B.Muthiah v. The Chairman and Managing Director,(Reviewing Authority)Indian Bank

dated 04.07.1996 in detail denying the allegations, pointing out thefact that excess limit was allowed on the instruction/knowledge ofCMD and Zonal Manager and it was not permitted by the petitioner. Asfar as the mortgage is concerned, the same was available as securitywhen the limit was in the Harbour Branch and continued in theThousand Lights Branch. Not being satisfied with the said reply ofthe petitioner, the Disciplinary Authority issued a charge sheet on18.05.1998.2d.For each and every charge framed against him, thepetitioner submitted a suitable explanation dated 06.07.1998specifically pointing out that he has always kept the Zonal Officeand Head Office informed about the account and the alleged excesswere not really excess and they were all allowed with priorpermission of the Zonal Manager or against security by way of FixedDeposit. However, not satisfied with his explanation, theDisciplinary Authority ordered Departmental Enquiry appointingMr.Suman Nayar as Inquiring Authority and Mr.Suman Nayar conductedthe hearing on 14.10.1998, 27.11.1998 and 11.01.1999 and concludedthe enquiry and submitted his report on 30.04.1999. Thereafter, thepetitioner submitted a detailed reply to the Disciplinary Authorityabout the infirmity in the enquiry report. Without considering anyof the contentions put forth by the petitioner about the infirmity inthe enquiry report, the Disciplinary Authority accepted the EnquiryReport and found the petitioner guilty of all the charges exceptcharge No.5 and by an order dated 17.04.2000, imposed the punishmentof dismissal from service with immediate effect in terms ofRegulation (J) of the Indian Bank Employees (Discipline and Appeal)Regulation, 1976.2e.Aggrieved by the said order of dismissal from service, thepetitioner preferred an appeal to the Appellate Authority on19.06.2000 and after a lapse of 6 ½ years, the Appellate Authority, by an order dated 18.12.2006 dismissed his appeal with an observationthat the petitioner has to be imposed punishment of compulsoryretirement. When the petitioner sent a letter of clarification on11.12.2006 as to whether the punishment was modified from dismissalto compulsory retirement in terms of recommendation, by a letterdated 20.12.2006, it was clarified by the Department that by mistake,'compulsory retirement' has been mentioned for the word 'dismissal'. 2f.Challenging the order passed by the Appellate Authority, the petitioner preferred a Review Petition to the Chairman andManaging Director of the Bank , the 1st respondent herein on06.05.2007 and the 1st respondent, who is the Reviewing Authority, byan order dated 19.05.2007 dismissed the Review Petition without anyconsideration. In the meantime, the borrower had paid the entireamount of Rs.157 crore under OTS Scheme loan and all the loanaccounts were closed. As the gravamen of charges was that thepetitioner has exposed the Bank to risk of recovery of Rs.2713.54 https://hcservices.ecourts.gov.in/hcservices/ lakhs and committed the misconduct under regulation of 3(1) of IndianBank Officers Employees' Regulation, 1975, the petitioner made arepresentation dated 11.05.2008 about the recovery of the amount andsetting aside of the punishment of dismissal from service. But, theBank refused to consider the case of the petitioner. Hence, thepetitioner is before this court by way of the present writ petition.3. Respondents 1 to 3 have filed counter affidavit, wherein, they have vehemently denied that the enquiry was not conducted as perthe Indian Bank Office Discipline and Appeal Regulations. TheInquiring Authority appointed by the Central Vigilance Commission wasexperienced in the conduct of the departmental enquiry and was wellaware of the provisions under which the enquiry was to be conducted. The copies of 22 documents were served on the petitioner before theconduct of enquiry. During the enquiry, the said documents weretaken on record by the Inquiring Authority and marked as Exhibits M1to M22. The petitioner was given due opportunity by the InquiringAuthority and by following the principles of natural justice, hepermitted the petitioner to verify the documents with thepetitioner's defence assistant at the Branch. Since the saiddocuments are certified copies of the Bank/Branch, no personalidentification is needed in the domestic enquiry. Despite the same, the Inquiring Authority in his proceedings dated 14.10.1998 hasstated that if there is any doubt by the petitioner about theauthenticity of the documents submitted by the Presenting Officer(PO) and if any such doubt is found, it has to be sent within 3 daysof the inspection failing which it shall be assumed that thedocuments are accepted as genuine. The petitioner has not sent anysuch intimation to the Inquiring Authority and he cannot question theveracity of the documents at this stage as it is just an afterthought. Therefore, the contentions of the petitioner that theInquiring Authority did not conduct the Inquiry as per theRegulations are not true. 3a. In fact, the petitioner has not made any objection to the 3rdrespondent that the Inquiring Authority did not conduct the enquiryproperly and that the petitioner was given opportunity to adduceevidence in his favour. Thus, according to the respondents, theprocedure of conducting departmental enquiry as envisaged in theregulations were strictly followed by the Inquiring Authority. Inthe absence of any objection by the petitioner at the time ofadmission of the documentary evidence or any time later during theenquiry, there was no need for the Inquiring Authority to get themproved in the enquiry by production of witnesses and the objectionmade by the petitioner is just an afterthought. 3b. According to the respondents, it is not mandatory in termsof Indian Bank Office Employe's (Discipline and Appeal) Regulationsthat a charge sheet should be preceded with the issue of show causenotice. Where a show cause notice had been issued, it is not https://hcservices.ecourts.gov.in/hcservices/ mandatory that the charge sheet should be the same as per the showcause notice. Opportunity was given to the petitioner to reply tothe charges framed against him and only then, further proceedingswere initiated. There is not an iota of truth on the contention ofthe petitioner that punitive action was taken against him based onsuspicion. The charges were proved either beyond reasonable doubt orby preponderance of probability and there is no question ofreasonableness in the entire process, as the enquiry was conducted ina proper manner by following the principles of natural justice. Hence, the respondents pray for dismissal of the writ petition. 4. To the counter affidavit filed by the respondents, thepetitioner has filed a rejoinder, stating that the counter is silentwith regard to his contention that no witness was examined by theManagement and the documents were merely marked. According to thepetitioner, the marking of the documents will not amount to provingthe contents of the documents and the contents of the documents canbe proved only by the maker of the documents or by a person who isconversant with the contents of the documents. In the absence ofwhich, the documents cannot be considered as proved. Therefore, relying on such documents without giving an opportunity to thepetitioner to cross-examine the maker is in violation of theprinciples of natural justice. The petitioner has further statedthat the Inquiring Authority has merely relied on the submission ofthe Presenting Officer and has not relied on the documents filed bythe Bank proving the charge.4a.The petitioner has also pointed out that the show causenotice dated 25.04.1996 was signed by the General Manager/ChiefVigilance Officer, Mr.S.C.Vohra. Regulation 19 of Indian BankOfficers Employees (Discipline and Appeal) Regulations, 1976 providesfor consultation with the Central Vigilance Commission by the Bank. The Chief Vigilance Officer is the Officer of the Central VigilanceCommission stationed in the Bank. The Vigilance Officer of the Bank, as a representative of the Commission and the Bank took up the casefor getting first stage advice and second stage advise at the time ofawarding the punishment. Hence, it is settled law that the ChiefVigilance Officer's role has to be confined to the above role and heshould not cause any issuance of show cause or charge sheet as heshould not frame an opinion about the case. 4b.With regard to the averment of the respondents thatM/s.Gemini Pictures Circuits Pvt. Ltd. and other group accounts werethe cause of action for initiating vigilance action against manyOfficers of the Bank, the petitioner would state that out of the one-time settlement of compromise only, the entire liability of GeminiPictures Circuits Pvt. Ltd. Gemini Arts and other group accounts wereadjusted on 28.03.2007 and the Bank has filed a full satisfactionmemo to DRT Chennai on 28.03.2007. Such being the factual position, there was discrimination in awarding punishment. https://hcservices.ecourts.gov.in/hcservices/

#5. Mr.S.Sethuraman, learned counsel for the petitioner wouldstrenuously contend that the impugned orders are legally infirmed onthe following grounds (i) the enquiry conducted is in violation ofthe principles of natural justice (ii) there is denial of cross-examination (iii) the Disciplinary Authority has substituted thefinding without affording an opportunity to the petitioner (iv)charges which were not dealt with by the Inquiring Authority weredealt with independently by the Disciplinary Authority (v) there isno monetary loss caused to the Bank and (vi) punishment awarded isdisproportionate. In support of his contentions, the learned counselhas relied on the following Supreme Court decisions :(i)AIR 1994 SCC 1341 (Triveni Rubber and Plastics vs. Collector of Central Excise, Cochin) :"3.... The quantum of tread-rubber produced in theappellant's factory during the said two years is a questionof fact. Unless it is found that some relevant evidence hasnot been considered or that certain inadmissible materialhas been taken into consideration the concurrent findings offact cannot be disturbed by us in this appeal under Art. 136of the Constitution. This is not also a case where it canbe said that the findings of the authorities are based on noevidence or that they are so perverse that no reasonableperson would have arrived at those findings."(ii)JT 1996 (4) 457 (The Disciplinary Authority-Cum- RegionalManager and others vs. Nikunja Bihari Patnaik) :"... Each officer of the Bank cannot be allowed tocarve out his own little empire wherein he dispensesfavours and largesse. No organisation, more particularly, aBank can function properly and effectively if its officersand employees do not observe the prescribed norms anddiscipline. Such indiscipline cannot be condoned on thespecious ground that it was not actuated by ulteriormotives or by extraneous considerations. The very act ofacting beyond authority – that too a course of conductspread over a sufficiently long period and involvinginnumerable instances – is by itself a misconduct. Suchacts, if permitted, may bring in profit in some cases butthey may also lead to huge losses. Such adventures are notgiven to the employees of Banks which deal with publicfunds. ... The Enquiry Officer has recorded a clearfinding that the respondent did flout the said instructionsand has thereby committed an act of disobedience of lawfulorders. Similarly, Charge No.8, which has also beenestablished in full is to the effect that inspite ofreminders, the respondent did not submit "Control Returns"to the Regional Office. We fail to understand how could https://hcservices.ecourts.gov.in/hcservices/ all this be characterised as errors of judgment and not asmisconduct as defined by the regulations. ..."(iii)(1998) 7 SCC 84 (Punjab National Bank and others vs. Kunj Behari Misra) : "17.... If the enquiry officer had given an adversefinding, as per Karunakar case, the first stage required anopportunity to be given to the employee to represent to thedisciplinary authority, even when an earlier opportunity hadbeen granted to them by the enquiry officer. It will notstand to reason that when the finding in favour of thedelinquent officers is proposed to be overturned by thedisciplinary authority then no opportunity should begranted. The first stage of the enquiry is not completedtill the disciplinary authority has recorded its findings. The principles of natural justice would demand that theauthority which proposes to decide against the delinquentofficer must give him a hearing. When the enquiring officerholds the charges to be proved, then the report has to begiven to the delinquent officer who can make arepresentation before the disciplinary authority takesfurther action which may be prejudicial to the delinquentofficer. When, like in the present case, the enquiry reportis in favour of the delinquent officer but the disciplinaryauthority proposes to differ with such conclusions, thenthat authority which is deciding against the delinquentofficer must give him an opportunity of being heard forotherwise he would be condemned unheard. In departmentalproceedings, what is of ultimate importance is the findingof the disciplinary authority.18.Under Regulation 6, the enquiry proceedings can beconducted either by an enquiry officer or by thedisciplinary authority itself. When the enquiry isconducted by the enquiry officer, his report is not final orconclusive and the disciplinary proceedings stand concludedwith the decision of the disciplinary authority. It is thedisciplinary authority which can impose the penalty and notthe enquiry officer. Where the disciplinary authorityitself holds an enquiry, an opportunity of hearing has to begranted by him. When the disciplinary authority differswith the view of the enquiry officer and proposes to come toa different conclusion, there is no reason as to why anopportunity of hearing should not be granted. It will bemost unfair and iniquitous that where the charged officerssucceed before the enquiry officer, they are deprived ofrepresenting to the disciplinary authority before thatauthority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on https://hcservices.ecourts.gov.in/hcservices/ the officer. In our opinion, in any such situation, thecharged officer must have an opportunity to represent beforethe disciplinary authority before final findings on thecharges are recorded and punishment imposed. ..."(iv)AIR 1999 SC 3734 (Yoginath D.Bagde vs. State of Maharashtraand another) :"33.In view of the above, a delinquent employee hasthe right of hearing not only during the enquiryproceedings conducted by the Enquiry Officer into thecharges levelled against him but also at the stage at whichthose findings are considered by the Disciplinary Authorityand the latter, namely, the Disciplinary Authority forms atentative opinion that it does not agree with the findingsrecorded by the Enquiry Officer. If the findings recordedby the Enquiry Officer are in favour of the delinquent andit has been held that the charges are not proved, it is allthe more necessary to give an opportunity of hearing to thedelinquent employee before reversing those findings. Theformation of opinion should be tentative and not final. Itis at this stage that the delinquent employee should begiven opportunity of hearing after he is informed of thereasons on the basis of which the Disciplinary Authorityhas proposed to disagree with the findings of the EnquiryOfficer. This is in consonance with the requirement ofArticle 311(2) of the Constitution as it provides that aperson shall not be dismissed or removed or reduced in rankexcept after an enquiry in which he has been informed ofthe charges against him and given a reasonable opportunityof being heard in respect of those charges. So long as afinal decision is not taken in the matter, the enquiryshall be deemed to be pending. Mere submission of findingsto the Disciplinary Authority does not bring about theclosure of the enquiry proceedings. The enquiryproceedings would come to an end only when the findingshave been considered by the Disciplinary Authority and thecharges are either held to be not proved or found to beproved and in that event punishment is inflicted upon thedelinquent. That being so, the "right to be heard" wouldbe available to the delinquent up to the final stage. Thisright being a constitutional right of the employee cannotbe taken away in any legislative enactment or Service Ruleincluding Rules made under Article 309 of the Constitution."36.Along with the show-cause notice, a copy of thefindings recorded by the enquiry officer as also thereasons recorded by the Disciplinary Committee fordisagreeing with those findings were communicated to theappellant but it was immaterial as he was required to show https://hcservices.ecourts.gov.in/hcservices/ cause only against the punishment proposed by theDisciplinary Committee which had already taken a finaldecision that the charges against the appellant wereproved. It was not indicated to him that the DisciplinaryCommittee had come only to a “tentative” decision and thathe could show cause against that too. It was for thisreason that the reply submitted by the appellant failed tofind favour with the Disciplinary Committee."(v) AIR 2001 SC 2398 (S.B.I. and others vs. Arvind K.Shukla) :"2. Mr Sundravardan, the learned Senior Counselappearing for State Bank of India contended before us thatin the case in hand, in fact, there has been no disagreementwith the findings of the enquiring officer by thedisciplinary authority, and on the other hand, thedisciplinary authority on the accepted findings of theenquiring officer has recorded his conclusion differently onthe basis of the relevant provisions of the Rules, andtherefore the question of giving an opportunity to thedelinquent at that stage does not arise. To appreciate thiscontention, we have been taken through the findings of theenquiring officer and Charges 1(a) and 1(d) as well as thereasonings and ultimate conclusion of the disciplinaryauthority on those two charges. On examining the same, weare not persuaded to accept the submission of the learnedcounsel and in our view, the disciplinary authority hasdisagreed with the conclusion and findings arrived at by theenquiring officer. The next question therefore is, as hasbeen formulated earlier, whether the disciplinary authoritywas required to record its tentative reasons fordisagreement and give to the delinquent officer anopportunity to represent before it recorded its ultimatefindings. This question is concluded by a three-Judge Benchdecision of this Court in the case of Punjab National Bankv. Kunj Behari Misra1."(vi)(2004) 8 SCC 653 (J.A.Naiksatam vs. Prothonotary & SeniorMaster, High Court of Bombay and others) :"As per Rule 8 of the Bombay Rules, if the disciplinaryauthority is not agreeing with the reasons given by theenquiry officer it would be open to the disciplinaryauthority to hold further enquiry in accordance with theprovisions of Rule 7 and Rule 8(2) shows that if thedisciplinary authority disagrees with the findings of theenquiry officer on any of the articles of charge he shallrecord his reasons for such disagreement. Sub-rule (4)(i)(a)of Rule 8 of the Bombay Rules further shows that the copy ofthe report of the enquiry officer and his finding on each https://hcservices.ecourts.gov.in/hcservices/ article of charge together with brief reasons shall be givento the delinquent employee. The rule further says that thedisciplinary authority shall give its reasons fordisagreeing with the decision of the enquiry officer. Thecounsel for the appellants contended that even if the ruledoes not specifically say that the delinquent employeeshould be given personal hearing when it disagrees with theenquiry officer, the same shall be read into the provisionand the delinquent employee shall be given an opportunity ofpersonal hearing before a final decision is taken in thematter. ..."(vii)(2007) 1 SCC 437 (Mathura Prasad vs. Union of Indiaand others) :"18. Even if the enquiry officer had, in his firstreport, proceeded on surmises and conjectures as wasobserved by the High Court, the disciplinary authority coulddisagree with the said finding but it was, therefor, required to record its reasons. No reason was recorded. Sub-rules (2) and (3) of Rule 10 aim at achieving the samepurpose. If sufficient materials are not available onrecord, a direction for holding a further enquiry may beissued in terms of sub-rule (2) of Rule 10 so as to enablethe department to lead further evidence before him. For thesaid purpose also, reasons are required to be recorded bythe disciplinary authority. An opportunity of hearing to thedelinquent officer is required to be given. However, in theevent, the disciplinary authority comes to the conclusionthat the conclusion arrived at by the enquiry officer on thebasis of materials placed by the parties are incorrect, hemay disagree with the said findings but even therefor, he isrequired to record reasons in support thereof. Therequirement of sub-rule (2) or sub-rule (3) having not beencomplied with, the enquiry officer could not have arrived ata different finding. The High Court unfortunately did notconsider this aspect of the matter.19. When an employee, by reason of an alleged act ofmisconduct, is sought to be deprived of his livelihood, theprocedures laid down under the sub-rules are required to bestrictly followed. It is now well settled that a judicialreview would lie even if there is an error of law apparenton the face of the record. If statutory authority uses itspower in a manner not provided for in the statute or passesan order without application of mind, judicial review wouldbe maintainable. Even an error of fact for sufficientreasons may attract the principles of judicial review." https://hcservices.ecourts.gov.in/hcservices/ (viii)(2008) 3 SCC 484 (Moni Shankar vs. Union of India andanother) :"17. The departmental proceeding is a quasi-judicialone. Although the provisions of the Evidence Act are notapplicable in the said proceeding, principles of naturaljustice are required to be complied with. The courtsexercising power of judicial review are entitled toconsider as to whether while inferring commission ofmisconduct on the part of a delinquent officer relevantpiece of evidence has been taken into consideration andirrelevant facts have been excluded therefrom. Inference onfacts must be based on evidence which meet the requirementsof legal principles. The Tribunal was, thus, entitled toarrive at its own conclusion on the premise that theevidence adduced by the Department, even if it is taken onits face value to be correct in its entirety, meet therequirements of burden of proof, namely, preponderance ofprobability. If on such evidences, the test of the doctrineof proportionality has not been satisfied, the Tribunal waswithin its domain to interfere. We must place on recordthat the doctrine of unreasonableness is giving way to thedoctrine of proportionality."(ix) 2009 (2) SCC 570 (Roop Singh Negi vs. Punjab NationalBank & others) :"14. Indisputably, a departmental proceeding is aquasi-judicial proceeding. The enquiry officer performs aquasi-judicial function. The charges levelled against thedelinquent officer must be found to have been proved. Theenquiry officer has a duty to arrive at a finding upontaking into consideration the materials brought on recordby the parties. The purported evidence collected duringinvestigation by the investigating officer against all theaccused by itself could not be treated to be evidence inthe disciplinary proceeding. No witness was examined toprove the said documents. The management witnesses merelytendered the documents and did not prove the contentsthereof. Reliance, inter alia, was placed by the enquiryofficer on the FIR which could not have been treated asevidence.15. We have noticed hereinbefore that the only basicevidence whereupon reliance has been placed by the enquiryofficer was the purported confession made by the appellantbefore the police. According to the appellant, he wasforced to sign on the said confession, as he was torturedin the police station. The appellant being an employee ofthe Bank, the said confession should have been proved. Some https://hcservices.ecourts.gov.in/hcservices/ evidence should have been brought on record to show that hehad indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirectevidence. The tenor of the report demonstrates that theenquiry officer had made up his mind to find him guilty asotherwise he would not have proceeded on the basis that theoffence was committed in such a manner that no evidence wasleft."(x) (2010) 2 SCC 772 (State of Uttar Pradesh and others vs. Saroj Kumar Sinha) :"28.An inquiry officer acting in a quasi-judicialauthority is in the position of an independent adjudicator.He is not supposed to be a representative of thedepartment/disciplinary authority/Government. His functionis to examine the evidence presented by the Department, evenin the absence of the delinquent official to see as towhether the unrebutted evidence is sufficient to hold thatthe charges are proved. In the present case the aforesaidprocedure has not been observed. Since no oral evidence hasbeen examined the documents have not been proved, and couldnot have been taken into consideration to conclude that thecharges have been proved against the respondents."(xi) (2010) 5 MLJ 265 (V.Baskaran vs. Director of CollegiateEducation, Chennai – 6 and another) :"8. As per the above decision of the Division Bench, it is clear that the Disciplinary authority should givespecific notice stating that he intends to disagree withthe findings of the enquiry officer. Thereafter, heshould seek for further explanation from the delinquentofficer. If necessary, the delinquent has also to begiven a personal hearing. Only thereafter, an order canbe passed taking into consideration the furtherrepresentation also. In this case, this has not beenfollowed by the disciplinary authority. Therefore, theorder passed by the disciplinary authority, withoutmandatory notice intimating the delinquent that he isdisagreeing with the findings of the enquiry officer, isper se illegal."(xii) (2010) 5 MLJ 346 (S.Arumugathiraviam vs. Tamil Nadu SmallIndustries Corporation Ltd., Chennai) :"37.... In a case where the enquiry officer comes tothe conclusion that the charges are not proved and if thedisciplinary authority proposes to disagree from the same, then the disciplinary authority is bound to communicate the https://hcservices.ecourts.gov.in/hcservices/ delinquent officer, the reasons for disagreeing with thefindings of the enquiry officer, so as to enable thedelinquent to submit his further representation on thefindings recorded by the disciplinary authority. It iswell settled that no man should be condemned unheard. Thisaspect has been well considered by the Supreme Court in acatena of decisions and it is worthwhile to extract fewdecisions."(xiii)an unreported decision dated 12.05.2011 made inW.P.No.5201 of 2004 in the case of M.Shahul Hameed vs. The ManagingDirector, TIIC :"12.Non-examination of relevant witnesses : Thesecond point raised in this matter is that no oral evidencewas let in support of the charges levelled against thepetitioner and no opportunity was given to him to bring outthe truth and the proceedings of the Enquiry Officer wereone-sided. On 30.08.2000, the Enquiry Officer made hisreport holding the petitioner guilty of all the chargesexcept Charge No.7. The 1st respondent/DisciplinaryAuthority, i.e. the Managing Director accepted thepetitioner's explanation only in respect of charges 1 to 6and held him not guilty of the same. However, thedisciplinary authority held that the other charges againstthe petitioner as proved. This claim of the petitioner hasbeen refuted by the respondents that when the oral evidenceis recorded and when the entire case is based on thedocuments, which is the best form of evidence, there is noneed of oral evidence. The borrower of the Company againstwhom the petitioner has sanctioned a loan, based on whichthe proceedings are initiated, has not been called inquestion by bringing him before the Enquiry Officer andputting him in box. Therefore, without calling theconcerned person for examination and cross-examination, theentire proceedings are vitiated on the ground of non-examination of witness and it can be only a case of noevidence. 12(a). The legal principles are settled that whenserious charges are framed and it is required to be provedto the guilt, as it brings civil and criminal consequenceson the employer concerned, he would be liable to beprosecuted. Such a grave charge of quasi-criminal naturewas required to be proved beyond any shadow of doubt and tothe hilt. It cannot be proved on mere probabilitieswithout taking evidence. It is also well settled now thatan enquiry is to be conducted against any person givingstrict adherence to the statutory provisions and principlesof natural justice. The charges should be specific, https://hcservices.ecourts.gov.in/hcservices/ definite and giving details of the incident which formedthe basis of charges. Enquiry has to be conducted fairlyand objectively and not subjectively. Finding should notbe perverse or unreasonable, nor the same should be basedon conjectures and surmises. There is a distinction inproof and suspicion. Every act or omission on the part ofthe delinquent cannot be a misconduct. The authority mustrecord reasons for arriving at the finding of fact in thecontext of the statute defining the misconduct.12(b). In a recent decision of the Supreme Courtreported in (2009) 2 SCC 570 in the case of Roop Singh Negivs. Punjab National Bank & others, it is laid down that ina departmental proceeding, which is quasi judicial innature, the Enquiry Officer performs a quasi judicialfunction. The charges levelled against the delinquentofficer must be found to have been proved. The EnquiryOfficer has a duty to arrive at a finding upon taking intoconsideration the materials brought on record by theparties. The purported evidence collected duringinvestigation by the Investigating Officer against all theaccused by itself, could not be treated to be evidence inthe disciplinary proceeding. No witness was examined toprove the said documents. The management witnesses merelytendered the documents and did not prove the contentsthereof. Reliance was placed by the Enquiry Officer on theFIR which could not have been treated as evidence. Therefore, the only basic evidence whereupon reliance hasbeen placed by the Enquiry Officer, was the purportedconfession made by the appellant before the police andthere was no direct evidence. Even there was no indirectevidence. The Enquiry Officer had made up his mind to findhim guilty, as otherwise he would not have proceeded on thebasis that the offence was committed in such a manner thatno evidence was left. "(xiv) (2006) 5 SCC 88 (M.V.Bijlani vs. Union of India andothers) :"25.It is true that the jurisdiction of the court injudicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should besome evidence to prove the charge. Although the charges ina departmental proceeding are not required to be provedlike a criminal trial i.e. beyond all reasonable doubt, wecannot lose sight of the fact that the enquiry officerperforms a quasi-judicial function, who upon analysing thedocuments must arrive at a conclusion that there had beena preponderance of probability to prove the charges on thebasis of materials on record. While doing so, he cannot https://hcservices.ecourts.gov.in/hcservices/ take into consideration any irrelevant fact. He cannotrefuse to consider the relevant facts. He cannot shift theburden of proof. He cannot reject the relevant testimonyof the witnesses only on the basis of surmises andconjectures. He cannot enquire into the allegations withwhich the delinquent officer had not been charged with."(xv)(2010) 4 SCC 491 (Life Insurance Corporation of India andanother vs. Ram Pal Singh Bisen) :"25. We are of the firm opinion that mere admission ofa document in evidence does not amount to its proof. Inother words, mere marking of exhibit on a document does notdispense with its proof, which is required to be done inaccordance with law."(xvi)(2010) 5 SCC 349 (Union of India and others vs. AlokKumar) :"83. Earlier, in some of the cases, this Court hadtaken the view that breach of principles of natural justicewas in itself a prejudice and no other “de facto” prejudiceneeds to be proved. In regard to statutory rules, theprominent view was that the violation of mandatory statutoryrules would tantamount to prejudice but where the rule ismerely directory the element of de facto prejudice needs tobe pleaded and shown. With the development of law, rigidityin these rules is somewhat relaxed. The instance of de factoprejudice has been accepted as an essential feature wherethere is violation of the non-mandatory rules or violationof natural justice as it is understood in its commonparlance. Taking an instance, in a departmental enquirywhere the department relies upon a large number of documentsmajority of which are furnished and an opportunity isgranted to the delinquent officer to defend himself exceptthat some copies of formal documents had not been furnishedto the delinquent. In that event the onus is upon theemployee to show that non-furnishing of these formaldocuments have resulted in de facto prejudice and he hasbeen put to a disadvantage as a result thereof."(xvii) (2010) 5 SCC 775 (Administrator, Union Territory ofDadra and Nagar Haveli vs. Gulabhia M. Lad) :"13. In State of Meghalaya v. Mecken Singh N. Marak9 thisCourt stated: (SCC p.584, para 14)“14. In the matter of imposition of sentence, the scope for interference is very limited andrestricted to exceptional cases. The jurisdiction ofthe High Court, to interfere with the quantum of https://hcservices.ecourts.gov.in/hcservices/ punishment is limited and cannot be exercisedwithout sufficient reasons. The High Court, althoughhas jurisdiction in appropriate case, to considerthe question in regard to the quantum of punishment, but it has a limited role to play. It is now wellsettled that the High Courts, in exercise of powersunder Article 226, do not interfere with the quantumof punishment unless there exist sufficient reasonstherefor. The punishment imposed by the disciplinaryauthority or the appellate authority unless shockingto the conscience of the court, cannot be subjectedto judicial review. In the impugned order of theHigh Court no reasons whatsoever have been indicatedas to why the punishment was considereddisproportionate. Failure to give reasons amounts todenial of justice. The mere statement that it isdisproportionate would not suffice.”14. The legal position is fairly well settled thatwhile exercising the power of judicial review, the HighCourt or a Tribunal cannot interfere with the discretionexercised by the disciplinary authority, and/or on appealthe appellate authority with regard to the imposition ofpunishment unless such discretion suffers from illegality ormaterial procedural irregularity or that would shock theconscience of the court/tribunal. The exercise of discretionin imposition of punishment by the disciplinary authority orappellate authority is dependent on host of factors such asgravity of misconduct, past conduct, the nature of dutiesassigned to the delinquent, responsibility of the positionthat the delinquent holds, previous penalty, if any, and thediscipline required to be maintained in the department orestablishment he works. Ordinarily the court or a tribunalwould not substitute its opinion on reappraisal of facts."(xviii) (2005) 1 SCC 13 (Ganesh Santa Ram Sirur vs. State Bankof India and another) :"34. The bank manager/officer and employees of anybank, nationalised/or non-nationalised, are expected to actand discharge their functions in accordance with the rulesand regulations of the bank. Acting beyond one’s authorityis by itself a breach of discipline and trust and amisconduct. In the instant case Charge 5 framed against theappellant is very serious and grave in nature. We havealready extracted the relevant Rule which prohibits thebank manager to sanction a loan to his wife or his relativeor to any partner. While sanctioning the loan the appellantdid not appear to have kept this aspect in mind and actedillegally and sanctioned the loan. He realised the mistake https://hcservices.ecourts.gov.in/hcservices/ later and tried to salvage the same by not encashing thedraft issued in the maiden name of his wife though thedraft was issued but not encashed. The decision to sanctiona loan is not an honest decision. Rule 34(3)(1) is a ruleof integrity and, therefore, as rightly pointed out by MrSalve, the respondent Bank cannot afford to have theappellant as bank manager. The punishment of removalawarded by the appellate authority is just and proper inthe facts and circumstances of the case. Before concluding, we may usefully rely on the judgment Regional Manager, U.P.SRTC v. Hoti Lal13 wherein this Court has held as under:(SCC p.614, para 10)“If the charged employee holds a position oftrust where honesty and integrity are inbuiltrequirements of functioning, it would not be properto deal with the matter leniently. Misconduct insuch cases has to be dealt with iron hands. Wherethe person deals with public money or is engaged infinancial transactions or acts in a fiduciarycapacity, the highest degree of integrity andtrustworthiness is a must and unexceptionable. Judged in that background, conclusions of theDivision Bench of the High Court do not appear tobe proper. We set aside the same and restore orderof the learned Single Judge upholding the order ofdismissal.”(xix) 1997 (7) SCC 463 (Union of India & another vs.G.Ganayutham:"31. The current position of proportionality inadministrative law in England and India can be summarisedas follows:(1) To judge the validity of any administrative orderor statutory discretion, normally the Wednesbury test is tobe applied to find out if the decision was illegal orsuffered from procedural improprieties or was one which nosensible decision-maker could, on the material before himand within the framework of the law, have arrived at. Thecourt would consider whether relevant matters had not beentaken into account or whether irrelevant matters had beentaken into account or whether the action was not bona fide. The court would also consider whether the decision wasabsurd or perverse. The court would not however go into thecorrectness of the choice made by the administrator amongstthe various alternatives open to him. Nor could the courtsubstitute its decision to that of the administrator. Thisis the Wednesbury test. https://hcservices.ecourts.gov.in/hcservices/ (2) The court would not interfere with theadministrator’s decision unless it was illegal or sufferedfrom procedural impropriety or was irrational — in thesense that it was in outrageous defiance of logic or moralstandards. The possibility of other tests, includingproportionality being brought into English administrativelaw in future is not ruled out. These are the CCSUprinciples.(3)(a) As per Bugdaycay20, Brind12 and Smith19 as longas the Convention is not incorporated into English law, theEnglish courts merely exercise a secondary judgment to findout if the decision-maker could have, on the materialbefore him, arrived at the primary judgment in the mannerhe has done.(3)(b) If the Convention is incorporated in Englandmaking available the principle of proportionality, then theEnglish courts will render primary judgment on the validityof the administrative action and find out if therestriction is disproportionate or excessive or is notbased upon a fair balancing of the fundamental freedom andthe need for the restriction thereupon.(4)(a) The position in our country, in administrativelaw, where no fundamental freedoms as aforesaid areinvolved, is that the courts/tribunals will only play asecondary role while the primary judgment as toreasonableness will remain with the executive oradministrative authority. The secondary judgment of thecourt is to be based on Wednesbury and CCSU principles asstated by Lord Greene and Lord Diplock respectively to findif the executive or administrative authority has reasonablyarrived at his decision as the primary authority.(4)(b) Whether in the case of administrative orexecutive action affecting fundamental freedoms, the courtsin our country will apply the principle of“proportionality” and assume a primary role, is left open, to be decided in an appropriate case where such action isalleged to offend fundamental freedoms. It will be thennecessary to decide whether the courts will have a primaryrole only if the freedoms under Articles 19, 21 etc. areinvolved and not for Article 14.33. In Ranjit Thakur this Court interfered with thepunishment only after coming to the conclusion that thepunishment was in outrageous defiance of logic and wasshocking. It was also described as perverse and irrational. https://hcservices.ecourts.gov.in/hcservices/ In other words, this Court felt that, on facts, Wednesburyand CCSU tests were satisfied. In another case, in B.C.Chaturvedi v. Union of India a three-Judge Bench said thesame thing as follows: (SCC p.762, para 18)“18. ... The High Court/Tribunal, whileexercising the power of judicial review, cannotnormally substitute its own conclusion on penaltyand impose some other penalty. If the punishmentimposed by the disciplinary authority or theappellate authority shocks the conscience of theHigh Court/Tribunal, it would appropriately mouldthe relief, either directing the disciplinaryauthority/appellate authority to reconsider thepenalty imposed, or to shorten the litigation, itmay itself, in exceptional and rare cases, imposeappropriate punishment with cogent reasons insupport thereof.”(xx)2011 (4) SCC 584 (State Bank of Bikaner & Jaipur vs. Nemichand Nalwaya :"7.It is now well settled that the courts will notact as an appellate court and reassess the evidence led inthe domestic enquiry, nor interfere on the ground thatanother view is possible on the material on record. If theenquiry has been fairly and properly held and the findingsare based on evidence, the question of adequacy of theevidence or the reliable nature of the evidence will not begrounds for interfering with the findings in departmentalenquiries. Therefore, courts will not interfere withfindings of fact recorded in departmental enquiries, exceptwhere such findings are based on no evidence or where theyare clearly perverse. The test to find out perversity is tosee whether a tribunal acting reasonably could have arrivedat such conclusion or finding, on the material on record. The courts will however interfere with the findings indisciplinary matters, if principles of natural justice orstatutory regulations have been violated or if the order isfound to be arbitrary, capricious, mala fide or based onextraneous considerations."(xxi)AIR 1979 SC 1022 (Union of India and others vs.J.Ahmed) :"9.The expression “devotion to duty” appears to havebeen used as something opposed to indifference to duty oreasy-going or light-hearted approach to duty. If Rule 3 werethe only rule in the Conduct Rules it would have been ratherdifficult to ascertain what constitutes misconduct in a https://hcservices.ecourts.gov.in/hcservices/ given situation. But Rules 4 to 18 of the Conduct Rulesprescribe code of conduct for members of service and it canbe safely stated that an act or omission contrary to or inbreach of prescribed rules of conduct would constitutemisconduct for disciplinary proceedings. This code ofconduct being not exhaustive it would not be prudent to saythat only that act or omission would constitute misconductfor the purpose of Discipline and Appeal Rules which iscontrary to the various provisions in the Conduct Rules. Theinhibitions in the Conduct Rules clearly provide that an actor omission contrary thereto so as to run counter to theexpected code of conduct would certainly constitutemisconduct. Some other act or omission may as wellconstitute misconduct. Allegations in the various charges donot specify any act or omission in derogation of or contraryto Conduct Rules save the general Rule 3 prescribingdevotion to duty. It is, however, difficult to believe thatlack of efficiency, failure to attain the highest standardof administrative ability while holding a high post wouldthemselves constitute misconduct. If it is so, every officerrated average would be guilty of misconduct. Charges in thiscase as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses onthe part of the respondent. These deficiencies in personalcharacter or personal ability would not constitutemisconduct for the purpose of disciplinary proceedings.11.... It is, however, difficult to believe thatlack of efficiency or attainment of highest standards indischarge of duty attached to public office would ipso factoconstitute misconduct. There may be negligence inperformance of duty and a lapse in performance of duty orerror of judgment in evaluating the developing situation maybe negligence in discharge of duty but would not constitutemisconduct unless the consequences directly attributable tonegligence would be such as to be irreparable or theresultant damage would be so heavy that the degree ofculpability would be very high. An error can be indicativeof negligence and the degree of culpability may indicate thegrossness of the negligence. Carelessness can often beproductive of more harm than deliberate wickedness ormalevolence. Leaving aside the classic example of the sentrywho sleeps at his post and allows the enemy to slip through, there are other more familiar instances of which a railwaycabinman signals in a train on the same track where there isa stationery train causing head-on collision; a nurse givingintravenous injection which ought to be given intramuscularcausing instantaneous death; a pilot overlooking aninstrument showing snag in engine and the aircraft crashescausing heavy loss of life. Misplaced sympathy can be a https://hcservices.ecourts.gov.in/hcservices/ great evil (see Navinchandra Shakerchand Shah v. Manager, Ahmedabad Coop. Department Stores Ltd.8). But in any case, failure to attain the highest standard of efficiency inperformance of duty permitting an inference of negligencewould not constitute misconduct nor for the purpose of Rule3 of the Conduct Rules as would indicate lack of devotion toduty."(xxii) (2009) 7 SCC 248 (Ramanuj Pandey vs. State of MadhyaPradesh and others) :"7. Learned counsel would draw our attention to thecase of B.C. Chaturvedi v. Union of India1, wherein thisCourt held that: (SCC p.762, para 18)“18. A review of the above legal position wouldestablish that the disciplinary authority, and onappeal the appellate authority, being fact-findingauthorities have exclusive power to consider theevidence with a view to maintain discipline. Theyare invested with the discretion to imposeappropriate punishment keeping in view the magnitudeor gravity of the misconduct. The HighCourt/Tribunal, while exercising the power ofjudicial review, cannot normally substitute its ownconclusion on penalty and impose some other penalty.If the punishment imposed by the disciplinaryauthority or the appellate authority shocks theconscience of the High Court/Tribunal, it wouldappropriately mould the relief, either directing thedisciplinary/appellate authority to reconsider thepenalty imposed, or to shorten the litigation, itmay itself, in exceptional and rare cases, imposeappropriate punishment with cogent reasons insupport thereof.”8. In Commr. of Police v. Syed Hussain2, this Courtobserved that: (SCC pp.176-77, paras 10 & 13)“10. It is one thing to say that order passed bythe statutory authority is wholly arbitrary andthus violative of Article 14 of the Constitutionand thus liable to be set aside, but it isanother thing to say that the discretionaryjurisdiction exercised by such authority shouldnot ordinarily be interfered with by a superiorcourt while exercising its power of judicialreview unless one or the other ground upon whichand on the basis whereof the power of judicialreview can be exercised, exists. https://hcservices.ecourts.gov.in/hcservices/

#13. It is, therefore, beyond any doubt ordispute that the doctrine of proportionality hasto be applied in appropriate case as the depth ofjudicial review will depend on the facts andcircumstances of each case.”9. Admittedly, it is for the disciplinary authority orthe administrative authority to decide the quantum ofpunishment in a case of misconduct and the role of the courtis only secondary. But in view of the gravity of themisconduct, namely, the appellant having apprehended LaxmiNarain and registering him under Section 13 of the LunacyAct, where the disciplinary authority held the appellantguilty for detaining a public servant in police post withoutany reason and removed him from government service, theinterference with the imposition of punishment is necessary.10. In the present matter the appellant, whiledischarging his duties apprehended Laxmi Narain andregistered him under the Lunacy Act without any sufficientreasons. This act of his had indisputably caused harassmentto Laxmi Narain and was detrimental to the image of thePolice Department, but the same was also not grave enough topunish him with removal from services. The appellant as aHead Constable was bestowed with official duties and whiledischarging them he went outside its purview, whichdefinitely warrants that his services must be terminated, but as a warning to others and not as a vengeance.11. While considering the power to interfere with theorder of punishment, this Court in Rangaswami v. State ofT.N.3, held that this Court, while exercising thejurisdiction under Article 136 of the Constitution, isempowered to alter or interfere with the penalty. Accordingly, the punishment of the appellant of dismissalfrom services as imposed by the disciplinary authority issubstituted to one of compulsory retirement from the date ofhis dismissal from service i.e. 7-5-1992."(xxiii) (1987) 4 SCC 611 (Ranjit Thakur vs. Union of India andothers) :"25. Judicial review generally speaking, is notdirected against a decision, but is directed against the“decision-making process”. The question of the choice andquantum of punishment is within the jurisdiction anddiscretion of the court-martial. But the sentence has tosuit the offence and the offender. It should not be https://hcservices.ecourts.gov.in/hcservices/ vindictive or unduly harsh. It should not be sodisproportionate to the offence as to shock the conscienceand amount in itself to conclusive evidence of bias. Thedoctrine of proportionality, as part of the concept ofjudicial review, would ensure that even on an aspect whichis, otherwise, within the exclusive province of the court-martial, if the decision of the court even as to sentence isan outrageous defiance of logic, then the sentence would notbe immune from correction. Irrationality and perversity arerecognised grounds of judicial review. In Council of CivilService Unions v. Minister for the Civil Service9 LordDiplock said:“Judicial review has I think developed to a stagetoday when, without reiterating any analysis of thesteps by which the development has come about, onecan conveniently classify under three heads thegrounds on which administrative action is subject tocontrol by judicial review. The first ground I wouldcall ‘illegality’, the second ‘irrationality’ andthe third ‘procedural impropriety’. That is not tosay that further development on a case by case basismay not in course of time add further grounds. Ihave in mind particularly the possible adoption inthe future of the principle of ‘proportionality’which is recognised in the administrative law ofseveral of our fellow members of the EuropeanEconomic Community;. . .”6. Mrs. Rita Chandrasekaran, learned counsel appearing forrespondents 1 to 3, has given a point-by-point submission to thegrounds raised by the petitioner, as under :(i) Regarding the first charge that 'the enquiry was conductedin violation of principles of natural justice', learned counsel wouldsubmit that the documents marked as Management exhibits are theauthentic records of the Bank which do not require any specificidentification in the enquiry and without there being any objectionfrom the petitioner with regard to the authenticity/marking ofdocuments during the enquiry, there was no need for the enquiryofficer to prove the same in the enquiry by production of witnesses. Moreover, non-examination of witnesses on behalf of the Managementhas not caused any prejudice to the petitioner as the documents wereunder the custody of the Thousand Lights Branch, where he was a ChiefManager. Therefore, the conduct of the enquiry was not in violationof the principles of natural justice. (ii)Secondly, with regard to the ground 'denial of cross-examination', learned counsel would submit that the petitioner has https://hcservices.ecourts.gov.in/hcservices/ not chosen to examine the veracity and genuineness of the documentsmarked as Management exhibits nor did he examine the author of thedocument. Since the onus was on the petitioner to disprove thecontents of the documents when he had not chosen to do so, he cannotmake an allegation that he was denied the opportunity of cross-examination. (iii)With regard to the grounds 3 and 4 that 'theDisciplinary authority substituted the finding without affording anopportunity to the petitioner' and 'Charges which were not dealt bythe Inquiring Authority were dealt with by the DisciplinaryAuthority', learned counsel would submit that the DisciplinaryAuthority, by his order dated 17.04.2000 had concurred with thefindings of the Enquiry Officer with regard to all the charges. Asfar as Charge No.5 is concerned, he had decided to ignore theimputation as it was in favour of the petitioner. As far as ChargeNo.6 is concerned, the Disciplinary Authority has not dealt with thesame. Charge Nos.1 to 4 which are grave in nature were found to beproved for which the major penalty of "dismissal from service withimmediate effect" was imposed on the petitioner. Therefore, theallegation that the Disciplinary Authority substituted the findingswithout affording an opportunity to the petitioner does not arise. (iv)As regards the ground raised by the petitioner that 'nomonetary loss was caused to the Bank', she would submit that thepetitioner cannot take credit for the steps taken by the Bank insettling the account, as it was not to absolve the irregularitiescommitted by him in the account. (v)As far as the point of 'proportionality' is concerned, learned counsel would submit that the irregularities were committedby the petitioner by opening further LCs in favour of the borrower byexceeding his powers. She would contend that since the gravity ofmisconduct committed by the petitioner warranted the punishment ofdismissal, he was imposed the punishment and he cannot comparehimself with the action taken against others.7. I have heard the learned counsel for the parties andalso gone through the records as well as the decisions cited.8. While the petitioner was working as Chief Manager inThousand Lights Branch of Indian Bank, Chennai, between 27.07.1995and 31.03.1996, it appears, he submitted a Renewal proposal dated25.11.1995 based on the request of the parties and at the instance ofthe Zonal Office of the Bank, recommending the following limits :(a) Demand loan of Rs.12 crores(b) Bill discount (CSBP/DABP for 90 days) limit of Rs.5 crores(c) Open cash credit of Rs.5 crores(d) OD/Book debts for 90 days of Rs.8 crores(e) Letter of Credit/DA Inland 90-180 days of Rs.15 crores https://hcservices.ecourts.gov.in/hcservices/

#9. Apart from seeking note ratification of the action of theBranch in extending certain adhoc facilities on the advice of theZonal Manager, the irregularities prevailing in the account werespecifically highlighted in the said proposal. The renewal proposalwas recommended by the Zonal Office to the Head Office of the Bankand a note was placed to the Board recommending the renewal proposaland ratification of the action of the Zonal Manager and CMD inadvising the Branch to release overdrafts and opening of letter ofcredit. But, the renewal proposal was not approved and the action ofthe Zonal Manager and the former CMD of the Bank was not ratified, asa result of which, the action of the Branch in opening the letters ofcredit and release of overdraft limits were treated as unauthorisedand in violation of extant guidelines/Circular by the Bank from timeto time. Therefore, on 02.04.1996, the petitioner was suspended fromthe services of the Bank and an explanation was called for on25.04.1996 by the Chief Vigilance Officer with regard to the allegedirregularities in the loan account of M/s.Gemini Picture CircuitPrivate Limited and also stating that he has failed to monitor theaccount properly and allowed the party to enjoy Inland LC limits, adhoc sanction limit, TOD and clean OD, with irregularities andabsence of securities cover by way of proper Equitable Mortgage andhad exposed the Bank to a huge financial risk. The petitionersubmitted a reply dated 04.07.1996 in detail denying the allegations, pointing out the fact that excess limit was allowed on theinstruction/knowledge of CMD and Zonal Manager and it was notpermitted by him and as far as the mortgage is concerned, the samewas available as security when the limit was in the Harbour Branchand continued in the Thousand Lights Branch. Not being satisfiedwith the said reply of the petitioner, the Disciplinary Authorityissued a charge sheet on 18.05.1998, with the following charges :"The branch having pointed out theirregularities in the conduct of the account, vide confirmation notes to Board/EC dated21.07.95, 12.08.95 and 08.09.95, such as that thecompany had not been building up funds to meetthe LCs on due dates : LCs are opened in favourof M/s.Asian Photo Films (P) Ltd. which is asister concern: the instalments under the BlockedLoan were overdue, company not submitting thefinancial statements for renewal of the facilitywhich expired on 04.06.95, and QIS statementswere not submitted by the party, you have allowedopening of further LCs and also recommended 3Adhoc LCs opened on 14.10.95 and 12.12.95 for atotal of Rs.1000.00 lakhs over and above theregular limit of Rs.1000.00 lakhs. https://hcservices.ecourts.gov.in/hcservices/ You failed to ensure building up of funds bythe company to meet the LCs on due dates andconsequently when the LCs including the adhoc LCsdeveloped on the Bank, the Advanced Billsliability was created. Despite the fact that there werediscrepancies in the LC Agreements and theBills/Hundies received under LC, you have allowedto open LCs and followed to debit Advance Bills. Apart from the Adhoc LCs for Rs.1000.00lakhs, you have allowed excess in the regular LClimit of Rs.1000.00 lakhs withoutpowers/confirmation. You have allowed the TOD of Rs.200.00 lakhsand Rs.150.00 lakhs permitted by CMD and ZM,Chennai on 28.09.95 and 11.11.95 respectivelyeven beyond the 90 days permitted and allowedexcess. When the company did not have any piece ofland allotted to it out of the property held asEM of 15 grounds 1576 sq.ft and another 1 ground1600 sq.ft at Gemini Complex, Mount Road, Chennaion account of the compromise decree dated25.04.95 passed by the Honourable High Court ofChennai allotting the said property to M/s.GeminiResorts and Holdings Ltd. and M/s.RavishankarEstates Pvt. Ltd., you have created extension ofEM on the above property on 22.12.95 which has novalue and the Bank has been deprived of securitycover of that property. Your failure to properly monitor theaccount, your actions in continuing the facilityon lapsed sanctions, allowing excess withoutpowers and not taking proper care to have the EMcover for the facilities, have exposed the Bank, to risk of recovery of Rs.2713.54 lakhs(including MOI) as on 07.07.97 and the Bank hasfiled a suit for recovery."10. To the above charges, the petitioner submitted anexplanation dated 06.07.1998, pointing out that he has always keptthe Zonal Office and Head Office informed about the account and thealleged excess were not really excess and they were all allowed withprior permission of the Zonal Manager or against security by way ofFixed Deposit. However, not satisfied with his explanation, the https://hcservices.ecourts.gov.in/hcservices/ Disciplinary Authority ordered Departmental Enquiry appointingMr.Suman Nayar as Inquiring Authority. The said Inquiring Authorityconducted the hearing on 14.10.1998, 27.11.1998 and 11.01.1999 andconcluded the enquiry and submitted his report on 30.04.1999, holdingas under :"Allegation 1 :As regards (a) CO's main submission is that he had opened LCsonly within the sanctioned limit of Rs.1000 lakhs. I accept thesubmission that unless until the limits were cancelled or the accountwas recalled, CO cannot withhold opening of fresh LC on his ownwithin the sanctioned limits. PO has not produced any evidence toshow that CO had exceeded the sanctioned limit while opening thesefresh LCs. In view of this, I reject the allegation and hold it as"Not Proved".As regards (b), CO has accepted that he had opened these LCs aspermitted by ZM. In view of this, the factual contents of theallegation stands established and accordingly, I hold the allegationas "Proved".As regards (c), CO has admitted that in spite of his monitoringthe party did not meet their commitment and branch had to meet thecommitment by debiting advance bill account. Thus, the factualcontents of the allegations stand established and accordingly I holdthe allegation as "Proved".Allegation 2 :Perusal of Ex.M.8, M9 and M.10 confirm the existing of abovementioned discrepancies making these documents as invalid documents.If CO had not put his signatures on Ex.M.11, he as branch-in-chargewas responsible in his supervisory capacity. As branch-in-charge hewas expected to scrutinise the days' vouchers at the end of the dayfor any defects/deficiencies in any of them and deal appropriatelywith those vouchers. This has not been done pointing out CO'ssupervisory failure. In view of this, I accept the allegation assubstantiated and hold it as "Proved".Allegation 3 :Perusal of Ex.M.20 and D.22, D.25 and D.26 clearly proves theexcess allowed on 22.9.95 of Rs.24.67 lacs and of Rs.28.66 lacsallowed on 26.12.95. However, PO has not produced any document toprove the excess of Rs.104.85 lacs. Hence, I reject the allegationregarding excess of Rs.104.85 lacs as unsubstantiated. CO has notdenied the excess of Rs.24.67 lacs and Rs.28.66 lacs allowed on22.9.95 and 26.12.95 respectively. Accordingly, I accept this partof allegation as substantiated and hold as it as "Proved". https://hcservices.ecourts.gov.in/hcservices/ Allegation No.4 :CO has not denied that he had failed to recover the dues. Hismain submission is that in spite of his best efforts, party did notrespond. This amounts to admission of the factual contents of theallegation and accordingly I hold the allegation as "Proved".Allegation No.5 :CO's submissions are vague and evasive. He is silent aboutaction taken by him on Ex.M.14 subsequent to his joining the branch.He has also not denied that he had allowed creation of extension ofEM on 22.12.95. In view of his silence on these issues, I accept theallegation as substantiated and hold it as 'Proved". Allegation No.6:This allegation is consequential to the allegations discussedearlier under heading Nos.1 to 5 and does not represent anyseparate/distinct act of irregularity on the part of CO.Accordingly, it is not examined separately. From the above findings of the Inquiring Authority, it isclear that Charge 1 (a) against the Charged Officer/delinquentofficer/petitioner herein has not been proved; Charges 1 (b) 1 (c),2,4 and 5 are proved and Charge 3 is partly proved. While concluding, the Inquiring Authority has held the charges as "Proved"."11. Thereafter, the petitioner submitted a detailedrepresentation to the Disciplinary Authority about the allegedinfirmity in the enquiry report. Pursuant thereto, on 17.04.2000, theDisciplinary Authority has dealt with the matter in detail, makingimputation-wise observations, and passed orders, the summing up ofwhich is as under :"The Charges (1) to (4) deal with yourlapses in containing the facility on a lapsedsanction, recommending Adhoc facilities whileirregularities persisted in the accounts, supervisory failure in accepting bills under LCswhich are not in conformity with LC terms andallowing excess in LC and OD without powers orauthority.In the face of continuing irregularities, instead of enforcing credit/financial discipline, you had been obliging the borrower as may be seenfrom the Imputations 1 to 4. The intention ofthe borrower to pay the dues are brought out by https://hcservices.ecourts.gov.in/hcservices/ defence as seen from the exhibits produced. Theefforts for recovery by your successor and thehigher authorities are also produced as defencedocuments as DEX33,34,35,36,37,38,39 and 41. Forthese efforts and offers for recovery, you cannottake credit as they pertain to the period afteryour tenure at the branch. In spite of allthese, the recovery had not been forthcoming andthe fact remains that the Bank had to file suitfor recovery which is still not concluded. Therisk of recovery is still there and how far thesecurity available will cover the dues is amatter that can be known only when the suit isfinally disposed off and assets/securitiesencashed. Had you taken corrective steps in viewof irregularities that subsisted, the positionwould not have gone so bad as it exists today. In view of the above, the final observationof IA holding charges as proved is concurredwith. The charges held proved as narrated aboveare serious in nature indicating that you hadacted without devotion and diligence, affectingthe interest of the Bank and exposing the Bank torisk of recovery of a very huge amount. In viewof the above, I impose on you a Major Penalty of"DISMISSAL FROM SERVICE WITH IMMEDIATE EFFECT" interms of Regulation 4 (j) of Indian Bank OfficerEmployees' (Discipline and Appeal) Regulations1976 as amended and communicated in CO:PersonnelDepartment Circular No.PRNL:002:99:2000 dated07.04.1999." 12. While holding as above, the Disciplinary Authority hasconcurred with the findings of the Inquiring Authority. Since thecharges held proved were serious in nature and that the petitionerhad acted without devotion and diligence, affecting the interest ofthe Bank and exposing the Bank to risk of recovery of a very hugeamount, the Disciplinary Authority had imposed the major punishmentof Dismissal from Service, as per Regulation 4 (j) of theRegulations. Thereafter, on appeal by the petitioner, the AppellateAuthority, namely, second respondent herein, by his order dated18.12.2006, dismissed the appeal, holding that there was no freshmaterial for consideration in the appeal. Pursuant thereto, thepetitioner preferred a Review Petition before the Chairman andManaging Director, first respondent herein, who, by his order dated,19.05.2007, dismissed the Review Petition, having regard to thegravity of the charges. https://hcservices.ecourts.gov.in/hcservices/

#13. The mainstay of the petitioner is that the accountmentioned in the charge sheet is adjusted and hence, he cannot beheld guilty. In this regard, it is to be stated that the successorof petitioner and also the higher authorities had taken efforts forrecovery, after the tenure of the petitioner at that branch, forwhich the petitioner cannot take credit. Had the petitioner takencorrective steps against the irregularities that subsisted, the bankwould not have been put to risk of recovery of a very huge amount, asstated by the respondents. Failure to do so is a clear indication ofthe petitioner in not acting with devotion and diligence, therebyaffecting the interest of the Bank.14. The documents marked as Management exhibits are theauthentic records of the Bank which do not require any specificidentification in the enquiry and without there being any objectionfrom the petitioner with regard to the authenticity/marking ofdocuments during the enquiry, there was no need for the enquiryofficer to prove the same in the enquiry by production of witnesses. Further, non-examination of witnesses on behalf of the Management hasnot caused any prejudice to the petitioner, as the documents wereunder the custody of the Thousand Lights Branch, where he was theChief Manager. Therefore, the conduct of the enquiry was not inviolation of the principles of natural justice. 15.The Disciplinary Authority, by his order dated17.04.2000, had concurred with the findings of the InquiringAuthority with regard to all the charges. As far as Charge No.6 isconcerned, the Inquiring Authority did not examine the sameseparately, as the exposure to risk of recovery of Bank funds was aconsequential action of the lapses under Charges 1 to 5, and the samewas also concurred with. Charge 1 (a), which was held not proved bythe Inquiring Authority, was also concurred with by the DisciplinaryAuthority. Since Charge 1 to 5 were grave in nature and found to beproved, the penalty of "dismissal from service with immediateeffect" was imposed on the petitioner by the Disciplinary Authority. Though it is the claim of the petitioner that the Disciplinaryauthority substituted the finding without affording an opportunity tothe petitioner and that Charges which were not dealt with by theInquiring Authority were dealt with by the Disciplinary Authorityindependently, it is not actually so, because, the DisciplinaryAuthority has not substituted the finding of the Inquiring Authorityand also for the reason that the very same charges which were dealtwith by the Inquiring Authority only, were dealt with by theDisciplinary Authority and the findings of the Inquiring Authoritywere concurred with by the Disciplinary Authority in toto. Had theDisciplinary Authority given a different finding vis-a-vis theInquiring Authority, the situation might have been different, whichis not the case here. In addition, the petitioner himself has statedin the affidavit that pursuant to the report of the InquiringAuthority, he submitted a detailed reply to the Disciplinary https://hcservices.ecourts.gov.in/hcservices/ Authority, which reply was also reflected in the order of theDisciplinary Authority, while passing the impugned order. Therefore, his stand that he was not given an opportunity before passing theimpugned order also cannot be countenanced.16. As already stated above, the petitioner cannot takecredit for the steps taken by the Bank in settling the account and itwas also not to absolve the irregularities committed by him in theaccount. Also, as the gravity of misconduct committed by thepetitioner warranted major penalty, he was imposed with thepunishment of dismissal and, hence, by no stretch of imagination, itcan be said that the said punishment is disproportionate to thecharges levelled against the petitioner.17. Clause 3 of the Indian Bank Officer Employees'(Conduct) Regulations,1976, reads as follows :"(1) Every Officer employee shall, at alltimes take all possible steps to ensure andprotect the interests of the bank and dischargehis duties with utmost integrity, honesty, devotion and diligence and do nothing which isunbecoming of a bank officer.(2) Every Officer employee shall maintaingood conduct and discipline and show courtesyand attention to all persons in all transactionsand negotiations.(3) No officer employee shall, in theperformance of his official duties or in theexercise of powers conferred on him, actotherwise than in his best judgment except whenhe is acting under the direction of his officialsuperior.(4) Every officer employee shall take allpossible steps to ensure the integrity anddevotion to duty of all persons for the timebeing under his control and authority."18. A reading of the above provisions would make it clearthat no officer employee, in performance of his official duty or inthe exercise of powers conferred on him, acts otherwise than in hisbest judgment except when he is acting under the direction of hisofficial superior. In the case on hand, the consistent stand of thepetitioner is that he acted as per the instructions of his officialsuperior namely the Zonal Manager as he had to act in furtherance ofhis official duty in accordance with the regulations. But, it cannotbe construed that every instruction of the official superior contrary https://hcservices.ecourts.gov.in/hcservices/ to the regulations should be acted upon. The petitioner knows thisposition very well, but as an obedient officer of the superior, hehas acted and done something which now cannot come to the rescue ofthe petitioner, while examining the plea of the petitioner that he isinnocent and has acted as per the instructions of his superior. Thelaw prescribes what is to be done and what not to be. When that isso, the petitioner should have acted only in accordance with law andit is not as per the instructions alone. Therefore, the plea of thepetitioner on this ground also cannot be acceded to. 19. With regard to the plea of denial of cross-examination, it is to be stated that the petitioner was called upon to inspect thedocuments so also to furnish additional documents, if any, to bemarked as defence documents within the time frame given by theinquiring authority. However, he has not chosen to examine theauthenticity of the documents marked as management exhibits nor didhe examine the author of the documents. The onus was on thepetitioner to disprove the contents of the documents. It is incumbentupon the petitioner to plead and prove the prejudice, if any, thathas been caused due to non-examination of witnesses. Admittedly, thepetitioner has not raised the said issue during the course of enquirynor did he object to the marking of Exhibits MOs.1 to 22. In thisregard, reliance has been placed by the respondents upon thejudgments of the Supreme Court in State Bank of India and Others v.Bidyut Kumar Mitra and Others, 2011 (2) SCC 316 and Union of Indiaand Others v. Alok Kumar, 2010 (5) SCC 349, wherein it has been heldthat in a departmental enquiry, where the department relies upon alarge number of documents, majority of which are furnished and anopportunity is granted to the delinquent officer to defend himselfexcept that some copies of formal documents have not been furnishedto the delinquent, in that event the onus is upon him to show thatnon furnishing of those formal documents have resulted in de-factoprejudice and he has been put to disadvantage as a result thereof.In the present case, the documents which have been marked werefurnished to the petitioner even prior to commencement of the regularenquiry, but he has not chosen to question the veracity orauthenticity or contents of the documents. When the petitioner hadnot chosen to do so, he cannot make an allegation that he was deniedthe opportunity of cross-examination. So, it cannot be said that theenquiry was conducted in an unfair and improper manner. 20. Each officer of the Bank cannot be allowed to carve outhis own little empire wherein he dispenses favours and largesse. Noorganisation, more particularly, a Bank can function properly andeffectively if its officers and employees do not observe theprescribed norms and discipline. Such indiscipline cannot be condonedon the specious ground that it was not actuated by ulterior motivesor by extraneous considerations. The very act of acting beyondauthority, that too a course of conduct spread over a sufficientlylong period and involving innumerable instances, is by itself a https://hcservices.ecourts.gov.in/hcservices/ misconduct. Such acts, if permitted, may bring in profit in somecases but they may also lead to huge losses. Such adventures are notgiven to the employees of Banks which deal with public funds. This isthe law laid down by the Supreme Court in The Disciplinary Authority-Cum- Regional Manager and others vs. Nikunja Bihari Patnaik, citedabove. In the instant case, the Inquiring Authority has recorded aclear finding that the petitioner has committed misconduct of thecharges 1 to 6, except 1 (a), which was not proved, and 6, which wasignored, as it was a consequential action of the lapses under Charges1 to 5 and the said finding was upheld by the Disciplinary Authority, Appellate Authority and also the Revisional Authority, by givingcogent reasons and without any deviation. In such a situation, thisCourt is at a loss to understand as to how could all this becharacterised as errors of judgment by the authorities and not asmisconduct, as defined by the Regulations. The decisions relied uponby the learned counsel for the petitioner are totally on differentfacts and circumstances and not akin to the ones of the present case, except the one in the case of The Disciplinary Authority-Cum-Regional Manager, cited supra, which too against the petitioner, butin favour of the respondents. Therefore, they are not at all usefulhere.21. The bottom line of the learned counsel for thepetitioner is that similarly chargesheeted persons as that of thepetitioner viz., K.T.Venkateswaran, Chief Manager, Alwarpet Branch; Azeez, AGM, predecessor to the petitioner; T.S.Venkateswaran,G.V.Srinivasan, Senior Manager; Sivgurunathan, Chief Manager;N.Balakrishnan, Senior Manager; A.Ravindran, Manager, L.Natarajan, Chief Manager; H.M.Prathiba, Manager; V.S.Madhavan, Senior Manager;B.Subramaniam, DGM Zonal Office and B.Natarajan, AGM Regional Office, were let off with a minor punishment, whereas, in the case of thepetitioner alone, a major punishment is imposed and, hence, there isa discrimination.22. Though the plea of differential treatment has beenraised by the petitioner in the affidavit, in the counter of therespondents, this point of discrimination has not been answered bythe respondents. However, while submitting the written arguments, astand has been taken by the respondents that one R.Sivgurunathan, thethen Chief Manager and N.Balakrishnan, Senior Manager, have retiredfrom service even before the irregularities in the Gemini groupaccounts were detected by the Bank and hence no action was taken bythe Bank. However, they have been chargesheeted by CBI as privateindividuals wherein they have been arrayed as accused. Variouspunishments were awarded to the individuals whose names are mentionedin para 26 depending upon the gravity of misconduct committed bythem. Since the gravity of misconduct committed by the petitionerwarranted the punishment of dismissal, he was imposed the punishmentand he cannot compare himself with the actions taken against others. https://hcservices.ecourts.gov.in/hcservices/

#23. Of course, the respondents have not come out with astatement that there was a punishment in respect of others to such adismissal from service. This is one aspect of differential treatmentshown to the petitioner vis-a-vis other persons, who had committedsimilar irregularities, and it is a matter for concern. During thecourse of argument in all the session, the consistent plea of thepetitioner is that at least some lesser punishment as in the case ofothers ought to have been imposed. 24. Considering the various factors and the manner in whichthe petitioner is involved in the conduct which is contrary to theregulations for which the counsel for the petitioner insistentlypointed out that no officer employee shall, in the performance of hisofficial duties or in the exercise of powers conferred on him, actotherwise than in his best judgment except when he is acting underthe direction of his official superior as per Regulation 3 sub-clause(3) and, as per sub-clause (4), every officer employees shall takeall possible steps to ensure the integrity and devotion to duty ofall persons for the time being under his control and authority, thisCourt holds that in a critical situation, whenever the instructionsare given by the superior officer to his subordinate, it is for thesubordinate to obey and, accordingly, the petitioner has acted as perthe instructions of his official superior. However, the oral anddocumentary evidence could not make his plea as proved to be true. The plea of the petitioner for a similar treatment on par with otheremployees that he ought to have been either allowed to retire fromservice with terminal benefits or with a lesser punishment is thematter for consideration by the authorities concerned. In the givensituation, it is for the authorities to look into the grievance ofthe petitioner if the petitioner approaches them and plead for such aprayer. Therefore, the petitioner can go before the highestauthority, namely, Chairman and Managing Director, first respondentherein, by submitting a representation, in which event, the same maybe looked into by him in accordance with law.25. Writ Petition is dismissed with the above observation.No costs. Sd/ Asst. Registrar //True Copy// Sub. Asst. Registrarabe/dixitTo1.The Chairman and Managing Director,(Reviewing Authority)Indian Bank, Head Office,66, Rajaji Salai, Chennai 600 001. https://hcservices.ecourts.gov.in/hcservices/

#2. The Executive Director (Appellate Authority),Indian Bank,66, Rajaji Salai, Chennai 600 001.3.The General Manager (Disciplinary Authority) 66, Rajaji Salai, Chennai 600 001.4.The Commissioner for DepartmentalInquiries (Inquiring Authority),Satarkata Bhavan A-Block, GPO Complex INA,New Delhi – 110 023.1 cc to Mr.S.Sethuraman , Advocate, Sr.No.503451 cc to M/s.Aiyar & Dolia , Advocate, Sr.No.502952 cc to Mr.S.Sethuraman , Advocate, Sr.No.50275W.P.No.12759 of 2009gv(co)pmk.30.8.2011