IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 27-01-2010 CORAM THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.6901 of 2006 K.Krushanaswamy .. Petitioner. Versus The Executive Director-cum- Appellate Authority, Canara Bank, Head Office, 112 JC Road, Bangalore-2. 2.The General Manager-cum- Disciplinary Authority, Canara Bank, Industrial Relation Section, Personal Wing, Head Office, 112, J.C.Road, Bangalore-2. 3.The Deputy General Manager (AG), Canara Bank, Disciplinary Action Cell, Circle Officer, Chennai. .. Respondents. Prayer: Petition filed under Article 226 of the Constitution of India, praying for a Writ of Certiorarified Mandamus, to call for the records relating to the order passed by the 2nd respondent in Ref.No.IRS CNC No.1458/2004, dated 18.6.2004, as confirmed by the order of the 1st respondent by order, dated 23.1.2006, communicated by the third respondent by proceedings Ref.No.CNC DAC 85 E-37, dated 1.2.2006, and to quash the same and direct the respondents to reinstate the petitioner in service as Manager with full backwages continuity of service and all consequential benefits. For Petitioner : Mr.R.Gandhi, Senior Counsel for Mr.R.G.Narendhiran For Respondents : Mr.P.R.Raman O R D E R This writ petition has been filed praying for a Writ of Certiorarified Mandamus to call for and quash the order passed by the second respondent, on 18.6.2004, and the order of the first respondent, dated 23.1.2006, communicated by the third respondent, by https://hcservices.ecourts.gov.in/hcservices/ his proceedings, dated 1.2.2006, and to, consequently, direct the respondents to reinstate the petitioner in service, as the manager of Canara Bank, Pallavaram, Chennai, with continuity of service, backwages and all other consequential benefits. 2. The petitioner has stated that he had been appointed in Canara Bank, as a Probationary Officer, on 29.11.1982, and he had been posted in Aruvankadu branch, Nilgiris District. He had been promoted as a Manager, in the year 1995 and he has been working in Seoni, Madhya Pradesh, from 31.5.1995 to 5.6.1998. Thereafter, the petitioner had been transferred to the Washermenpet branch, on 2.7.1998, and he had been working in the said branch, till 18.9.2001. The petitioner had been awarded excellent rating for his performance as the Manager in the Washermenpet branch, for the year 2000-2001. While so, he had been transferred to the Velachery branch and he had taken charge, on 21.9.2001. Thereafter, he had been transferred to the Pallavaram branch, as a second line manager. While so, the second respondent, by his proceedings, dated 18.12.2001, had suspended the petitioner from service, on the ground that disciplinary proceedings were being contemplated against him, for certain acts of misconduct when he had been functioning as the manager at the Washermenpet branch, from 12.6.1998 to 18.9.2001. 3. It has also been stated that the second respondent, by his proceedings, dated 23.12.2002, had framed certain charges against the petitioner, under Regulation 6 of the Canara Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. The allegations in the charge sheet were that the petitioner had resorted to reckless lending and that he had exposed the bank to huge financial risk and that the investigation made by the authorities concerned had revealed serious irregularities in identification of the borrowers, sanctioning of loans etc. The petitioner had submitted his detailed explanation to the third respondent, in his representation, on 2.3.2002. 4. It has also been stated that the allegations made in the charge sheet, dated 23.12.2002, were a verbatim repetition of the earlier proceedings of the Assistant General Manager, dated 14.2.2002 and 14.5.2002. The second respondent had issued the charge sheet, dated 23.12.2002, without reference to the earlier proceedings and without application of mind. Therefore, the petitioner, by his letter, dated 7.2.2003, addressed to the second respondent, had denied all the allegations contained in the charge sheet, dated 23.12.2002, and he had requested that his representations, submitted earlier, should also be considered. https://hcservices.ecourts.gov.in/hcservices/ 5. In spite of the requests made by the petitioner an enquiry officer had been appointed, vide proceedings of the second respondent, dated 8.2.2003, to conduct an enquiry, in respect of the charges levelled against the petitioner. The petitioner had challenged the said proceedings of the second respondent, by way of a writ petition, in W.P.No.8128 of 2003. By an order, dated 17.3.2003, this Court had directed the respondents in the said writ petition to consider the reply submitted by the petitioner and thereafter, to proceed further with the enquiry. However, the respondents had proceeded with the enquiry, mechanically, without applying their mind. Even though several persons had given written statements to the Investigating Officer, the respondent management had produced only one person during the enquiry. Therefore, the petitioner had no opportunity to cross examine the other persons, who had given their written statements. Even otherwise, the respondent management cannot rely upon the statements, which were recorded by the investigating officer. Further, there were several procedural infirmities in the enquiry proceedings. However, the disciplinary authority, without considering the submissions made by the petitioner, had imposed the punishment of compulsory retirement from service, on the petitioner, by a non-speaking order, dated 18.6.2004. 6. Aggrieved by the said order, the petitioner had submitted an Appeal Memorandum, dated 5.7.2004, to the first respondent. Inspite of the petitioner raising several grounds, the first respondent Appellate Authority had confirmed the order of the second respondent, dated 18.6.2004, by his proceedings, dated 1.2.2006, by rejecting the appeal filed by the petitioner. In such circumstances, the petitioner has preferred the present writ petition before this Court, under Article 226 of the Constitution of India. 7. In the counter affidavit filed on behalf of the respondents it has been stated that the writ petition filed by the petitioner is devoid of merits. The respondent Bank had taken appropriate disciplinary action against the petitioner, strictly in accordance with the rules and the regulations that are applicable to him. While the petitioner was working as the manager at the Washermenpet branch of the respondent Bank, during the period, from 12.6.1998 to 18.9.2001, certain serious acts of misconduct had been committed by the petitioner. Therefore, he had been placed under suspension, with effect from 22.12.2001, as disciplinary proceedings had been contemplated against him. Thereafter, a charge sheet, dated 23.12.2002, had been issued, containing serious charges, including misdeeds in identification of the borrowers, and in the appraisal, sanction and disbursement of loans and in the monitoring of the credit limits extended to several parties. By resorting to reckless lending the petitioner had exposed the Bank to huge financial risk of over Rs.125 lakhs. https://hcservices.ecourts.gov.in/hcservices/ 8. It has also been stated that the petitioner had not submitted his explanation, within the stipulated time. Therefore, the respondents had proceeded to appoint an enquiry officer, to enquire into the charges levelled against him. Thereafter, the explanation of the petitioner had been received by the respondents, on 10.2.2003. Since, the explanation submitted by the petitioner was not satisfactory it was decided to initiate departmental proceedings against him. The departmental proceedings were conducted in accordance with law and as directed by this Court, by its order, dated 17.3.2003, made in W.P.No.8128 of 2003. Since, the petitioner was found guilty of the charges levelled against him, the punishment of compulsory retirement from service had been imposed on him, by an order of the second respondent, dated 18.6.2004. The appeal filed by the petitioner before the first respondent had also been rejected. Therefore, the writ petition is liable to be dismissed, as it is devoid of merits. 9. Mr.R.Gandhi, the learned Senior Counsel, appearing on behalf of the petitioner had submitted that the main charges against the petitioner is that he had exposed the bank to huge financial risk by his reckless lending and that the investigation had revealed that there were certain irregularities in identification of the borrowers and in the sanctioning of the loans. Since, there is no allegation of misappropriation against the petitioner, the charges levelled against him cannot be considered to be serious in nature inviting the penalty of compulsory retirement from service. Further, most of the dues payable by the borrowers had been recovered. No reasons had been given by the second respondent, in his order, dated 18.6.2004, imposing the punishment of compulsory retirement on the petitioner. The first respondent Appellate Authority had also confirmed the order passed by the second respondent, without proper application of mind and without giving proper reasons. As such, the impugned orders are contrary to the Canara Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. Therefore, the impugned orders are erroneous in nature and non est in the eye of law. The learned Senior counsel had also submitted that sufficient opportunity had not been given to the petitioner, to defend himself during the enquiry and that the petitioner had been acquitted in the criminal cases registered against him. 10. The learned Senior counsel had relied on the following decisions in support of his contentions: 10.1. In Canara Bank V. Debasis Das ( 1999(7) SLR 311), it had been held that an unfair trial cannot be cured by a fair appeal. 10.2. In State of Gujarat V. Umedbhai (AIR 2001 SC 1109), it has been held as follows: https://hcservices.ecourts.gov.in/hcservices/ “The law relating to compulsory retirement has now crystallized into definite principles, which could be broadly summarised thus: (i) Whenever the services of a public servant are no longer useful to the general administration, the officer can be compulsorily retired for the sake of public interest. (ii) Ordinarily, the order of compulsory retirement is not to be treated as a punishment coming under Article 311 of the Constitution. (iii) For better administration, it is necessary to chop off dead wood, but the order of compulsory retirement can be passed after having due regard to the entire service record of the officer. (iv) Any adverse entries made in the confidential record shall be taken note of and be given due weightage in passing such order. (v) Even uncommunicated entries in the confidential record can also be taken into consideration. (vi) The order of compulsory retirement shall not be passed as a short cut to avoid departmental enquiry when such course is more desirable. (vii) If the officer was given a promotion despite adverse entries made in the confidential record, that is a fact in favour of the officer. (viii) compulsory retirement shall not be imposed as a punitive measure.” 10.3. In M.C.Charati Vs. Personnel Manager (2001(7) SLR 660), it has been held that when the element of intention to defraud the bank had not been proved, the punishment of compulsory retirement, imposed on the charged officer, would be disproportionate in nature. 11. Per contra, Mr.P.R.Raman, the learned counsel appearing on behalf of the respondent had submitted that this Court may interfere with the impugned orders passed by the respondents, only in four instances, namely, when it is clear that the punishment of compulsory retirement from service has been imposed on the petitioner, based on the enquiry proceedings, which had been conducted without following the principles of natural justice; where the proceedings had been conducted contrary to a settlement or an agreement concluded under the relevant provisions of law; where there is no evidence, whatsoever, for the disciplinary authority to arrive at his conclusions and when the punishment is shockingly disproportionate to the proved charges. The present case does not fall under any one of the above mentioned categories. https://hcservices.ecourts.gov.in/hcservices/ 12. The learned counsel had also submitted that when the matter relates to an officer of a Bank, it has to be viewed at, seriously. The petitioner had sanctioned and disbursed loans, without proper verification and without the loans being supported by adequate security. He should have also verified as to whether the persons seeking the loans are doing genuine business. Further, no post sanction verification had been done to see if the machineries, said to have been purchased by the borrowers, were based on genuine invoices. Therefore, due to the various irregularities committed by the petitioner, the respondent Bank had been exposed to serious financial risk. 13. The learned counsel had also submitted that there is nothing wrong in obtaining written statements from the persons who had knowledge of the transactions. Even if no eye-witness had been examined to prove the case of the respondent Bank it could not be held to be a serious irregularity in proving the charges levelled against the petitioner. Based on the principle of res ipsa loquitur it could be clearly seen, from the records available, that the petitioner had committed serious irregularities in the sanctioning and in the disbursement of the loans. Unlike in a criminal case, where the guilt of the accused is to be proved beyond reasonable doubt, in the departmental disciplinary proceedings conducted, it would be sufficient if the irregularities alleged against the delinquent are supported by preponderance of probabilities. Further, since the second respondent was not differing with the findings of the enquiry officer there was no need for recording detailed reasons for his conclusions. The first respondent Appellate Authority had also concurred with the order passed by the second respondent. In such circumstances, it cannot be held that the impugned orders are arbitrary, illegal or void. 14. The learned counsel appearing for the respondents had relied on the following decisions in support of his contentions: 14.1. In State Bank of Bikaner & Jaipur V. Prabhu Dayal Grover (1995 (6) SCC 279), it had been held as follows: “Under Regulation 68(3), only in those cases where the disciplinary authority considers it necessary to direct fresh or further enquiry or disagrees with the findings of the Inquiry Officer, it has to record the reasons for its such directions, but there is no such obligation if it agrees with the findings of the Inquiry Officer. It can, therefore, be legitimately inferred that when express provisions have been made in the Regulations for recording reasons in only the first two of the three fact situations --- and not the other --- there is no implied obligation https://hcservices.ecourts.gov.in/hcservices/ also to record the reasons in case of concurrence with the findings of the Inquiry Officer. Even assuming that such an obligation is implicit, still the order of the disciplinary authority cannot be held to be bad as before concurring with the findings of the inquiry Officer it has gone through the entire proceedings and applied its mind thereto.” 14.2. In Union of India V. Bihari Lal Sidhana (1997(4) SCC 385), it had been held as follows: "Mere acquittal does not automatically give right to be reinstated in service. It is open to the appropriate competent authority to take a decision whether the delinquent government servant can be taken into service or disciplinary action should be taken under the relevant disciplinary or temporary service rules." 14.3. In Regional Manager U.P.SRTC V. Hoti Lal (2003(3) SCC 605), it had been held as follows: "The Court of Tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment was not commensurate with the proved charges. The scope for interference is very limited and restricted to exceptional cases....... If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable." 14.4. In National Fertilizers Ltd. V. P.K.Khanna (2005(7) SCC 597), the Supreme Court has held that the disciplinary authority is required to give reasons only when it disagrees with the findings of the enquiry officer and not when it concurs with his findings. 14.5. In Damoh Panna Sagar Rural Regional Bank V. Munna Lal Jain (2005(10) SCC 84), it had been held as follows: "A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. It is no defence to say that no loss or profit resulted in the case when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is https://hcservices.ecourts.gov.in/hcservices/ dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court." 15. In view of the submissions made by the learned counsels appearing on behalf of the petitioner, as well as the respondents and on a perusal of the records available and in view of the decisions cited supra, this Court is of the considered view that the petitioner has not shown sufficient cause or reason to interfere with the impugned orders passed by the respondents. The petitioner had been given sufficient opportunity, during the enquiry conducted, with regard to the allegations levelled against him. The impugned orders have been passed based on the evidence that was available during the enquiry and on consideration of the explanation submitted by the petitioner. It cannot be said that the impugned orders have been passed by the respondents, based on no evidence. Nor can it be said that the punishment of compulsory retirement from service, imposed on the petitioner, is disproportionate in nature. The petitioner, who was holding the post of manager in the concerned branch of the respondent bank was found to have committed dereliction of his duties by exposing the bank to high financial risk, by being negligent in sanctioning and disbursement of loans. 16. In fact a person holding such a post should have been more responsible and diligent in following the rules and regulations applicable to such transactions. Moreover, it is settled law, as stated by the Supreme Court, that a high standard of honesty, integrity, devotion and diligence is expected from an officer of a bank, as in the present case. Therefore, it cannot be said that the punishment imposed on the petitioner, by the impugned proceedings of the respondents, is shockingly disproportionate to the irregularities committed by the delinquent officer. As the petitioner was holding a post of trust, he is expected to act in a fiduciary capacity, with higher responsibilities. Since, the petitioner had acted in a manner contrary to the interest of the respondent Bank, it would not be open to him to state that there was no wrongful intention of causing serious financial loss to the respondent Bank. For the reasons stated above, the writ petition is liable to be dismissed. Hence, it is dismissed. No costs. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ csh To 1. The Executive Director-cum- Appellate Authority, Canara Bank, Head Office, 112 JC Road, Bangalore-2. 2.The General Manager-cum- Disciplinary Authority, Canara Bank, Industrial Relation Section, Personal Wing, Head Office, 112, J.C.Road, Bangalore-2. 3.The Deputy General Manager (AG), Canara Bank, Disciplinary Action Cell, Circle Officer, Chennai. 1 cc To Mr.P.R.Raman, Advocate, SR.4489. 1 cc To Mr.R.G.Narendhiran, Advocate, SR.4397. W.P.No.6901 of 2006 TEJ(CO) RVL 03.02.2010 https://hcservices.ecourts.gov.in/hcservices/