IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.06.2008 CORAM THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.No.1475 of 2004 P.Vaiyapuri ... Petitioner vs. 1. The Executive Director-Reviewing Authority, Indian Bank, Head Office, Post Box No.1384, No.66, Rajaji Salai, Chennai-1. 2. The General Manager-Appellate Authority, Indian Bank, Head Office, Post Box No.1384, No.66, Rajaji Salai, Chennai-1. 3. The Assistant General Manager- Disciplinary Authority, Indian Bank, Circle Office, Kamaraj Salai, Pondicherry. ... Respondents Writ petition is filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, to call for the records of the first respondent communicated under reference No.2061 VG-2003, dated 13.05.2003, quash the order of the first respondent, dated 07.05.2003, confirming the order of the second respondent dated 14.08.2002 and that of the third respondent dated 23.01.2002 and direct the respondents to reinstate me into the service with all consequential monetary and other service benefits. For Petitioner : Mr.S.V.Jayaraman, SC for Ms.C.Sangamithirai For Respondents : Mr.M.Vijayan for M/s.King and Partridge O R D E R The petitioner was an Assistant Manager in the respondents-Bank. On 22.12.1999, the petitioner was suspended from duty on the ground that he has exceeded the Managerial Discretionary Limit while sanctioning loan. The suspension was followed by a charge memo, dated 24.01.2000 and an enquiry officer was appointed, who submitted his report holding charges 12 and 17 as not proved, charges 5, 6, 11 and 13 as partly proved and the remaining charges as proved. Thereafter, the petitioner was served with a show cause notice dated 28.11.2001 along with a copy of the Enquiry report, for which, he submitted his reply on 04.12.2001. The Assistant General Manager-Disciplinary Authority, Pondicherry concurred with the findings of the Enquiry Officer and by order dated 23.01.2002, dismissed the petitioner from service. Aggrieved by the same, he filed an appeal before the General Manager-Appellate Authority, second respondent herein, on 28.02.2002. Without adverting to the points raised and without following the procedure prescribed in the Service Regulations, the appellate Authority, by order dated 14.08.2002, has rejected the appeal and passed a non-speaking order. The Statutory revision filed by the petitioner to the Executive Director- Reviewing Authority, was also dismissed on 17.05.2003. Left with no other option, the petitioner has preferred the present Writ Petition. 2. Though the petitioner has assailed the findings of the Enquiry Officer as perverse and not based on evidence, raised a plea of violation of Principles of Natural Justice on the ground that the Charge- memo did not contain the list of witnesses and the documents relied on by the Management and thus, he was prevented from effectively defending himself in the enquiry, besides challenging the proportionality of the punishment, Mr.S.V.Jayaraman, learned senior counsel appearing for the petitioner confined his submissions only to the procedural irregularity committed by the appellate authority, in conforming the orders of the third respondent, dismissing the petitioner from service. 3. Referring to the order passed by the General Manager/appellate authority, the second respondent herein, learned counsel for the petitioner submitted that there are factual discrepancies in the order of the appellate authority and without adverting to the grounds raised in the appeal, he has passed a non-speaking and laconic order, by merely extracting the grounds of appeal and therefore, failed to exercise the jurisdiction vested in him, under the Indian Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 (in short, the Regulations). To illustrate, he submitted that though the petitioner has stated that there was a delay in submitting the AUF statements to the Controlling Office, the appellate authority has committed a factual error in coming to the conclusion that the said returns were not at all submitted to the said Authority. He further submitted that, being the final authority to adjudicate the facts, the appellate authority is bound to examine the report of the Enquiry Officer, with reference to the defence and pass a detailed order on the appeal Memorandum. Therefore, learned senior counsel prayed that the matter may be remitted back to the appellate authority for fresh consideration to pass a detailed order, considering all the grounds raised in the appeal. 4. Per contra, Mr.Vijayan, learned counsel appearing on behalf of the Management, referring to Paragraph 9 of the counter affidavit, submitted that the petitioner was given adequate opportunity to submit his comments on the Enquiry Offficer's report and only after considering the entire records in accordance with law, the disciplinary Authority, vide order dated 23.01.2002, imposed a punishment of dismissal from service, by passing an elaborate order. 5. Placing reliance on the decisions of the Supreme Court in Ram Kumar v. State of Haryana reported in AIR 1987 SC 2043 and G.M. (Personnel Wing), Canara bank v. M.Raja Rao reported in 2001 (II) LLJ 819, he submitted that the disciplinary Authority, while considering the enquiry report, has passed a detailed order, by referring to the charges and the defence, and therefore, considering the gravity of the misconduct and the standards of honesty and integrity to be maintained by a Bank Officer, who is dealing with the money of the depositors and the customers, the punishment awarded is not disproportionate and there is no need to interfere with the same. 6. Learned counsel for the respondents further submitted that the discrepancy said to have occurred in narrating the facts in the appellate order is not grave and it is suffice that the Appellate Authority considers the enquiry officer's report, defence of the delinquent and he has to examine whether the facts on the basis of which the departmental action has been initiated have been established and whether the penalty imposed on the delinquent is commensurate with the gravity of the charge, apart from procedure followed in the enquiry. He submitted that the appellate authority need not pass a detailed order like that of the original authority, while concurring with his views and it is enough if he gives brief reasons. Heard the counsel appearing for the parties and perused the materials available on record. 7. The charges levelled against the petitioner in the charge memo, dated 24.01.2000 are as follows: "(a) that I altered the date of receipt of a communication of the Regional Manager from 08.12.1999 to 09.12.1999 under which my MDL power were withdrawn and after making such alterations, I sanctioned three loans under MDL powers for a total amount of Rs.34,000/- on 09.12.1999. (b) that I failed to submit AUF statements (Audit Return Fortnightly) to the Zonal office. (c) that I did not include in the AUF statements, 11 loans of a total amount Rs.2.09 lakhs and in respect of 2 loans, the amount sanctioned was mentioned as Rs.1,05.000/- instead of Rs.1,70,000/-. (d) that I failed to create equitable mortgage by way of additional security in respect of the loan extended to 6 persons for the amount of Rs.71,500/-, Rs.33,000/-, Rs.34,500/-, Rs.1,21,500/-, Rs.39,000/- and Rs.41,000/- respectively. (e) that I obtained quotations and receipts from 3 persons as though they were in trade, but actually not so, and that the amount so disbursed on such papers, worked out to Rs.3,06,300/-. (f) that I availed a loan against Ind Prakash Units in which quarterly interest was not charged from June 1998 to September 1999, leaving a subsisting loan account of Rs.4,754/- and that certificates were not held with documents. (g) that I passed vouchers on 4 occasions for the purchase of stamps for a total amount of Rs.5,300/- but neither stamps were brought nor the amount repaid. (h) that I allowed 46 Demand Promissory Note loans for a total value of Rs.2,13,546/- to become barred by limitation. (i) that I exceeded the discretionary powers in respect of sanction of loans to 8 individuals totalling to Rs.6,09,500/-. (j) that I flouted the norms relating to Scale of Finance in respect of 17 loans, whose total amount was Rs.2,59,000/- as against my eligibility of Rs.1,90,172/- leading to an excess finance of Rs.68,828/-. (k) that I allowed reimbursement in respect of milch animals and tyre-cart loans. (l) that I allowed transfer of funds to the extent of Rs.1,32,345/- lying in subsidy reserve fund account for purposes not prescribed under the scheme. (m) that I allowed a sum of Rs.1,02,000/- to one Mr.Mani on 05.07.1999 for buying milch animals for 10 persons though Mani's name does not appear as seller of animals. (n) that I sanctioned a STPL (Short Term Production Loan) to one Mr.A.Ramanathan for Rs.25,000/- but filled up the amount as Rs.2,500/- in the DPN. (o) that I handled the token register and cash scroll in a very deficient manner resulting in the total amount mentioned in the token register not tallying with the total arrived by the cashier in the Rough Book. (p) that on 52 occasions, I disbursed cash totalling to Rs.7.58 lakhs by way of term loans, contrary to the procedure for making disbursement by way of DD, BPO. (q) that I sanctioned STPL of Rs.17,000/- on 14.10.1999 in the name of Anagamuthu, though the lands stood in the name of one Ganapathy in the Chitta Adangal. (r) that I sanctioned fresh loans to persons who were already over due in respect of earlier loans. (s) that I did not get Secured Books tallied within the periodicity prescribed, but gave a certificate on 30.10.1999 as though they were tallied and (t) that special adhesive stamps were not affixed in several loan documents and that the stamp account was left with a credit balance instead of a debit balance." 8. After a detailed enquiry, the Enquiry Officer has held that except charges 12 and 17, all the other charges as proved. On consideration of the reply of the petitioner, dated 04.12.2001, Enquiry Officer's report and the exhibits produced, the disciplinary Authority has agreed with the conclusion of the enqiury officer in respect of Charges 1,2,4,9,15,16,19 and 20 and Charges 3, 5, 6, 8, 10, 11 and 13 were held as partly proved. While disagreeing with the Enquiry Officer's report, the disciplinary authority, found that Charges 12 and 17 were not proved. Ultimately, the disciplinary Authority came to the conclusion that the petitioner has altered the date of receipt of the letter, withdrawing his discretionary power, so as to cover up three loans granted after his powers were withdrawn (Charge No.1); the petitioner has not revealed the correct position of loan in AUF (Charge 3); the petitioner has not obtained additional security (Charge 4); the petitioner has not disbursed loans by obtaining quotations from non existing firm/non traders (charge 5); the petitioner has not obtained renewal document (charge 8); the petitioner has exceeded his discretionary powers to grant advance (charge 9); the petitioner has financed in excess of scale of finance (charge 10); the petitioner has sanctioned loan as reimbursement (charge 11); the petitioner has made payment of proceeds of milch animal loan to a person other than seller (charge 13); the petitioner has obtained DPN wrongly filled in words (charge 14); the petitioner has handled token register and cash scroll register deficiently and improperly (charge 15); the petitioner has resorted disbursement of term loans in cash which affected end use of the loan and creation of asset for which loan was given (16); and the petitioner has sanctioned loan to borrowers having overdue (charge 18 are very serious in nature. 9. On the basis of the proved charges, the disciplinary Authority found that Rs.10.89 lakhs along with MOI Rs.2.07 Lakhs were due in respect of accounts mentioned in the imputations, which had turned into a Non-performing Asset, difficult for recovery, resulting in financial loss to the Bank. Therefore, in exercise of his powers under 4(j) of the Regulations, the Disciplinary Authority has dismissed the petitioner from service. 10. While considering the plea of the delinquent that the punishing authority has not applied his mind before passing the impugned order and that he has not given any reasons justifying the same, the Supreme Court in Ram Kumar v. State of Haryana reported in AIR 1987 SC 2043, at Paragraph 8, after extracting the operative portion of the order of the Punishment Authority, held that when the Punishing Authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss the evidence and come to the same findings, as that of the Enquiry Officer and give the same reasons for the findings. 11. At thus juncture, it would be relevant to extract the operative portion of the order of the punishing authority in the above reported judgment, "I have considered the charge-sheet, the reply filed to the charge-sheet, the statements made during the enquiry, the report of the Enquiry Officer, the show cause notice, the reply filed by the delinquent and other papers and that no reason is available to me on the basis of which reliance may not be placed on the report of the Enquiry Officer. Therefore, keeping these circumstances in view, I terminate his service with effect from the date of issue of this order." 12. While upholding the said order, the Supreme Court, at Paragraph 8, observed as follows: "In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him, the question of non- compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order." 13. As per Regulation 17(4) of the Indian Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, the Appellate authority shall on receipt of the comments and records of the case from the authority whose order is appealed against, consider whether the order of suspension/findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders. The Appellate authority is empowered to pass an order confirming, enhancing, reducing or setting aside the penalty/suspension or remitting the case to the authority which imposed the penalty or to any other authority with such directions as it may deem fit in the circumstances of the case. 14. The Supreme Court in G.M.(P.W.), Canara Bank v. M.Raja Rao reported in 2001 (II) LLJ 819, had an occasion to consider as to whether the appellate authority is required to pass a detailed order, while concurring with the decision of the disciplinary authority. In the above reported judgment, a learned Single Judge of the Karnataka High Court did not find any infirmity with the disciplinary Proceedings and dismissed the Writ Petition filed by the delinquent. On appeal, the Division bench came to the conclusion that the disciplinary Authority, while agreeing with the report of the Enquiry Officer, is required to give reasons and the appellate authority has to consider the appeal in accordance with the Banking Regulations and set aside the order of removal from service. Agreeing with the contentions raised in the appeal preferred by the Bank, the Supreme Court, at Paragraphs 4, 5 and 6 held as follows: "4. ...........The order of the Disciplinary Authority unequivocally indicates that he has gone into the findings of the Enquiring Authority and agreed with the same. When a Disciplinary Authority agrees with the findings and conclusions of the Enquiring Authority, it is not necessary in law to give any detailed reasons as to why he intends to agree with the findings of the Enquiring Authority. It is of course true that in the matter of award of punishing if Disciplinary Authority considers materials other than the materials which had been produced before the EO then the delinquent must be given a notice thereof or else the conclusions of the Disciplinary Authority would get vitiated. 5. So far as the order of the Appellate Authority is concerned, it is undoubtedly true that as provided in the Regulation, the Appellate Authority is required to pass a reasoned order. The question further arises for consideration is even though the order may be a reasoned order, can it be held to have suffered from any infirmity because all the contentions raised as alleged by the counsel for the delinquent, have not been dealt with? 6. On examining the order of the Appellate Authority, we are of the considered opinion that the Appellate Authority not only afforded opportunity of hearing to the delinquent, but also considered the contentions raised and then taking a totality of the entire circumstances agreed with the order of the Disciplinary Authority and dismissed the appeal. In that view of the matter, we do not think that any infirmity has been committed by the Appellate Authority in not giving detailed reasons on the contentions raised by the delinquent. In this view of the matter, the Division Bench also committed error in holding that the Appellate Authority committed a serious infirmity in dismissal of the appeal in question." 15. In a recent decision of the Supreme Court in 2008 (1) Supreme Today 617, (Divisional Forest Officer, Kottagudem's case) one of the contention was that the appellate/revisional authorities have failed to consider the grounds raised before them and that the orders passed thereto are cryptic without any detailed reasons. While dealing with the above said contention, the Supreme Court re- affirmed the decisions rendered earlier in R.P.Bhatt's case cited supra and Ram Chander v. Union of India reported in 1986 (3) SCC 103 and at Paragraph 19 of the judgment, held as follows: "19. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum, but in our view, in the interests of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum." 16. The order of the appellate authority is extracted hereunder: "Evidences adduced in the inquiry reveals that the appellant while functioning as Branch Manager of Kandachipuram Branch had indulged in non-submission of AUF returns to Controlling Office which vital statement was to exhibit the loans granted by him. His such non-submission resulted in withdrawal of his discretionary powers by the controlling authority. The date of receipt of the letter withdrawing his discretionary powers was altered and the appellant indulged in granting loans to the borrowers despite knowing well that the Controlling Office withdrew his discretionary powers. Excepting the appellant, being the Branch Manager, no body else would have the inclination to alter the date of receipt of the referred letter withdrawing his discretionary powers. Evidences adduced establish that CSO had indulged in such an act detrimental to the interest of the Bank which tells up on his doubtful integrity and dishonesty. Moreover the appellant exceeded his discretionary powers and granted loans limit as levelled in Charge No.9. This charge is established to the extent adduced in the inquiry. Appellant's action in sanctioning loans for exceeding his powers cannot be construed as an act done for the best interest of the bank, since most of such advances are proving difficult of recovery. He had flouted lending norms and allowed several documents to get time barred. Hence, concurring with the proved charges, the Disciplinary Authority had imposed on him the punishment of dismissal from service." 17. Examination of the above order reveals that the appellate authority has considered the gravity of charges, explanation offered by the petitioner, evidence adduced during the course of enquiry, conduct expected to be maintained by a Bank man, who is dealing with the public deposits and customers, prescribed norms and above all, the conduct of the petitioner in exceeding the Managerial Discretionary Limit while sanctioning advances, which proved to be difficult for recovery of money. The appellate authority has not only considered the above materials, but also given reasons, indicating his mind while concurring with the views of the disciplinary authority. As rightly contended by the learned counsel for the petitioner, the appellate authority need not rewrite an order, like that of the original authority and it is enough, there is application of mind to the relevant factors mentioned in Regulation 17(4) of the Indian Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. In the backdrop of the decisions of the Apex Court, I am unable to subscribe to the submission of the learned senior counsel for the petitioner that the appellate authority has passed a laconic order, without application of mind. The factual discrepancies stated to have occurred in the appellate order, in my view, would not materially alter the findings recorded by the Enquiry Officer/Disciplinary Authority. The error pointed out by the learned senior counsel for the petitioner cannot be termed as a perverse finding or lack of appreciation of evidence and other materials referred to in the appellate order. In view of the above, I do not find that there is any illegality or procedural irregularity in considering the statutory appeal of the petitioner as per Regulations 17(4) of the said Regulations. 18. While considering the standards of honesty and integrity to be maintained by the Bank officials and the scope of Judicial Review, in interfering with the punishment awarded to the delinquent, the Supreme Court in Domah Panna Sagar Rural Regional Bank v. Munna Lal Jain reported in 2005 (10) SCC 84, at Paragraphs 12, 13 and 17, held as follows: "12. In B.C. Chaturvedi v. Union of India it was observed: (SCC p.762, para 18) 18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. 13. In Union of India v. G. Ganayutham this Court summed up the position relating to proportionality in paras 31 and 32, which read as follows: (SCC pp. 478-80) 31. The current position of proportionality in administrative law in England and India can be summarised as follows: (1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not