C. Sethumadhavan v. State Bank of India

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH THURSDAY, THE 5TH DAY OF APRIL 2018 / 15TH CHAITHRA, 1940 **WA.No. 267 of 2018 IN WPC. 38546/2010** AGAINST THE JUDGMENT IN WP(C) 38546/2010 of HIGH COURT OF KERALA DATED 14-08-2017 ## **APPELLANT** /PETITIONER C.SETHUMADHAVAN SON OF MADHAVAN KUTTY NAIR,AGED 54 YEARS, MMG S III (UNDER SUSPENSION),STATE BANK OF INDIA, ZONAL OFFICE,ERNAKULAM, RESIDING AT"MIDHILA",MANAVAZHY, CHERPLACHERY-679503. BY ADVS.SRI.V.A.MUHAMMED SRI.M.SAJJAD ## **RESPONDENT** /RESPONDENT: THE STATE BANK OF INDIA REPRESENTED BY ITS MANAGING DIRECTOR, SBI CORPORATE CENTRE,MUMBAI-400021. BY SRI.P.V.SURENDRANATH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 05-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------W.A.No.267 of 2018 -------------------------------Dated 5[th] April, 2018 ## **JUDGMENT** ## **Ravikumar, J.** This appeal arises from the judgment in W.P.(C)No.38546 of 2010. The writ petition was filed challenging the order passed by the disciplinary authority and confirmed by the appellate authority in different disciplinary proceedings initiated against the appellantpetitioner. The appellant was chargesheeted under Ext.P1. In fact, 19 charges were levelled against him. The disciplinary proceedings thus initiated against him based on those allegations culminated in Ext.P7 order dated 11.7.2008 whereby he was imposed with penalty of reduction to a lower scale of pay by 5 stages for a period of three years, with further direction that he would not earn increments during the period of such reduction and on the expiry of such period the reduction would have the effect of postponement of future increments. The appellant preferred appeal against the said order. The appellate authority as per Ext.P9 order dated 31.3.2010 confirmed the order of the disciplinary authority and dismissed the appeal. The learned Single Judge as per the impugned judgment, declined to interfere with those W.A.No.267 of 2018 2 orders and consequently dismissed the writ petition. 2. The appellant was working as Branch Manager in the State Bank of India. The allegations which led to the initiation of disciplinary proceedings involved in this case pertain to the period from June, 2004 to October, 2005. He was then working as Branch Manager at Pattambi Branch. The articles of charge is Ext.P1 and its full text is produced by the first respondent as Ext.R1(a). The imputations of misconduct pertain to commission of irregularities/lapses, in the sanction/documentation/disbursement/conduct/follow up in respect of the loan accounts specifically mentioned therein. Ext.P5 is the report of the Enquiry Officer. As per the enquiry report, he arrived at specific conclusions and findings in respect of various charges. Charge No.1 pertains to the failure to submit Control Return in respect of certain housing term loans mentioned therein. They were held as not proved. Charge No.2 relates to certain other loans and the allegation was that disbursements were effected without conducting site inspections and without obtaining stage wise certificates and completion certificates of buildings. Out of such 16 accounts under the aforesaid charge in respect of loan accounts items (ii) to (vii), (ix) and (x) were held as partially proved and among the rest of the items thereunder except those pertaining to A/C.Nos.10585995133 (item No.(i)) and W.A.No.267 of 2018 3 10585997503 (item No.(xvi)) all the others were held as proved. Item Nos.(i) and (xvi) were held as not proved. Charge No.3 relates to irregularities/lapses in respect of various loan accounts specifically mentioned under the said charge. Amongst items (i) to (xiii) under the said charge except item (xi) pertaining to A/C.No.10585997987 all the other charges were held as partially proved. The allegations in charge Nos.4, 5,10, 13 and 18 were not proved. The allegations levelled under the other charges pertaining to various loan accounts, were held either as proved or as partially proved. On receipt of the report, the disciplinary authority accepted the findings of the Enquiry Officer in respect of all charges held as proved and at the same time, in respect of certain charges which were held as not proved he declined to concur with the findings. Consequently, show cause notice was issued to the appellant requiring his explanation as why those charges held as not proved by the Enquiry Officer also should not be held as proved. Pursuant to the receipt of the same the appellant submitted his explanation. Evidently, it is thereafter that the disciplinary authority as per Ext.P7 order imposed the penalty as aforesaid. As noticed hereinbefore, after considering the appeal preferred by the appellant against Ext.P7 order the appellate authority as per Ext.P9 order dated 31.3.2010 confirmed Ext.P7 order of the disciplinary authority. The W.A.No.267 of 2018 4 learned Single Judge evidently, considered the various contentions made by the appellant herein for the purpose of canvassing the position that the findings of the enquiry officer are perverse and the impugned orders passed by the disciplinary and appellate authorities are illegal owing to the failure to consider and appreciate his valid contentions in the light of the dictum laid down by the Hon'ble Apex Court in **Union of India and others** v. **P.Gunasekaran ((2015) 2 SCC 610)** . In the said decision, the Hon'ble Apex Court held that in exercise of the power under Article 226 of the Constitution of India, the court could not venture into re-appreciation of evidence or interfere with the conclusions of the enquiry proceedings if there are some legal evidence to prove the misconduct. The learned Single Judge took note of the fact that the Enquiry Officer adverted to all the materials and arrived at specific findings in respect of each and every charge specifically raised against the appellant. As noticed hereinbefore, the charges were levelled against the appellant for having committed irregularities/ lapses, in sanctioning of housing term loans/their documentation/ disbursement /conduct/failure to follow-up properly in respect of such sanctioned loans. The charges levelled against the appellant and the enquiry report as also findings of the disciplinary authority would reveal that such commission of misconduct alleged in respect of large number W.A.No.267 of 2018 5 of loan accounts except in relation to a few accounts, were found as proved or partially proved. Evidently, 68 documents were marked and three witnesses were examined in the disciplinary proceedings. On considering the documentary as also the oral evidence and the enquiry report the disciplinary authority arrived at the conclusion that the appellant who was working as the Branch Manager had committed serious lapses and irregularities in respect of various loan accounts mentioned in the chargesheet as held by the Enquiry Officer. Taking into account the gravity of the proven charges he handed down the penalty of reduction to a lower stage in the time scale of pay by five stages for a period of three years with further consequences specifically mentioned thereunder. The appellate authority did not find any illegality or perverseness in the findings of the disciplinary authority and furthermore, did not find any material deviation of procedures while dismissing the appeal. A perusal of the grounds raised in the writ petition as also in this appeal would reveal that essentially the contention of the appellant is that the findings of the enquiry officer are perverse and the perverseness in the findings were not properly taken into account by the disciplinary authority and the said lapses on the part of the disciplinary authority were not taken seriously by the appellate authority. W.A.No.267 of 2018 6 3. It is the further contention of the appellant that no specific reason has been assigned by the disciplinary authority for differing from the findings of the Enquiry Officer. There is violation of principles of natural justice, it is further contended. It is also contended that being a recipient of so many certificates and awards for creditable performance, he ought not to have been punished for such charges held as proved even if there is evidence to prove such charges especially owing to the absence of any previous, dubious history. Disproportionality of the punishment with the gravity of proven charges has also been assigned as a reason to challenge the orders of the authorities. The learned Single Judge considered those contentions, but entered into a finding that the appellant herein had failed to establish the contention of violation of principles of natural justice and had also failed in establishing that there is procedural illegality or irregularity. The learned Single Judge did not find any reason whatsoever for interfering with such authorities. 4. True that, Ext.R1 (d) would reveal that on findings on certain charges, the disciplinary authority differ from the findings of the Enquiry Officer. But, the said document would reveal that the reason for such disagreement have been specifically mentioned in Ext.R(1)(d) itself and evidently, it was communicated to the appellant. He was also W.A.No.267 of 2018 7 afforded with an opportunity to explain as to why a deviation from the findings of the Enquiry Officer on such points should not be taken. It is also relevant to note that the enquiry report was served on the appellant and on its receipt, he had also submitted his explanation. It is, after affording such opportunities that the disciplinary authority passed Ext.P7 order handing down the aforementioned penalty as imposed on the appellant. Though the appellant had raised the contention that the principles of natural justice were violated, evidently, he had failed to establish the said contention. It is also to be noted that though he got a case that the Enquiry Officer as also the Disciplinary Authority had committed procedural irregularity, the appellant had failed to establish the said contention. What are those procedural irregularities? As held by the learned Single Judge, the appellant had failed to bring them out and to prove them. It is, in the said circumstances, that the decision of the Hon'ble Apex Court in **Gunasekharan's** case ( _supra_ ), assumes relevance. Going by the said decision, interference with disciplinary proceedings is permissible only in cases, where there is perversity. Essentially, it is for the appellant to establish that the orders are infected with perversity. As noticed hereinbefore, despite the contention that the order is infected with violation of the principles of natural justice and also failure to adhere to W.A.No.267 of 2018 8 the prescribed procedures, the appellant had failed to establish such contentions. True, that the appellant had a case that the evidence on record were not properly appreciated by the Enquiry Officer and the failure on the part of the Enquiry Officer was not properly taken into account by the disciplinary authority. A perusal of grounds (a) to (j) raised in the appeal would reveal that apart from making such vague contentions, no specific instances were brought out by the appellant so as to persuade us to interfere with the impugned orders on the ground that there is utter perverse appreciation of the evidence. It is to be noted that in the case on hand, the disciplinary authority appreciated the evidence on record and arrived at a conclusion that certain charges were proved against the appellant and certain other charges were partly proved. True that certain other charges, specifically mentioned hereinbefore, were also proved as or held as not proved. Wherever the disciplinary authority differs from the findings and conclusions of the Enquiry Officer, he assigned his own reasons for such disagreement specifically in Ext.R1(d) and obviously the appellant was offered with an opportunity to give explanation as to why such a view ought not to be taken before taking a decision. The Appellate Authority had considered all such contentions raised by the appellant herein. A perusal of Ext.P9 order would reveal that the Appellate Authority found no reason to W.A.No.267 of 2018 9 interfere with the factual findings and the conclusions made by the disciplinary authority for the purpose of imposing the aforementioned penalty on the appellant. The learned Single Judge had also considered such aspects. Thus, it is evident that at three stages the appellant's contentions were considered. In such circumstances and also in the light of **Gunasekharan's** case ( _supra_ ), we do not find any reason to reappreciate the evidence to consider whether a different conclusion could be arrived at. If at all another view is possible, based on the evidence on record, certainly there cannot be a reason to interfere with the orders and as noticed hereinbefore, an interference with the orders passed in disciplinary proceedings is permissible only if the conclusions arrived at were totally perverse. Grounds (a) to (j) did not bring out any perverse appreciation of evidence or that the conclusions were arrived at by the authorities below against the weight of evidence. The appellant had not produced the explanation submitted by him pursuant to the receipt of Enquiry report. A perusal of Ext.P8 appeal would reveal that he had raised certain grounds. At the same time, it is evident from Ext.P9 order that each and every contention raised by the appellant herein in Ext.P8 appeal were considered by the Appellate Authority. There can be no doubt with respect to the position that in disciplinary proceedings the standard of proof is only preponderance of W.A.No.267 of 2018 10 probability. Hence, if some evidence is available to establish the charge, there will be no scope for interfering with the findings in disciplinary proceedings. It is after carefully examining the materials on record that the Appellate Authority and the learned Single Judge held that the disciplinary authority entered into findings that persuaded him to impose the aforementioned penalty on careful consideration of evidence on record as also the contention of the appellant requires no interference. Since the appellant had failed to bring forth any specific perversity or fatal procedural lapse, we do not find any reason to interfere with the impugned judgment. The next question to be considered is whether there is any substance in the contention of the appellant that the punishment imposed is disproportionate to the proved charges. As noticed herein before, the various charges levelled against the appellant pertain to commission of irregularities/lapses in sanctioning housing term loans, the documentation/disbursement conduct and failure to follow up properly the loan accounts. The appellant had committed such irregularities. The Irregularities held as proved while he was discharging the duty as a Branch Manager of a Bank. The number of instances referred to in the relevant documents would tend us to hold that the contention of the appellant, that the penalty imposed is disproportionate to the charges proved cannot be W.A.No.267 of 2018 11 upheld. It is also to be noted that it is only when the punishment imposed is shockingly disproportionate to the proven charges an interference is permissible. Since the appellant had failed to bring out such a case, we do not find any reason to uphold the said contentions. In short, in the light of the position obtained in this case and in the light of the decision of the Apex Court in **Gunasekharan's** case ( _supra_ ), we do not find any reason to interfere with the judgment of the learned Single Judge. Consequently, this appeal is liable to fail and accordingly is dismissed. Sd/- **Judge** **C.T.RAVIKUMAR** Sd/- **MARY JOSEPH Judge** TKS