IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated: 16.04.2008 Coram THE HONOURABLE Mr. JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE Mr. JUSTICE M.VENUGOPAL W.A.No.1439 of 2006 and M.P.No.1 of 2006 1.Canara Bank Rep. By its Chairman & Managing Director, Head Office, No.112, J.C.Road, Bangalore 560 002. 2.The Committee of the Board & Appellate Authority Canara Bank, Head Office, No.112, J.C. Road, Bangalore 560 002. 3.The Managing Director & Disciplinary Authority, Canara Bank, Head Office, No.112, J.C.Road, Bangalore 560 002. 4.The Board of Directors Canara Bank, Head Office, No.112, J.C. Road, Bangalore-560 002 .. Appellants/Respondents vs. S.P.Shanbhogue .. Respondent/Writ Petitioner PRAYER: Appeal filed under Clause 15 of the Letters Patent against the order passed by the learned single Judge in W.P.No.6015 of 1997 dated 09.08.2006. For Appellants : Mr.P.S.Raman, S.C. For Mr.P.R.Raman For Respondent : Mr.C.R.Chandrasekaran For Mr.Aiyar & Dolia https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT M.VENUGOPAL,J. This Writ Appeal is preferred by the appellants/ respondents as against the order of the learned single Judge in W.P.No.6015 of 1997 in allowing the writ petition. 2.The respondent/writ petitioner has filed W.P.No.6015 of 1997 praying to issue a Writ of Certiorarified Mandamus to call for the records pertaining to the order of the third respondent bearing No.IRS:DP:MC:CHF:3151:96 dated 18.1.1996 and the order of the second respondent dated 30.8.1996 and quash them, directing the first respondent to restore the petitioner to Senior Management Grade Scale IV together with usual and normal increments that are due to him along with other attendant benefits including promotion to Senior Management Grade Scale V. 3.The learned single Judge in his order has inter alia observed that 'the Appellate Authority has inflicted the punishment, and thereby, it is clear that the petitioner has lost the right of appeal, resulting the petitioner making an appeal to the Reviewing Authority, which is a Board and surprisingly, the Committee of Board has considered the review petition/appeal and it is stated that the Committee has nothing to do with the employment or the service conditions of the petitioner who is working in Scale IV and has allowed the writ petition for more than one reason'. 4.Aggrieved against the order passed by the learned single Judge in W.P.No.6015 of 1997 dated 09.08.2006, the respondents in the writ petition have preferred this Writ Appeal as appellants. 5.In the instant case, the facts that the respondent has been serving as Manager of first appellant Bank and while in service he has been subjected to disciplinary action and later retired in the year 2000 under the Special Voluntary Scheme are not in dispute. 6.The charges framed against the respondent/writ petitioner are that: (i)while he was working as Divisional Manager at Headquarters Road, Coimbatore Branch from 08.05.1987 to 05.06.1989, current account in the name of Shri.K.S.Prabhu, Share Broker, 99 Vimal 1st Floor/Dr.Alagappa Chettiar Road, Tatabad, Coimbatore was opened on 16.03.1989 and on the very next day of opening the account on 17.03.1989, he permitted TOD in the above current account and on 13.04.1989 another TOD was permitted by him when the earlier TOD permitted by him was outstanding and when the matter was taken up for recovery while he was working as Divisional Manager at Divisional Office, Tirunelveli, a D.D. for Rs.6,450/- favouring Shri.K.S.Prabhu was taken by him at Tirunelveli Junction Branch out of the amount drawn from his OD account; (ii)that there was no K.S.Prabhu living in the address given in the https://hcservices.ecourts.gov.in/hcservices/ Current Account Opening Form and there was only one Shri.K.V.Prabhu living at that address, who was enjoying an OD limit of Rs.50,000/- at Oppanakara Street, Coimbatore Branch and knowing fully well that Shri.K.V.Prabhu and K.S.Prabhu are one and the same, he had permitted TOD in the current account, thereby abetted impersonation to accommodate the party and exposed the Bank to financial risks and thereby failed to perform his duties with honesty, integrity, devotion and diligence and acted in the manner which is most unbecoming of a Bank Officer and thereby violated Regulation 3(1) read with Regulation 24 of the Canara Bank Officer Employees' (Conduct) Regulations 1976, a misconduct punishable under Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. 7.The Inquiry Authority, by his findings dated Nil, has concluded that the respondent/writ petitioner knew well Shri.K.V.Prabhu by virtue of his business dealings in Share Service Centre, at the time of opening of a current account in the name of Shri.K.S.Prabhu and in view of the share transactions/dealings with Share Service Centre, he intentionally caused opening of an account in the name of Shri.K.S.Prabhu and in order to accommodate Shri.K.V.Prabhu, Proprietor of M/s.Share Service Centre, he allowed TOD in the account of Shri.K.S.Prabhu and to this extent, the charge against him has been proved and that he has failed to perform his duties with honesty, integrity, etc. In regard to the charge of impersonation of Shri.K.V.Prabhu as K.S.Prabhu and his knowledge about this, the same has been held to be not proved by the Inquiry Officer to the effect that K.V.Prabhu and K.S.Prabhu are one and the same. 8.The third appellant/Disciplinary Authority, by his order dated 06.03.1995, has agreed with the findings of the Inquiry Authority to the extent that 'the respondent/writ petitioner has intentionally caused opening of an account in the name of Shri.K.S.Prabhu and in order to accommodate Shri.K.V.Prabhu, Proprietor of M/s.Share Service Centre, he allowed TOD in the account of Shri.K.S.Prabhu' and in regard to the impersonation charge has held that 'the respondent/writ petitioner himself has stated that he knew K.S.Prabhu as Proprietor of M/s.Share Service Centre and as per records, the Proprietor M/s.Share Service Centre is actually Shri.K.V.Prabhu and that it is clearly established that K.S.Prabhu and K.V.Prabhu are one and the same and inspite of knowing this fact he had informed Shri.Nagesh Pai to introduce the account as K.S.Prabhu, and further allowed overdrawings that too for passing cheques issued in favour of Share Service Centre etc. and disagreed with the findings of the Inquiry Authority. 9.However, the third appellant after considering the representation of the respondent dated 15.4.1995 has imposed the punishment of reduction to a lower cadre i.e. from scale IV to scale III on the delinquent officer as per regulation 4(e) of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. 10.The respondent has preferred an appeal to the Board of Directors of the Bank, through proper channel and the Committee of the Board has rejected the appeal on 30.08.1996 and confirmed the punishment which was challenged by filing W.P.No.6015 of 1997 before this Court. https://hcservices.ecourts.gov.in/hcservices/ 11.According to the learned counsel for the appellants, the learned single Judge erred in re-appreciating the evidence recorded in the Domestic Enquiry, which is beyond the scope under Art.226 of the Constitution of India and that there is overwhelming evidence to show that the respondent knew K.V.Prabhu of M/s.Share Service Centre, which has not been taken note of by the learned single Judge and the fact that the respondent took a demand draft from his personal account to clear the liability, exhibits his involvement in accommodating Shri.K.V.Prabhu and that Shri.K.V.Prabhu posed himself as K.S.Prabhu to open the current account and the respondent being aware of the same has allowed opening of the current account in the name of Shri.K.S.Prabhu, thereby knowingly permitted impersonation which has not been appreciated by the Inquiry Authority and the learned single Judge in their proper perspective, inspite of sufficiency of evidence available in the Domestic Enquiry and the fact that the object to accommodate a customer against the Bank Rules and the resultant risk that the Bank has been exposed to, has not been borne in mind primarily by the learned single Judge at the time of passing of the order and that though the third appellant/Managing Director is the Appellate Authority in so far as the respondent is concerned, the punishment has been inflincted by him being the next higher authority as per Regulation 5(3) of Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 and this fact has not been taken into consideration by the learned Single Judge and the appeal filed by the respondent has been placed before the Committee of the Board, i.e. next authority to the third appellant and inasmuch as the respondent's appeal has since been considered by an Authority higher than the Managing Director, in any event, no prejudice has been caused and this has not been looked into by the learned single Judge and therefore, prays for allowing the Writ Appeal. 12.The learned counsel for the respondent urges that there is no evidence in the domestic enquiry to show that the respondent admitted that he knew K.V.Prabhu and that the respondent has only stated that he knows K.S.Prabhu, having an establishment by name Share Service Centre and that equally there is no evidence about the very existence of K.V.Prabhu and that the said Prabhu has not been seen by any of the Management witnesses and inasmuch as the very existence of K.V.Prabhu has not been established, the question of his knowing K.V.Prabhu at the time of opening the current account for K.S.Prabhu or his nexus with K.V.Prabhu as K.S.Prabhu is unsustainable and therefore, the question of impersonation does not arise and there is no iota of evidence that the respondent has abetted impersonation to accommodate the party and exposed the Bank to financial risks. 13.The further plea raised on the side of the respondent is that the authority to impose penalty is the Executing Director as the Managing Director is the Appellate Authority according to the Schedule 2 D and A Regulations (as it then was), though regulation 5(3) enjoins that any authority higher in rank than the third appellant can impose penalty, the Managing Director being the Appellate Authority ought not to have imposed the penalty, thereby depriving the right of appeal to the respondent and that the 'Committee of Board' has no authority to deal with the appeal as per D and A Regulations and on this ground, the https://hcservices.ecourts.gov.in/hcservices/ entire proceedings is a nullity. 14.According to the learned counsel for the respondent, the Disciplinary Authority is the Executive Director and the Appellate Authority is the Managing Director (3rd appellant) and the Reviewing Authority is the Board of Directors (4th appellant) and therefore, the Committee of Directors is not a forum to deal with the disciplinary matters relating to scale IV as per D and A Regulations. 15.Another contention put forward by the learned counsel for the respondent is that the third appellant has consulted the Central Vigilance Commission and that neither the enquiry proceedings nor the findings of the third appellant has any reference to the said consultation and that the respondent has not been put on notice in this regard. 16.We have heard the learned counsel for the parties and noticed their rival contentions. 17.We are conscious of the fact that the charges in a disciplinary proceedings are not required to be proved like, the criminal case i.e. proof beyond all reasonable doubt and what is required is only preponderance of probabilities. 18.It is relevant to point out that the term of 'misconduct' is a generic term and its synonyms are: (1)Misbehaviour; (2)Misdemeanour; (3) Mismanagement; (4)Misdeed; (5)Delinquency; and (6)Offence. In Shroud's Judicial Dictionary, the term 'misconduct' means arising from ill- motive; acts of negligence, errors of innocent mistake do not constitute such misconduct. The omission to do what is expected of a person to do constitutes misconduct. Whereas, if such failure is directed to intentionally, cause mischief or loss to any person; then it is called 'wilful misconduct'. Therefore, misconduct is a definite word with a specific connotation. In fact, the concept of misconduct in an employer and employee relationship is based upon the nature and relationship itself and implied and express conditions of services. 19.A perusal of the orders passed in the writ petition to the effect that 'when a clear finding is given by Enquiry Officer, the Disciplinary Authority did not accept the inquiry report and without assigning any convincing and cogent reason and without any evidence has issued notice, reducing the rank of the petitioner from the Category Grade IV to III and thereafter, the Managing Director of Bank has issued the final orders' etc. indicates that the learned single Judge has made an endeavour to reappreciate the entire matter as if exercising appellate jurisdiction. 20.At this stage, it is to be pointed out that the report of the Inquiry Officer is intended to assist the Disciplinary Authority in coming to a conclusion about the guilt of delinquent. The findings of the Inquiry Officer or recommendations are advisory in character and are not binding on Disciplinary Authority, who can disagree with them and come to his own assessment of evidence forming part of record of inquiry. It cannot be gainsaid that on receipt of report and record of https://hcservices.ecourts.gov.in/hcservices/ inquiry, the Disciplinary Authority will have to examine them carefully and dispassionately and after satisfying itself that the delinquent has been given a reasonable opportunity to defend himself has to record its findings in respect of each Article of Charge saying whether in his opinion it stands proved or not. However, if Disciplinary Authority disagrees with the findings of the Inquiry Officer on any Article of Charge, it will, while recording its own findings, also record reasons for disagreement. 21.For the better appreciation of the entire gamut of the matter in the Domestic Enquiry, as seen from the material papers placed on record, it is pertinent to point out that M.W.1-Vaidhyanathan has stated that he and M.W.2-Parthasarathy met Satish Prabhu (a Share Broker of Jai Ganesh and Co. or Ganesh and Co. and a brother-in-law of Ganesh) who informed him that he is not that Satish Prabhu, who borrowed money from the Bank and that one K.V.Prabhu, his brother might have obtained this facility and further that Ganesh also has informed that there is no Satish Prabhu in their family, but there is one K.V.Prabhu and furnished the Bombay address. 22.M.W.2-Parthasarathy, who submitted his investigation report in regard to the long outstanding TOD of Rs.24,500/- in the current account of K.S.Prabhu, at Headquarters Road, Coimbatore has stated that one K.V.Prabhu was having an OD account at their Oppanakkara Street in M/s.Share Service Centre name with a limit of Rs.50,000/- and when the said account was outstanding, the said Prabhu opened a current account at their Headquarters Road, Coimbatore Branch in K.S.Prabhu's name and that the said Prabhu signed in the account opening form as K.S.Prabhu and that the handwriting in the account opening forms of M/s.Share Service Centre and K.S.Prabhu are one and the same and that the residential address of the Proprietor of M/s.Share Service Centre i.e. K.V.Prabhu and K.S.Prabhu is also one and the same. He has also further stated that a TOD of Rs.24,500/- was allowed in the current account of K.S.Prabhu on 17.03.1989, i.e., on the very next day of opening of the account and the account at Headquarters Road was introduced by Nagesh Pai (the then Manager of Headquarters Road, Coimbatore Branch), who stated that he knew K.S.Prabhu for the past two years. 23.From the statement of M.W.2-Parthasarathy, it transpires that a part of the amount was remitted on 13.04.1989 when there was a debit balance of Rs.2,286.25, further TOD was allowed on 13.04.1989 in order to pass a cheque for Rs.22,390/- and that the TODs were authorised by the respondent, the then Divisional Manager and since the TOD was not regularised the Branch took the issue with the respondent (while he was DM of Tirunelveli Divisional Office) and that there was a remittance of Rs.6,450/- by way of DD favouring K.S.Prabhu sent from Tirunelveli and Satish Prabhu, who is the brother of K.V.Prabhu informed him that the respondent is a family friend and he knows his parents and his brothers for many years and that there is no K.S.Prabhu and his brother is K.V.Prabhu and he is Satish R Prabhu known as S.R.Prabhu and signs as 'Satish'. 24.It is the further statement of M.W.2-Parthasarathy that the said Satish R Prabhu informed him that the respondent handed over a letter to https://hcservices.ecourts.gov.in/hcservices/ S.R.Prabhu's mother (AOD form) in Mangalore in December 1991 and asked her to get it signed by Shri.S.R.Prabhu and send it to him etc. Moreover, M.W.2-Parthasarathy also is reported to have met A.Ganesan, Coobligant to the OD limit sanctioned to M/s.Share Service Centre at Oppanakkara Street and the brother-in-law of K.V.Prabhu and S.R.Prabhu and that the said Ganesan reiterated the version given by Satish R Prabhu and said that the respondent and Nagesh Pai knew about the transaction. 25.The statement of M.W.3-Venkatachalam is to the effect that the DD for Rs.6,450/- has been purchased by K.S.Prabhu (at Tirunelveli Junction Branch), drawn on Coimbatore dated 04.05.1990, out of cash cheque for Rs.14,000/-, adjusted from cash and that the cheque has been drawn by the respondent and that K.S.Prabhu has signed the DD application and the DD has been received by Palani. 26.M.W.4-Palani (sub-staff) in the Regional Office, Tirunelveli has testified that in the DD challan for the DD purchased by the Divisional Manager, he has signed and that he has handed over the DD to the Divisional Manager in the afternoon and no one has been in the cabin, other than the Divisional Manager and that the DD is for Rs.6,000/- and that he has received the balance sum against the cheque of Rs.14,000/- and gave the balance to the Divisional Manager. 27.M.W.5-Nagesh Pai, in his testimony has stated that K.S.Prabhu used to come to his Branch very often to meet the respondent and he knew K.S.Prabhu through the respondent and later came to know his father Prabhu, who was the Divisional Manager of Corporation Bank and his brother-in-law Ganesh Bhat, (Distributor of Mangalore Ganesh Beedi) and since he knew through respondent, he introduced the account. Furthermore, M.W.5-Nagesh Pai has also stated that as soon as the explanation has been called for from Bangalore, SSO he approached the respondent, to help him in giving reply to the letter and then the respondent sent one draft letter from Tirunelveli to his address and requested him to reply in the same line and that the respondent asked him to introduce the account of K.S.Prabhu. 28.At this stage, one cannot ignore an important fact that the respondent in his letter dated 31.03.1992 sent to the Deputy General Manager of Madurai Circle has categorically stated that he knows K.S.Prabhu, a Share Broker of M/s.Share Service Centre and that on 04.05.1990 the said K.S.Prabhu called on him at Tirunelveli in regard to the share transactions, he has entered into with him and after calculating a sum of Rs.6,470/- payable to him in respect of the said share transaction he wanted to ensure that this amount is to be credited to his TOD balance at Headquarters Road, Coimbatore. 29.It is not out of place to make a mention that in a Domestic Inquiry, strict rules of evidence are not applicable as per Indian Evidence Act. All materials which are logically probative for a prudent mind are permissible. For hearsay evidence there is no allergy, provided it has credibility and reasonable nexus. Admittedly, sufficiency of evidence in proof of the finding by an Inquiring Authority is beyond scrutiny. As a matter of fact, the expression 'sufficiency of evidence' https://hcservices.ecourts.gov.in/hcservices/ enjoins existence of some evidence which connects the charged officer with the misconduct alleged against him. 30.The learned counsel for the appellant cited the decision in J.D.Jain V. The Management of State Bank of India and another (AIR 2000 SC 22) wherein the Hon'ble Apex Court has observed that "in departmental proceedings the guilt need not be established beyond reasonable doubt, proof of misconduct may be sufficient and that the Tribunal committed an error in holding that the finding of the domestic enquiry was based on "hearsay" evidence, and that the law is well settled that strict rules of evidence are not applicable in a domestic enquiry". 31.The aforesaid testimonies of M.W.1 to M.W.5 coupled with the letter dated 31.03.1992 marked as D.E.1 of the respondent play a significant role in the instant case on hand. 32.Though a plea is taken by the respondent that there is no evidence in the Domestic Enquiry to show that the respondent admitted that he knew K.V.Prabhu and that the respondent has only stated that he know K.S.Prabhu and further that there is no evidence about the very existence of K.V.Prabhu, it is to be pointed out that from the material placed before us it transpires that the respondent knew K.V.Prabhu by means of his business dealings in Share Service Centre at the time of opening of a current account in the name of K.S.Prabhu and since the respondent knows K.S.Prabhu as Proprietor of M/s.Share Service Centre and inasmuch as Shri.K.V.Prabhu is the Proprietor of M/s.Share Service Centre, it is quite evident, circumstantially, that K.S.Prabhu and K.V.Prabhu are one and the same, notwithstanding the fact that the respondent has asked Shri.Nagesh Pai to introduce the account as K.S.Prabhu and therefore, the contention of the respondent in this regard is not accepted. 33.In fact, it is the specific evidence of M.W.2-Parthasarathy before the Inquiry Authority that K.V.Prabhu was having an account at their Oppanakkara Street Branch in the name of M/s.Share Service Centre with a limit of Rs.50,000/- and that the said account was outstanding when the said Prabhu opened a current account at their Headquarters Road, Coimbatore Branch in K.S.Prabhu's name and that the said Prabhu signed in the account opening form as K.S.Prabhu and that the handwriting in the account opening form of M/s.Share Service Centre and K.S.Prabhu are one and the same and that the residential address of the Proprietor of M/s.Share Service Centre i.e., K.V.Prabhu and K.S.Prabhu is also one and the same and that Satish Prabhu, who is the brother of K.V.Prabhu informed him that the respondent is a family friend and he knows his parents and brothers for many years and that there is no K.S.Prabhu and his brother is K.V.Prabhu and further that A.Ganesan, Coobligant to the OD limit sanctioned to M/s.Share Service Centre at Oppanakkara Street and the brother-in-law of K.V.Prabhu, S.R.Prabhu has also reiterated the version of Satish R Prabhu, who informed that the respondent and M.W.5-Nagesh Pai knew about the transaction. At this stage, it is specifically to be mentioned that the respondent has not examined himself in the Domestic Enquiry and further he has not also produced any witness to be examined on his side. Of course, on the side of respondent, before the Inquiry Authority as many as nine documents https://hcservices.ecourts.gov.in/hcservices/ D.1 to D.9 were marked. 34.Another important factor that cannot be brushed aside in the case on hand before us is that a DD for Rs.6,450/- has been drawn by K.S.Prabhu at Tirunelveli Junction Branch payable at Coimbatore, dated 04.05.1990, out of cash cheque for Rs.14,000/-, adjusted from cash and that the cheque has been drawn by the respondent and that K.S.Prabhu has signed in the DD application, which is not a favourable circumstance in favour of the respondent. Moreover, the act of the respondent sending a draft letter from Tirunelveli to M.W.5-Nagesh Pai's address, requesting him to reply in the same line when explanation was called for from Bangalore SSO will not, in any way, help the case of the respondent any further. 35.Suffice it to point out that the materials available on record unimpeachably brings home the fact that the respondent has known K.V.Prabhu at the time of opening of an account in the name of K.S.Prabhu. It cannot be in dispute that a departmental proceeding stricto sensu is not a judicial proceeding and that the findings in the departmental proceedings can be based on preponderance of probabilities. Undoubtedly, the inferences cannot be drawn based on conjectures or surmises. It is not out of place to make a mention that the respondent has taken a DD from his personal account to clear the liability and therefore, his action in this regard is not above Board, in our considered opinion. 36.It cannot be gainsaid that in Union Bank of