N.S. Mohanan v. Indian Overseas Bank

W.P.(C).No.5250 of 2021 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 18[TH] DAY OF JANUARY 2023 / 28TH POUSHA, 1944 WP(C) NO. 5250 OF 2021** ## **PETITIONER:** N.S.MOHANAN AGED 65 YEARS S/O.SANKARAN, NECKILKATTUKUDY, ALLAPRA P.O., PERUMBAVOOR-683 556, (ROLL NO.25920 ASSISTANT MANAGER (COMPULSORY RETIRED), INDIAN OVERSEAS BANK, CHENGANACHERRY. BY ADV S.ANEESH ## **RESPONDENTS:** 1 INDIAN OVERSEAS BANK REPRESENTED BY ITS MANAGER, CHENGANACHERRY BRANCH, CHENGANACHERRY-686 101. 2 GENERAL MANAGER, DISCIPLINARY AUTHORITY, INDIAN OVERSEAS BANK, CENTRAL OFFICE, 763, ANNA SALAI, CHENNAI-600 002. 3 EXECUTIVE DIRECTOR, APPELLATE AUTHORITY, INDIAN OVERSEAS BANK, CENTRAL OFFICE, 763, ANNA SALAI, CHENNAI-600 002. 4 CHAIRMAN AND MANAGING DIRECTOR, REVIEWING AUTHORITY, INDIAN OVERSEAS BANK, CENTRAL OFFICE, 763, ANNA SALAI, CHENNAI-600 002. BY ADVS. SRI.SUNIL SHANKER SMT.VIDYA GANGADHARAN THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 6.12.2022, THE COURT ON 18.01.2023 DELIVERED THE FOLLOWING:- W.P.(C).No.5250 of 2021 2 ## **ANU SIVARAMAN, J.** **= = = = = = = = = = = = = = =** ## **W.P.(c).No.5250 of 2021** **= = = = = = = = = = = = = = = = Dated this the 18[th] day of January, 2023** ## **JUDGMENT** ## 1.This writ petition is filed with the following prayers: “A. A writ of certiorari or any other appropriate writ order or direction quashing Exhibit P8, P10, P12 and P18 by holding that the said proceedings, findings and punishment are illegal and against the principles of equality. B. A writ of mandamus or any other appropriate writ, order or direction declaring that the compulsory retirement imposed of the petitioner is unconstitutional and further hold that he is entitled to continue in service till attaining to age of superannuation and he is entitled for all consequential benefits of his service as if he is continuing in service of the 1[st] respondent without break. B(i). To declare that the evidence relied on by the respondent against the petitioner is unreliable and that the disciplinary proceeding initiated against the petitioner is vitiated by unfairness.” ## 2. Heard the learned counsel for the petitioner and the learned ## counsel appearing for the respondents. W.P.(C).No.5250 of 2021 3 3. It is submitted by the learned counsel for the petitioner that the petitioner, while working as Assistant Manager was inflicted with the punishment of compulsory retirement. This order was challenged before the appellate authority without success. A review too was dismissed. Petitioner in the above circumstances approached this Court in W.P.C.No.29621/2011. This Court allowed the writ petition, quashing the order of the revisional and appellate authority and remanded the matter to the appellate authority to pass fresh orders, after finding that the reliance placed on certain confession made by a customer which had not been properly proceed in the enquiry to find the petitioner guilty were unsustainable. This Court was pleased to order in view of the fact the superior officer, who was actually culpable in the alleged irregularity, was inflicted with a lesser punishment. But the appellate authority again passed the same order, which resulted in approaching this Court again by the petitioner by filing W.P.(C).No.38899 of 2017. This Court directed the reconsideration of the appeal. Thereafter, in Exhibit P18 order the respondent reiterated its stand, which is under challenge herein. W.P.(C).No.5250 of 2021 4 4.It is contended by the learned counsel for the petitioner, quite vehemently, that Ext.P14 judgment specifically found that the conclusion of the guilt of the petitioner, on the ground that he had removed cheques presented for discounting, which was based solely on a confession by the customer, which was not proved by any means known to law in the enquiry by itself, cannot be the reason for refusing to reconsider the gravity of the penalty awarded to the petitioner. It is contended that by the impugned order, the request for a lesser punishment not unlike the punishment awarded to the manager has been rejected on the sole ground that the petitioner was responsible for removing the cheques from the bank. It is stated that the said fact never having been proved, it could not have been relied on, to reject the request of the petitioner for a less serious punishment. Learned counsel for the petitioner places reliance on the decisions of the Apex Court reported in **Moni Shankar v.Union of India and another** [2008 KHC 4399] and **Roop Singh Negi v. Punjab National Bank and others** [2009 KHC 4143] to contend that provisions of the Evidence W.P.(C).No.5250 of 2021 5 Act may not be applicable in a departmental proceeding but the principles of natural justice are to be complied. 5.Detailed counter affidavits have been placed on record by the respondents wherein it is contended that a reading of paragraph 19 of Ext P14 judgment would itself show that the contentions of the petitioner with regard to the findings in this enquiry were not accepted by this Court. This Court had only directed the consideration of the appeal which stood rejected. In Ext.P16 judgment also, this aspect was specifically considered. The bank took up the matter in appeal and by Ext.P17 judgment, the writ appeal was dismissed and the direction of the learned single Judge in Ext P16 was directed to be complied with. It is thereafter that Ext. P18 order has been passed. It appears from Ext.P18 that the specific contention of the petitioner was considered in detail. ## 6.The relevant portion of Ext.P18 reads as follows:- “It is seen that the charges proved against Mr.H. Venkitachalam is procedural in nature. However, one of the proved charges against you is that you had stealthily removed the cheques purchased by the W.P.(C).No.5250 of 2021 6 Branch. It is seen that branch had purchased 6 cheques for M/s.Raja Shoe Mart and its proprietor Mr.M Selvaraj. It is observed that you had admitted the fact that you had financial dealings with Mr.M Selvaraj. lt is well proved by the documents on record and the deposition of the witness that you had stealthily removed the cheques to help Mr.M Selvaraj. You had not submitted any additional evidence to disprove the charge. Thus, your act of removal of cheque with mala fide intention which had resulted in Bank losing confidence in you inasmuch as you had removed the cheques. The said proved charge itself warrants to impose you the penalty of “Compulsory Retirement”. However, the charge proved against Mr.H.Venkatachalam is only that he had purchased the cheques exceeding his discretionary power. After analysing the nature of proved charges, I am of the opinion that the charges proved against Sri.H Venkatachalam is procedural in nature for which he was imposed the penalty as mentioned above. However, the charges proved against you involved the act of removal of cheques and hence cannot be considered on the same yardstick as breach of trust is involved in respect of the charges proveg against you. It is seen that you had breached the trust reposed by the Bank in you. The bank has lost the confidence reposed on you due to your acts contrary to what was expected of you. Hence, continuance of your service would have been prejudicial to the interest of the Bank. In such event, punishment of “Compulsory Retirement" from service was proper and justifiable. 1 concur with the Disciplinary Authority's Order of "Compulsory Retirement" which is most judicious and justified. I see no reason to W.P.(C).No.5250 of 2021 7 interfere with the Order of the Disciplinary Authority. Hence, I confirm the order of Disciplinary Authority awarding you the penalty of “Compulsory Retirement" in terms of Regulation 4(h) of Indian Overseas Bank Officer Employees’ (Discipline and Appeal) Regulations 1976 as amended up to date. Your Appeal therefore, stands dismissed. “ 7. Having considered the contentions advanced, I notice that the specific question whether the petitioner's services could be continued on the basis of the charges proved against him has been considered in Ext.P18. The contention of the petitioner that the Senior Manager had been given only a relatively minor punishment has also been specifically adverted to and considered in Exhibit P18. The respondents also state loss of confidence in the petitioner as a reason for rejecting the request for a lesser punishment. - 8.In Exhibit P14 judgment, this Court had found that in the absence of Mr.Selvaraj being examined in the enquiry proceedings, the facts stated by him to the officers of the Bank could not have been relied upon. However, at paragraph 19 of the judgment, this Court has held that this is not a case of no W.P.(C).No.5250 of 2021 8 evidence at all and that the material on record would, to a substantial degree show the culpability of the petitioner. This Court had also held that the inquiry in judicial review would be confined to see whether guilt of the petitioner as could have been seen from materials available would justify or support the punishment imposed against him. On the materials placed on record, this Court in paragraph 21 of Exhibit P14 judgment had held that the petitioner's guilt stood proved and the only question is whether the guilt as proved would have visited him with the highest punishment. The only question which was directed to be considered was with regard to the punishment imposed on the petitioner. - 9.In the above factual situation, I am of the opinion that the contention raised by the petitioner that Ext.P18 order is vitiated by want of application of mind cannot be accepted. I am of the opinion that the consideration of the appeal, as directed in Ext.P14 judgment, has now being done by the respondents. In the light of the fact that Ext.P14 judgment of this Court has become final and no challenge was raised to the 9 W.P.(C).No.5250 of 2021 observations therein, especially at paragraph 19 thereof, the petitioner is not entitled to the relief as sought for. The writ petition, therefore, fails and the same is accordingly dismissed. **==> picture [25 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.5250 of 2021 10 ## **APPENDIX OF WP(C) 5250/2021** PETITIONER EXHIBITS - EXHIBIT P1 TRUE COPY OF THE CHARGE SHEET DATED 23.06.2009 ISSUED BY 2ND RESPONDENT TO THE PETITIONER. - EXHIBIT P2 TRUE COPY OF THE REPLY DATED 25.07.09 GIVEN BY THE PETITIONER TO THE 2ND RESPONDENT. - EXHIBIT P3 TRUE COPY OF THE PROCEEDINGS THE PRELIMINARY ENQUIRY DATED 15.09.2009 ON THE CHARGE SHEET AGAINST THE PETITIONER. - EXHIBIT P4 A TRUE COPY OF THE PROCEEDINGS DATED 16.04.2010 ON THE CHARGE SHEET AGAINST THE PETITIONER. - EXHIBIT P5 TRUE COPY OF THE WRITTEN BRIEF SUBMITTED BY THE MANAGEMENT DATED 03.07.2010. - EXHIBIT P6 TRUE COPY OF THE LETTER DATED 17.08.2010 OF 2ND RESPONDENT ALONG WITH THE INQUIRY REPORT DATED 14.08.2010 AGAINST THE PETITIONER. - EXHIBIT P7 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER AGAINST THE ENQUIRY REPORT DATED 03.09.10. - EXHIBIT P8 TRUE COPY OF THE ORDER AGAINST THE PETITIONER OF THE DISCIPLINARY AUTHORITY DATED 27.10.2010. - EXHIBIT P9 TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 30.11.2010 FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY. W.P.(C).No.5250 of 2021 11 EXHIBIT P10 A TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY R3 DATED 01.02.11. - EXHIBIT P11 TRUE COPY OF THE REVIEW PETITION BEFORE THE CHAIRMAN R4 BY THE PETITIONER. - EXHIBIT P12 A TRUE COPY OF THE ORDER IN THE REVIEW PETITION BY THE CHAIRMAN AND MANAGING DIRECTOR R4 DATED 25.04.2011. - EXHIBIT P13 TRUE COPY OF THE ORDER DATED 07.03.2011 OF R3. EXHIBIT P14 TRUE COPY OF THE JUDGMENT IN WPC NO.29621/2011 DATED 23.02.2017. - EXHIBIT P15 TRUE COPY OF THE ORDER OF THE APPELLATE AUTHORITY R3 DATED 10.10.2017. - EXHIBIT P16 A TRUE COPY OF THE JUDGMENT DATED 26.06.2018 IN WPC NO.38899/2017 OF THIS HON'BLE COURT. - EXHIBIT P17 A TRUE COPY OF THE JUDGMENT IN WA NO.2346/2018 DATED 05.11.2020 OF THIS HON'BLE COURT. EXHIBIT P18 A TRUE COPY OF THE ORDER DATED 30.01.2021 OF THE 3RD RESPONDENT. TRUE COPY PS TO JUDGE