IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE ELEVENTH DAY OF APRIL TWO THOUSAND AND EIGHT PRESENT THE HON'BLE SRI JUSTICE C.V.RAMULU WRIT PETITION No.21301 of 2004 Between: M.Sundareswaran, S/o M.Muthukrishnan, Regional Office, Bathinda Punjab State, Presently residing at Hyderabad ..... PETITIONER AND 1 The Deputy General Manager (Per.) Oriental Bank of Commerce, Harsha Bhavan, E- Block, Connaught Place, New Delhi 2 The General Manager (per.) Oriental Bank of Commerce, Harsha Bhavan, E- Block, Connaught Place, New Delhi 3 The Chairman and Managing Director, Oriental Bank of Commerce, Harsha Bhavan, E- Block, Connaught Place, New Delhi 4 The Executive Director/ Reviewing Authority, Oriental Bank of Commerce, Harsha Bhavan, E-Block, Connaught Place, New Delhi ....RESPONDENTS Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue a Writ, Order or direction more in the nature of Writ of Certiorari calling for the records relating to order No.HO.PER(DAD)/4009 dated 4-12-2003 and the consequential Appellate Orders No.HO:PER:DAD/7039 dated 30th September, 2004 and quash the same by holding them as illegal, bad, arbitrary and violative of Principles of natural justice and to further direct the respondents to reinstate the petitioner into service with all consequential benefits such as arrears of pay, continuity of service, promotion to the next higher cadres and to pass such other order or orders as this Hon'ble Court may deem fit and proper in the circumstances of the case. Counsel for the Petitioner: Mr.J.R.MANOHAR RAO Counsel for the Respondent : Mr.B.S.PRASAD The Court made the following : W.P.No.21301 of 2004 O R D E R: This Writ Petition is filed seeking a Certiorari to call for the records relating to Order No.HO.PER (DAD)/4009, dated 4-12-2003 and the consequential Appellate Order No.HO:PER:706:5496, dated 17-5-2004 and Review Order No.HO:PER:DAD/7039, dated 30-9- 2004 of respondents 1,2 and 4 respectively and to quash the same as arbitrary, illegal and violative of principles of natural justice; consequently to direct respondents to reinstate the petitioner into service with all consequential benefits. According to the petitioner, he was initially appointed as Manager in the respondent-Oriental Bank of Commerce with effect from 12-6-1980. While working at Nampally Branch, a new Branch was opened at Ameerpet on 22-5-1996 and he was posted as Senior Manager of the said Branch with effect from 13-1-1996. From Ameerpet Branch, he was transferred to Secunderabad Branch on 26- 6-2001. While so, the Assistant General Manager (Per.) issued a Memo dated 3-6-2002 calling upon the petitioner to submit his comments on certain alleged irregularities committed by him while he was incharge at Ameerpet Branch. It was alleged that he failed to follow the procedure prescribed by the Bank and unauthorizedly purchased the cheques of accommodation nature on regular basis drawn by certain firms belonging to M/s.AIRAN Group of Companies even though the Regional Office issued a letter dated 24-11- 2000. Petitioner submitted his explanation on 10-7-2002 denying the allegations made against him and also furnished additional information vide letter dated 19-7-2002. According to the petitioner, without considering his explanation, the Assistant General Manager (Per.) calling to be the disciplinary authority issued memorandum of charges dated 28-11-2002. In the said charge memo, 5 charges were levelled against him. An inquiry authority was appointed to conduct enquiry against the petitioner. The petitioner was furnished with certain documents. According to the petitioner, the Presenting Officer informed that he would examine M.W.1 on 21-5-2003. However, as the witness was on leave, he was not examined and in the meanwhile, he was asked by the inquiry authority to submit his defence statement contrary to the Regulations. Immediately, the petitioner informed that till the last date of proceeding, the Presenting Officer just finished furnishing of documents and the Management had to present its case and examine the witnesses on their behalf and as such, he was not in a position to make a defence statement. The defence documents were made available to him on 16th, 17th and 19th May,2003. Therefore, he requested the inquiry authority to complete the presentation of the management case and thereafter he would like to present his case. On that, the inquiry authority asked the Presenting Officer, whether he would like to comment on the observations of the petitioner. The Presenting Officer stated that M.W.1 would be examined in case of necessity only. Further, the enquiry authority accused the petitioner of delaying the matter and he was directed to present his defence, otherwise the enquiry would be held ex parte. In view of the threatening situation, the petitioner was forced to proceed with his defence. This action of the enquiry authority is contrary to Regulation 5(15) of the Oriental Bank of Commerce Officer Employees (Discipline and Appeal) Regulations,1982. According to these Regulations, the defence statement should be made when the case in support of the charge is closed. However, the petitioner submitted his defence statement for each charge separately. Petitioner received a notice for enquiry scheduled on 3-6-2003. Even on that date, he was directed to proceed with his case. Therefore, he submitted his defence exhibits numbering 43. After submitting the said documents, the enquiry authority asked the Presenting Officer whether he would like to say something or produce any witness. The Presenting Officer said that he wishes to examine M.W.1. Thereafter, M.W.1 was examined and his statement was recorded. On completion of the chief-examination on behalf of the Management, the inquiry authority directed the petitioner to cross-examine the witness. When the petitioner had requested the inquiry authority to give some time to enable him to prepare for the cross-examination, the Presenting Officer opposed for such grant of time stating that the witness came all the way from Hyderabad and he is an important person and, therefore, it is not possible and as such, the petitioner should start cross-examination on that day itself. Thus, the inquiry authority directed him to cross-examine the witness. Therefore, the petitioner could not cross-examine the witness properly. Immediately thereafter the enquiry was concluded. Petitioner submitted his written brief on 3-7-2003. Thereafter, the inquiry authority submitted its report on 5-8-2003 holding that the charges were proved, without taking into account the submissions made by the petitioner and the documents filed by him. On 5-8-2003 the Assistant General Manager (Per.) furnished a copy of the inquiry report and asked him to file his explanation. Petitioner submitted his explanation on 19-8-2003. Thereafter, the impugned Order dated 4- 12-2003 was issued removing him from service. The appeal and the review petition filed by the petitioner were also rejected. Challenging the same, the present Writ Petition is filed. A detailed counter affidavit has been filed on behalf of the respondents denying the allegations made by the petitioner. It was stated that the petitioner was given proper opportunity to defend himself and he was allowed to look into the records as are necessary. There was neither any procedural irregularity nor illegality committed by the Enquiry Officer in conducting the enquiry. On the basis of the evidence on record, the enquiry officer found that the charges were proved. Thereafter, the disciplinary authority also came to the same conclusion and the punishment of removal from service was imposed. Petitioner has committed a grave misconduct. Therefore, there was no option for the management except to remove the petitioner from service. Further, the punishment of removal from service cannot be said to be either arbitrary or illegal, muchless shockingly disproportionate to that of the misconduct proved. The appellate authority as well as reviewing authority rightly rejected the appeal and review petition. The Writ Petition is devoid of merits and is liable to be dismissed. Heard both sides. I have given my earnest consideration to the respective submissions made by the learned counsel on either side and perused the impugned Orders and other material made available on record. Before going further, it may be necessary to notice the charges, which read as under: Article of charge No.1: Shri M. Sunderashwaran, Asstt. Regional Manager, Regional Office, Bathinda while posted as Senior Manager/Incumbent Incharge at Branch Office, Ameerpet, Hyderabad during the period 13-1-1996 to 26-6-2001 unauthorizedly allowed withdrawals against cheques sent for collection in the account of M/s. Airan Comtrax Towers Pvt.Ltd and unauthorizedly purchased accommodation cheques contrary to the instructions of the Bank in the account of M/s.Airan Comtrax Towers Pvt Ltd and M/s Shakti Steels. By his above act Shri M.Sudershwaran, Asstt.Regional Manager, Regional Office, Bathinda did not discharge his duties withdevotion and diligence and acted in a manner, which is unbecoming of a Bank Officer. Thus, he violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations,1982 which read with Regulation 24 of the said Regulations constitute misconduct punishable under Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations,1982. Article of Charge No.2: Shri M. Sunderashwaran, Asstt. Regional Manager, Regional Office, Bathinda while posted as Senior Manager/Incumbent Incharge at Branch Office, Ameerpet, Hyderabad during the period 13-1-1996 to 26-6-2001 recommended enhancement in credit limits in the account of M/s.Comtrax Towers Pvt Ltd to Regional Office on regular and adhoc basis without ensuring satisfactory conduct of account contrary to the instructions/guidelines of the Bank. By his above act Shri M. Sundershwaran, Asst.Regional Manager, Regional Office, Bathinda did not discharge his duties with devotion and diligence and acted in a manner, which is unbecoming of a Bank Officer. Thus he violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations,1982 which read with Regulation 24 of the said Regulations constitute misconduct punishable under Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations,1982. Article of Charge No.3: Shri M. Sunderashwaran, Asstt. Regional Manager, Regional Office, Bathinda while posted as Senior Manager/Incumbent Incharge at Branch Office, Ameerpet, Hyderabad during the period 13-1-1996 to 26-6-2001 failed to independently ascertain correct value of property as collateral security in the account of M/s Comtrax Towers Pvt Ltd. By his above act Shri M. Sundershwaran, Asst.Regional Manager, Regional Office, Bathinda did not discharge his duties with devotion and diligence and acted in a manner, which is unbecoming of a Bank Officer. Thus he violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations,1982 which read with Regulation 24 of the said Regulations constitute misconduct punishable under Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations,1982. Article of Charge No.4: Shri M. Sunderashwaran, Asstt. Regional Manager, Regional Office, Bathinda while posted as Senior Manager/Incumbent Incharge at Branch Office, Ameerpet, Hyderabad during the period 13-1-1996 to 26-6-2001 opened letters of credit in the account of M/s. Aren Steels Ltd in favour of non-existent firms/firms floated by the employees/relatives of the borrowers contrary to the financial interests of the Bank. By his above act Shri M. Sundershwaran, Asst.Regional Manager, Regional Office, Bathinda did not discharge his duties with devotion and diligence and acted in a manner, which is unbecoming of a Bank Officer. Thus he violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations,1982 which read with Regulation 24 of the said Regulations constitute misconduct punishable under Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations,1982. Article of Charge No.5: Shri M. Sunderashwaran, Asstt. Regional Manager, Regional Office, Bathinda while posted as Senior Manager/Incumbent Incharge at Branch Office, Ameerpet, Hyderabad during the period 13-1-1996 to 26-6-2001 failed to report financial status of the account while submitting Schedule II in the account of M/s Aren steels Ltd. And concealed the undesirable facts/features while sending Schedule-II on the conduct of the account. By his above act Shri M. Sundershwaran, Asst.Regional Manager, Regional Office, Bathinda did not discharge his duties with devotion and diligence and acted in a manner, which is unbecoming of a Bank Officer. Thus he violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees (Conduct) Regulations,1982 which read with Regulation 24 of the said Regulations constitute misconduct punishable under Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulations,1982. At the outset, it may be necessary to notice that none of the said charges show that there was any mala fide intention on the part of the petitioner or misappropriation of funds or loss caused to the Bank in view of the alleged irregularities committed by him. Further, it may be noticed that the actions of the petitioner were all, admittedly, ratified by the Regional Office of the Oriental Bank of Commerce, Hyderabad. The sum and substance of the charges is that the petitioner had unauthorizedly allowed withdrawals against cheques sent for collection in the account of M/s.Airan Comtrax Towers Private Limited and unauthorizedly purchased accommodation cheques contrary to the instructions of the Bank; thus violated Regulation 3(I) of Oriental Bank of Commerce Officer Employees’ (Conduct) Regulations,1992 read with Regulation 24 of the said Regulations. It is also alleged that the petitioner had recommended enhancement in credit limits in the account of M/s.Comtrax Towers Private Limited to the Regional Office on regular and adhoc basis without ensuring satisfactory conduct of the account holder etc. Further, the petitioner did not discharge his duties with devotion and diligence and acted in a manner, which is unbecoming of an Officer. Except this, there is no allegation as to misappropriation/mala fide intention or acted in such manner for extraneous reasons etc. The charge in nutshell is that the petitioner had unauthorizedly permitted certain actions to be done by some company. Coming to the allegation made by the petitioner that he was forced to lead his defence first before completion of the evidence of the management witness, there was no denial. On the other hand, it was sought to be explained that since all the documents were furnished to the petitioner, no prejudice is caused to him in making his defence statement and leading his evidence before the management could start its evidence. This itself is enough to hold that the inquiry authority has followed a procedure, which is not recognized in the canons of the law. It is always not only desirable, but requires under the law that the management which framed the charge, is supposed to substantiate it and lead evidence first and then allow the defence to make its defence or lead evidence, if it is necessary. In this case, diametrically opposite method was followed. This is contrary to the settled principles of law. On this count alone, the domestic enquiry can be declared as invalid and the further proceedings followed by it. It is settled that the burden of proving every charge during enquiry proceedings rests on the employer. Unless the evidence in support of the charge is led during enquiry, the charge-sheeted employee has nothing to explain. If before the management evidence is led the charge sheeted employee is asked by the enquiry officer searching questions to explain his conduct, then the management will have an opportunity to modulate its evidence in the light of the explanation and answers given by the charge sheeted employee and thus his defence is likely to be prejudiced. Any such attempt on the part of enquiry officer is looked by industrial adjudication with strong disfavour and in such cases, the enquiry is considered as unfair. The procedure, which is adopted in this case, is illegal and deprecated. Thus, the whole enquiry is vitiated. In this regard, it may be necessary to notice the judgment in ASSOCIATED CEMENT COMPANIES LTD. v. WORKMEN[1] wherein it was held as under: “The other infirmity in the present proceedings flows from the fact that the enquiry has commenced with a close examination of Malak Ram himself. Some of the questions put to Malak Ram clearly sound as questions in cross-examination. It is necessary to emphasize that in domestic enquiries the employer should take steps to lead evidence against the workman charged, give an opportunity to the workman to cross-examine the said witness and then should the workman be asked whether he wants to give any explanation about the evidence led against him. It seems to us that it is not fair in domestic enquiries against industrial employees that at the very commencement of the enquiry, the employee should be closely cross-examined even before any other evidence is led against him. In dealing with domestic enquiries held in such industrial matters, we cannot overlook the fact that in a large majority of cases, employees are likely to be ignorant and so, it is necessary not to expose them to the risk of cross-examination in the manner adopted in the present enquiry proceedings.” Coming to the merits of the case, as noticed above, charge No.1 is that the cheque purchased i.e. facility extended, which was ratified by the Regional Office is stated as a misconduct. In charge No.2, recommendation made by the petitioner was found to be a misconduct. The third charge is that he has not obtained collateral security properly. There was a difference between the value made by the official valuer and the revenue officials. The fourth charge is that non-existent firm was involved in the loan process etc. All these charges were held to be proved only on the ground that the petitioner has no authorization. But, the enquiry authority as well as the disciplinary authority failed to see that all the actions, which are said to be irregularities committed by the petitioner, under the said five charges, were ratified by the Regional Office of the Oriental Bank of Commerce. This is not in dispute. It is further brought to the notice of the Court that the Senior Manager has such a power and the petitioner had taken the Court to various powers with which he was vested while he was working as a Senior Manager at Ameerpet, which reads as under: “11. In emergent circumstances, the following functionaries may exceed the sanctioned working capital limits to the extent mentioned below without making reference to the sanctioning authority. Such discretion shall only be exercised in a borrowal account classified as STANDARD subject to satisfactory conduct of the account. Proper record on the prescribed format shall be kept by the concerned authority. (i) Branch Incumbent: Upto 10% of fund based working capital/non-fund based limit respectively subject to a maximum of Rs.10.00 lac for 90 days during validity period of limit. (ii) to (v)………………… This discretion is available in only those cases where the limits are approved by higher sanctioning authority. The over-accommodation as above shall be allowed against available DP in cash credit account or by way of purchase of cheque/discounting of bills arising out of genuine business transactions. For the purpose of allowing over accommodation, the fund based and non-fund based limits shall be grouped separately for the purpose of temporary over-accommodation. I have carefully gone through the impugned Orders and other material placed before the Court and I am of the opinion that the very enquiry conducted against the petitioner is not valid. Apart from that the documents filed would reveal that the actions of the petitioner (irregularities pointed out by the disciplinary authority) were admittedly approved by the Regional Office. In the absence of any allegations of mala fide intention or any loss caused to the Bank or such acts were committed for extraneous considerations, it cannot be said that the charges were proved. Even assuming that the petitioner had no power, since the actions of the petitioner were ratified and they have not resulted in any loss to the Bank whatsoever, the petitioner cannot be held to be guilty of the charges. Further, assuming that there is some misconduct on the part of the petitioner, the petitioner had put in more than 22 years of service as on the date of issuance of the Memo and he rose to the rank of Assistant Regional Manager and when irregularities were attributed to him, he was already a Senior Manager of the Bank with sufficient experience and he appears to have acted in good faith and having personally satisfied with the customers and the companies that came before him for extending such benefits of overdrawal of cheques and for purchasing of cheques he had done the same. This was approved by the Regional Office. Thus, the personal satisfaction and the dealings of the petitioner with such clientele were approved by the respondents. Except making allegations, why such charge sheet was issued by the respondents and what made them to enquire into is nowhere mentioned either in the impugned order of removal or in the appellate order of in the order of the reviewing authority. As such, the punishment of removal from service is shockingly disproportionate to that of the misconduct alleged against the petitioner. In the facts and circumstances of the case, particularly the fact that the petitioner is aged about 58 years as of now, instead of remanding the matter to the disciplinary authority for conducting a fresh enquiry or to consider for imposition of any lesser punishment than that of removal from service, in view of the fact that the order of removal, even if charges were proved, is shockingly disproportionate to that of the misconduct, it is desirable to give a quietus to the litigation at this stage itself. Under these circumstances, the impugned order of removal passed by the 1st respondent as confirmed by respondents 2 and 4 is modified to that of compulsory retirement from service and the petitioner shall be extended with all pensionary and other benefits as are eligible, treating him as compulsorily retired from service with effect from 4-12-2003. Respondents are directed to pass orders accordingly within a period of six weeks from the date of receipt of a copy of this order and settle all the benefits of the petitioner. Accordingly, the Writ Petition is disposed of. No order as to costs. 11-4-2008 prk [1] 1963(2) LLJ 396