enquire into the charges framed against the appellant, the enquiry officer issued notice on 24.01.1998 and the appellant is stated to have given his explanation to the charges on 23.05.1999. The enquiry officer by his report dated 17.06.1999, held that the charges 1 & 8 as fully proved, charges 2, 3 & 5 were partly proved and charges 4, 6, 7 & 9 as not proved. The appellant was given opportunity to submit his further explanation to the findings of the enquiry officer and accordingly, the appellant also submitted his reply on 12.07.1999. Thereafter, the disciplinary authority by order dated 03.09.1999, imposed the punishment of compulsory retirement. The appellant preferred a statutory appeal to the first respondent and the first respondent by order dated 10.01.2000, confirmed the order of punishment. Aggrieved by such orders, the writ petition was filed. 4. The correctness of the order of punishment was assailed by contending that the disciplinary authority did not independently apply his mind to the conclusion of the enquiry officer and the disciplinary authority ought to have accepted the appellant's explanation that he had taken loan from individuals, since he required money for urgent medical expenses for his aged parents. It was further contended that when the bank lodged a Police compliant, Police authorities refused to register a FIR on the ground that the appellant has not committed any criminal offence. It was further contended that the punishment of compulsory retirement is disproportionate to the gravity of the allegations against the appellant. https://hcservices.ecourts.gov.in/hcservices/ 5. The second respondent bank resisted the writ petition by filing the counter affidavit, inter alia contending that the appellant misused his position as an officer incharge of the Advances Department and indulged in any many acts of personal gain at the cost of the borrowers of the respondent bank as mentioned in the charge memo. It was further contended that before the enquiry officer, the bank submitted 138 documents as exhibits besides examining the 11 witnesses in support of the charges. The appellant was assisted by a defence representative and he had produced 46 documents and examined himself as the only witness. At the conclusion of the enquiry written briefs were presented by the both sides and on 17.06.1999, the enquiry officer submitted his report. The copy of the report was sent to the appellant on 18.06.1999, seeking his comments and the appellant also submitted his reply on 12.07.1999. The order of compulsory retirement was passed on 03.09.1999, as per Regulation 4 of the Regulations. Further, it was pointed out in the counter affidavit about the various financial irregularities committed by the appellant and taking all the factors, the order of compulsory retirement was passed and as such the order was just and proper. 6. The learned Judge by order dated 01.04.2003 dismissed the writ petition, holding that there is no scope to interference with the punishment imposed by the disciplinary authority as confirmed by appellate authority. Further, the learned Judge recorded the submissions of the respondent bank that the appellant would be eligible for sanction of proportionate pension for the number of years of service and the appellant should not be deprived of his gratuity and should be permitted to avail encashment of leave. It is as against the order in the writ petition, the above writ appeal has been filed. 7. Heard. Mr.G.Rajagopalan learned Senior Advocate assisted by Mr.R.Vasudevan appearing for the appellant/ petitioner and Mr.Srinath Sridevan, learned counsel appearing for the respondent bank. 8. The learned Senior counsel appearing for the appellant, after making elaborate submission on facts would contend that the disciplinary authority, while passing the order of compulsory retirement did not give a categorical finding on the appellant's delinquency, but proceeded to impose the punishment by stating that such punishment will serve as warning for other erring officers and the finding of the disciplinary authority is wholly erroneous and unsustainable. The learned senior counsel would further submit that the learned Judge while dismissing the writ petition came to a conclusion that no interference is called for to the order of punishment by making observations, which were not the allegations in the charge memo. The learned senior counsel would submit that the conclusion of the learned Judge was based on the allegations in the https://hcservices.ecourts.gov.in/hcservices/ charge memo, which were held to be not proved by the enquiry officer himself. It is further submitted that there is no charge to the effect that the appellant persuaded the constituents of the bank to avail loan and thereafter obtained hand loan from there. That there is no charge relating to the allegation that the appellant played vital role in the matter of grant of various sums as loan on various occasions and this factual conclusion of the learned Judge is incorrect. The learned senior counsel would further submit that disciplinary action were initiated against the Manager and Assistant Manager of the respondent bank and those officers have been let off with the punishment of censure and the appellant alone has been penalized and there is inequality in the manner of imposing of punishment. The learned senior counsel would submit that the order passed by the first respondent, the appellate authority is a non- speaking order and has been made without due application of mind. That a mere violation of regulation 3(1) of the service regulation is not a serious matter warranting the major penalty of compulsory retirement and the punishment imposed against the appellant is disproportionate to the charge and deserves to be reconsidered. The learned senior counsel placed reliance on the decision of the Hon'ble Supreme Court in Nand Kishore Prasad, Vs. State of Bihar and others, [AIR 1978 SC 1277], and the Judgment of the Division Bench of this Court in Kasi M. Vs. Management of Indian Bank, [2001-II-LLJ page 617] in support of his contentions. 9. Per contra, the learned counsel appearing for the respondent bank would submit that the appellant was working as Assistant Manager in Advances Department and misused his position by availing loans from the constituents/clients of the respondent bank, which is in a gross violation of the service regulations. The learned counsel would submit that the charge against the appellant is very serious and it is not as if the enquiry officer had exonerated the appellant from all the charges. In respect of charge No.1, the finding of the enquiry officer is that the appellant by borrowing from bank constituents indiscriminately, that too linking the bank by routing the borrowing from bank channel itself shows that he conducted himself in a manner unbecoming of an officer of the bank and his act led to several complaints against him as he did not repay the loans borrowed and these complaints, put the bank into embarrassment in the midst of customers and therefore, the appellant conducted himself in a manner unbecoming of the officer of the bank. It is further pointed out that though charge Nos. 2, 3 & 5 were only partly proved, the allegation, which was found proved, was that he had borrowed from the constituents of the bank and what was not proved, was only in respect of the allegation that he had stealthily without the knowledge of the party received the money. Further, in respect of charge No.5, the enquiry officer held that the appellant had given false information about P.S. loans and the same has been proved by documentary and oral evidence. The allegation in charge No.8, which was held proved, was a serious charge, wherein it was proved beyond https://hcservices.ecourts.gov.in/hcservices/ doubt, but on the date of sanctioning of the deposit loan, no funds were available to allow loan against it. It is further submitted that after the enquiry report was submitted, the appellant was afforded sufficient opportunity to submit his objections and the disciplinary authority after considering the entire matter came to a conclusion in his order dated 03.09.1999 that the appellant should be imposed with the punishment of compulsory retirement. This order of punishment was confirmed by the appellate authority, the first respondent herein, after due application of mind. It is further contended that there was no serious contest by the appellant as regards the charge leveled against the appellant and also the findings of the enquiry officer and this has been recorded by the learned Judge in paragraph 5 of the order in the writ petition. As regards the plea of inequality in the punishment imposed, learned counsel appearing for the respondents would submit that this plea was not raised in the writ petition and the appellant should not be permitted to raise such a plea at this stage. Finally, the learned counsel would contend that the scope of judicial review is limited in such matters and this Court will not act as an appellate authority over the findings of the disciplinary authority and as such the writ appeal is liable to be dismissed. 10. The main contention raised by the learned senior counsel appearing for the appellant is on the ground that the punishment of compulsory retirement imposed on the appellant is grossly disproportionate and that the learned Judge, while disposing of the writ petition based his conclusion on a non-existing charge as well as on the allegations in the charge, which were held to be not proved by the enquiry officer. Further, mere violation of Regulation 3(1) is not a serious matter warranting a major penalty of compulsory retirement. A perusal of the order of the learned Judge, the report of the enquiry officer as well as the order passed by the disciplinary authority would go to establish that the submission made on behalf of the appellant cannot be countenanced. Regulations 15 (1) of the Regulations is it the following effect:- -----"No officer employee shall in his individual capacity borrow or permit any member of his family to borrow or otherwise place himself or a member of his family under a pecuniary obligation to a broker, or a money lender or a subordinate employee of the bank of any person, association employee of the bank or any person, association of persons, firm, company or Institution whether incorporated or not having dealings with the Bank. 11. Thus, even if there is no pecuniary loss caused to the respondent bank, the regulations prohibits an officer either in his individual capacity or place himself or a member of his family to https://hcservices.ecourts.gov.in/hcservices/ have any pecuniary obligation with any person, firm or institution having dealings with the bank. The charge against the appellant that he had borrowed from the constituents of the respondent bank as contained in charge Nos.2, 3 & 5 stood proved and the other allegation that he stealthily removed the money from them alone was not proved. Thus the enquiry officer found that the appellant had borrowed money from constituents of the bank. That apart, the enquiry officer recorded a specific finding in respect of charge No.8, regarding a serious lapse in a sanction of loan though it was within the knowledge of the appellant, when no funds were available in the deposit account. After affording an opportunity to the appellant to submit his objections to the enquiry officer's report, the disciplinary authority considered the matter and passed the order of compulsory retirement on 03.09.1999. In the said order, after going through the materials on record, the disciplinary authority concluded that the appellant abused and misused his official position as an officer in the Advances Department and borrowed money from the constituents of the branch indiscriminately. Further, the appellant was also guilty of allowing loans against deposit, when the same have been given as security for other loans and after analyzing the enquiry officer's report, which infact has recorded a finding that the appellant had borrowed money from the banks constituents, who are small trades, vegetable vendors, etc., ultimately, the disciplinary authority concluded that the appellant has to be inflicted with the punishment of compulsory retirement. The appellate authority, the first respondent herein has also taken into consideration all relevant factors to be taken note of and concurred with the findings of the disciplinary authority. As noted in the order passed by the learned Judge, there was no serious contest as regards the charges leveled against the appellant or about the findings rendered by the enquiry officer. Having gone through the entire records in the instant case, we are unable to agree with the contention raised by the learned senior counsel appearing for the appellant that the learned Judge proceeded based on the allegations in respect of charges, which were not proved in the domestic enquiry. It is to be noted that the charges 1 & 8 were fully proved. Charges 2, 3 & 5 were partly proved and what was proved in these charges is the allegation that the appellant borrowed money from the constituents of the bank. Therefore, we see no error in the findings of fact rendered by the learned Judge. The appellate authority while concurring with the disciplinary authority has taken note of the entire materials and we find from the perusal of the order passed by the appellate authority dated 10.01.2000, that the appellate authority applied his mind to the contention raised by the appellant and independently came to a conclusion that the penalty imposed need not be interfered. On the question of inequality in the punishment no doubt such plea was not raised by the appellant in the writ petition, but it is seen from the documents filed in the additional typed set of papers, the charges framed against the Manager and Assistant Managers was in respect of certain procedural aspects to be https://hcservices.ecourts.gov.in/hcservices/ followed, while sanctioning loans and making other disbursement. The disciplinary authority in those cases, on facts came to a conclusion and imposed certain punishments. However, the case of the appellant is couched entirely on a different set of facts. When, there is a specific prohibition under the Regulation 15 (1) prohibiting, the officer from having any financial dealings with the constituents of the bank, it cannot be stated that the conduct of the appellant does not amount to a serious charge. Therefore, we are unable to agree with the contentions raised by the learned senior counsel appearing for the appellant in this regard. 12. The Hon'ble Supreme Court in the case of Nand Kishore Prasad, referred supra, relied by the learned senior counsel appearing for the appellant, the Hon'ble Supreme Court in paragraph 17 recorded the objections of the respondent before the Supreme Court and dealt with the scope of interference in disciplinary matters under Article 226 of the constitution. In our view this Judgment of the Hon'ble Supreme Court is of no assistance to the case of the appellant. In the case of Kasi M, referred supra, the Division Bench of this Court was examining the correctness of an order of removal passed against a Branch Manager of the respondent bank therein. The Division Bench after considering the various decisions of the Apex Court on the nature of punishment to be imposed vis-a-vis the nature of charge, on facts of the said case concluded that the lapse was only procedural and therefore, interfered with the punishment awarded. 13. The facts of the present case are different since, the finding against the appellant is that he borrowed from the bank constituents and this borrowal was not disputed by the appellant. Further, there are other serious proven charges against the appellant relating to sanction of loan transactions. Further, the factual finding of the authorities below is that the appellant misused and abused his position as Assistant Manager in the Advances Department and this conclusion is based on facts recorded by the enquiry officer and therefore considering the entire facts and circumstances of the case, we find that there is no disproportionality in the punishment imposed on the appellant. Further the Hon'ble Supeme Court in General Manager, Appellate Authority, Bank of India and another Vs. Mohd. Nizamuddin (2006) 7 SCC 410, while dealing with the proportionality of punishment imposed on a Bank officer for unauthorised absence held thus:- "9. It is now well-settled principle of law that the gravity of misconduct must necessarily be measured in terms of the nature of the misconduct. A bank officer holding the post of Middle Management Officer, Grade II which is a responsible post absented himself unauthorisedly for about three years which is undoubtedly detrimental to the public interest cannot be said to be not grave misconduct which would warrant dismissal from service. The High Court's view https://hcservices.ecourts.gov.in/hcservices/ that the punishment of dismissal from service on the proved misconduct is disproportionate to the gravity of the misconduct, in our view, is fallacious. There can never be a more grave misconduct than a bank officer holding a responsible post absenting himself unauthorisedly for a period of three years detrimental to the public interest." 14. The ratio of the above decision when applied to the present case can lead to the only conclusion that the punishment is proportionate to the gravity of misconduct committed by the appellant. It is a settled proposition that this Court shall not act as an appellate authority over the decision of the disciplinary authority more so in the case on hand, since the order of punishment was not challenged on any technical grounds. The scope of judicial review under Article 226 of the Constitution over the orders of the disciplinary authority could be made, when there was violation of the principles of natural justice or when, it is in violation of statutory regulation or when the decision is vitiated by consideration extraneous to the merits of the case, when on the very face of the order, it is wholly arbitrary or capricious that no reasonable person would have arrived at such conclusion. In the instant case none of these parameters are satisfied warranting interference by this Court under Article 226 of the Constitution of India. 15. For the above reasons, we find no grounds to interfere with the order of learned Judge in W.P.No.7293/2000, accordingly the writ appeal fails and its dismissed. However, there shall be no order as to costs. Sd/- Asst. Registrar. /true copy/ Sub Asst. Registrar. pbn To 1. The General Manager, (Operations II) Appellate Authority, UCO Bank, Head Office, No.10. B.T.M. Sarani, Calcutta -1. https://hcservices.ecourts.gov.in/hcservices/ 2.The Zonal Manager, Disciplinary Authority, UCO Bank, Zonal Office, 169, Thambu Chetty Street, Chennai – 1. + 1 cc to Mr.R.Vasudevan, Advocate Sr 29048 + 1 cc to Mr.Srinath Sridevan, Advocate Sr 28896 Order in W.A.No.899/2004 JRG (CO) RH (21.5) https://hcservices.ecourts.gov.in/hcservices/