N.S. Mohanan v. Indian Overseas Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **THURSDAY, THE 23RD DAY OF FEBRUARY 2017/4TH PHALGUNA, 1938** **WP(C).No. 29621 of 2011 (C) ----------------------------** ## **PETITIONER(S): -------------** **N.S.MOHANAN, ROLL NO.25920, ASSISTANT MANAGER (COMPULSORY RETIRED), INDIAN OVERSEAS BANK, CHANGANACHERRY.** **BY ADVS.SRI.P.RAVINDRAN (SR.) SMT.APARNA RAJAN** ## **RESPONDENT(S):** **--------------** **1. INDIAN OVERSEAS BANK, REP. BY ITS MANAGER, CHANGANACHERRY BRANCH, CHANGANACHERRY - 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.** **R BY SRI.LEO GEORGE,STANDING COUNSEL,INDIAN OVERSEAS BANK** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-02-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29621 of 2011 (C)** ## **APPENDIX** |**PETITIONER(S) EXHIBITS**|**PETITIONER(S) EXHIBITS**| |---|---| |**---------------------**|| |**EXT.P-1**|**TRUE COPY OF THE CHARGE SHEET DATED 23.06.09**| |**EXT.P-2**|**TRUE COPY OF THE REPLY DATED 25.07.09**| |**EXT.P-3**|**TRUE COPY OF THE PROCEEDINGS OF THE PRELIMINARY ENQUIRY**| ||**DATED 25.09.09**| |**EXT.P-4**|**TRUE COPY OF THE PROCEEDINGS DATED 16.04.10**| |**EXT.P-5**|**TRUE COPY OF THE WRITTEN BRIEF SUBMITTED BY THE**| ||**MANAGEMENT DATED 03.07.10**| |**EXT.P-6**|**TRUE COPY OF THE LETTER DATED 17.08.10 ALONG WITH THE**| ||**ENQUIRY REPORT DATED 14.08.10**| |**EXT.P-7**|**TRUE COPY OF THE OBJECTION DATED 03.09.10**| |**EXT.P-8**|**TRUE COPY OF THE ORDER OF THE DISCIPLINARY AUTHORITY**| ||**DATED 27.10.10**| |**EXT.P-9**|**TRUE COPY OF THE MEMORANDUM OF APPEAL DATED 30.11.2010**| |**EXT.P-10**|**TRUE COPY OF THE ORDER DATED 01.02.11**| |**EXT.P-11**|**TRUE COPY OF THE REVIEW PETITION.**| |**EXT.P-12**|**TRUE COPY OF THE ORDER DATED 25.04.11**| |**EXT.P-13**|**TRUE COPY OF THE ORDER DATED 07.03.11**| **RESPONDENTS' EXHIBITS -----------------------** **NIL** **// TRUE COPY //** **P.A. TO JUDGE** ## DEVAN RAMACHANDRAN, J ---------------------------------------------------W.P(C). No. 29621 of 2011 ---------------------------------------------------Dated this the 23[rd] day of February, 2017 ## J U D G M E N T The petitioner was working as an Assistant Manager in the services of the first respondent Bank. While he was so serving certain allegations were raised against him in the nature of misconduct and he was charged sheeted as per Ext. P1. To compress the story but without crippling the foundational facts, the petitioner was found guilty in a domestic enquiry which is confirmed by the disciplinary authority and later by the appellate authority and he was imposed by the punishment of compulsory retirement. The petitioner challenges all these orders in this writ petition on the ground that they are illegal, unlawful and based on no evidence at all. 2. I have heard learned Senior counsel Mr. P. Ravindran assisted by Sreedhar Ravi appearing for the petitioner and Mr. Leo George appearing for the respondents. 3. Ext.P1 is the charge sheet against the petitioner it contains six separate charges, which are compendiously as under : 2 _**W.P(c).29621/2011**_ - a) That he had influenced the senior Manager and got sanctioned six agricultural loans in the name of his wife even if she was not eligible to avail of such loans because she do not have agricultural lands in her name. - b) That the petitioner had lent a sum of Rupees One Lakh to a certain Mr. Selvaraj thus indicating that he had financial dealings with the customer of the Bank in contravention of the disciplinary guidelines of the Bank. - c) That the petitioner had stealthily removed six cheques purchased by the Bank for a concern by name M/s. Raja Shoe Mart whos proprietor is a certain Selvaraj on account of his friendship with the Selvaraj and consequently Mr. Selvaraj obtained undue pecuniary gain - d) That he had availed of private borrowing from other institutions without permission of the Bank which again is a contravention of disciplinary guidelines. - e) That he had influenced the Branch Manager and got sanctioned 15 jewel loans in the name of various people and these loans were closed at the petitioner’s will thereby indicating that he had misused the jewel loan facility of the Bank. - f) That the petitioner’s joint account maintained with his wife show voluminous transaction to the extent of about 22.69 Lakhs and 16.69 3 _**W.P(c).29621/2011**_ Lakhs for the period from 1.4.2004 to 31.1.2007 which are disproportionate to the salary drawn by you and to the known source of income. 4. Based on these allegations, an enquiry was initiated and the enquiry Officer examined two witnesses on the side of the Bank as NW1 and NW2. The examination record of these witnesses have been produced as Ext.P4 in the writ petition. The learned Senior Counsel has taken me specifically to certain statements made by NW1 and NW2 in their cross examination, wherein it would appear that they admit that none of the imputations against the petitioner would have been possible without the knowledge and concurrence of superior officers. In fact certain pointed questions put to NW1 as to whether the imputations against the petitioner could have been done by him without the knowledge of the Branch Manager has been virtually answered to the affirmative. Even though the witnesses say that the petitioner was engaged in all these misconduct, in their cross examination, recorded in page Nos.6, 7, and 10 of the Ext.P4, it is more or less admitted by them that the manager Mr. Venkitachalam was aware that the cheques were missing and that all the cheques that was brought in for 4 _**W.P(c).29621/2011**_ bill discounting or debit bill purchases were duly referred and passed by the supervisory staff. 5. The discussion above cannot be interpreted to mean that I am sitting as an appellate authority over the findings entered into by the enquiry officer. I have referred to this only to enter into a _prima facie_ evaluation as to whether the enquiry has been conducted in compliance with the essential requirements of law. It is now well settled that this Court, acting under Article 226 of the Constitution of India cannot substitute itself to be the competent authority under the rules and regulations but that scrutiny by this Court should be confined to see whether there is sufficient evidence on record or at least such evidence as would be absolutely necessary to enter into a conclusion that the petitioner is guilty or as to whether the principles of justice, equity and fairplay, specially that of natural justice, had been complied with in the enquiry proceedings so that the petitioner cannot be heard to say that any prejudice has been caused to him. This Court is, of course competent to verify on the available evidence and material, if the punishment imposed upon the petitioner is proportionate to the gravity of the offences that has been found against him. 5 _**W.P(c).29621/2011**_ This is the only extent to which I propose to go and no further. 6. As I have already noticed, the enquiry proceeded on the basis of statements given by two witnesses for the Bank. There is nothing on record to show that the petitioner had acted independently, without the knowledge of the Manager or Supervisory staff. At least this is so with respect to charge Nos. (a) and (e) of the imputation of charges. These two charges start by saying that the petitioner has influenced the Managers in obtaining such benefit. Obviously, the insinuation is that the said Managers are also conspirators or co-conspirators to the strategy evolved by the petitioner, if at all it has been done. Going by the merits of these two allegations, it does not say that the petitioner has caused any loss to the Bank. It only says that he has, through a loan availed by his wife and through jewel loans availed in the name of others, obtained financial benefits which he was not entitled to obtain. This is the long and short of these two allegations. However, I must say that examination of NW1 and NW2 would not substantiate this completely but would retain at best a suspicion based on probabilities. 7. As regards charge No.(b) above that he has lend an 6 _**W.P(c).29621/2011**_ amount of Rs. One Lakh to a certain Selvaraj, there is no material or evidence to show that this was done by him for obtaining any undue pecuniary benefit in the nature of interest or such other. It is no doubt admitted by the petitioner that he had made that personal loan to Mr. Selvaraj. The only allegation that could possibly be now sustained against him, under that charge, is that he had lent the money to a customer of a Bank, which is against the disciplinary guidelines. 8. As regards, charge No.(c) relating to the cheques which was allegeldy stealthily removed, it is obvious from the evidence on record that the witnesses admitted that these were also within the knowledge of the Manager. I am not saying for a moment that the petitioner can be completely exonerated. On the contrary, I am of the view that, from the available evidence, his culpability is more or less evident. I am only saying that the petitioner has acted in a particular manner only because of the support he got from the Manager or other staff available in the Bank. It would have been impossible for him to remove these cheques without detection for such a long period of time without such assistance. The evidence on record, especially that in the statements of NW1 and NW2 would 7 _**W.P(c).29621/2011**_ indicate that they were also aware of the complexity of the Manager or other supervisory staff. 9. As regards charge No.(f) above is concerned, the fact that his account showed large amounts of money has been taken by the Bank to indicate that the petitioneor had other sources of income. However, the examination of the petitioner could not establish any such suspicion because he asserted, as is seen from page No. 7 of Ext.P4, that he had received certain amounts under various legal heads and that it is those amounts which were found in his account thereby attempting to dispel the suspicion that he had disproportionate amounts in his custody. 10. This in essence is the nature of evidence on record. These materials and evidence have been considered by the enquiry authority in concluding the guilt of the petitioner as is discernible from Ext.P6 report. 11. With respect to charge No.(a), the enquiry officer concludes that the petitioner was the beneficiary of the loans availed by his wife since it was credited to their joint account but for no other reason. He has also recorded that the petitioner’s wife has no agricultural land at all. Therefore, the 8 _**W.P(c).29621/2011**_ fact that she had availed of a loan would itself be a case of misconduct on the part of the petitioner because he is her husband, concluded the enquiry officer. 12. As far as charge No.(b) is concerned, the enquiry officer entered a finding that the petitioner had lend a sum of Rupees One Lakh to Mr. Selvaraj and that this by itself could amount to contravention of the guidelines of the Bank. 13. With respect to charge No.(c), the enquiry officer has considered the matter in greater detail. However, he has concluded the guilt of the petitioner, because according to him, the petitioner had not brought any evidence to show that he had not removed the cheques. This is a case where the enquiry officer requires the petitioner to show negative evidence on the assumption that there is a rebuttable presumption against the petitioner based on the imputation made by the Bank. The enquiry officer also found that these cheques had not be sent to the drawer Branch namely the Palakkad Branch and that an alleged confession made by Mr. Selvaraj to NW1 and NW2 would amount to the acceptance of the guilt by the petitioner. I am not sure that these conclusions could ever be countenanced legally, if it was done by a court of 9 _**W.P(c).29621/2011**_ law. However, since this is only a process of a disciplinary enquiry I am sure that strict rules of procedure or evidence may not be applicable. But this does not mean that the enquiry officer can conclude even in the absence of any evidence. Lest I be misconstrued, I am not maintaining for a moment that the petitioner is completely beyond guilt. I am saying that the gravity of the imputation has not been completely proved based on such evidence because I am also _prima facie_ of the view that the petitioner may have some role in the allegations made against him. 14. As regards the other imputations are concerned, the fact that the petitioner had borrowed from other financial institutions and that his account had larger amounts than his known source of income was taken by the enquiry officer to be factors without any requirement of further evidence, to prove misconduct of the petitioner in terms of the service regulations. 15. It is interesting that the enquiry officer has also found that the petitioner had influenced the Managers even though such managers were never brought on record, never examined and never given an opportunity to prove otherwise. Equally interesting is a fact that the above named Mr. Selvaraj who 10 _**W.P(c).29621/2011**_ appears to be shown as a necessary co-conspirator along with the petitioner in most of these charges, was also never asked to be on record, never named as a witness, examined, or enquired into even though it is obvious from the records and from the statements of NW1 and NW2 that they had taken his statement, which according to them, showed the culpability of the petitioner. In the absence of Mr. Selvaraj being examined during the enquiry proceedings, it would be of no avail that NW1 and NW2, who were officers of the Bank, had talked to him and recorded his statement during their enquiry or their investigation, which is not acceptable even in the course of a disciplinary enquiry. In any event these statements have also not been placed in the enquiry proceedings before the enquiry officer so as to have enabled him totake a call on. In the absence of all these, the fact that the enquiry officer has found that the petitioner is guilty of all charges as leveled against him would, in my opinion, lead to an inference that there was no proper application of mind. It doesn’t really matter because the enquiry officer is only a fact finding authority. What then I will have to see is whether the Disciplinary Authority and the Appellate Authority had considered the matter in the right 11 _**W.P(c).29621/2011**_ perspective. 16. I see that the orders of the Disciplinary Authority and the Appellate Authority are Ext.P8 and Ext.P10 respectively. In Ext.P8, the Disciplinary Authority has disposed of the matter virtually saying that the contentions of the petitioner, contrary to the enquiry report, is not acceptable. The said Authority had relied up on the evidence recorded in the enquiry report and he also records that there is material in the evidence to show that Mr. Selvaraj talked to the petitioner over phone in the presence of NW1 and NW2 and that he had assured that the cheques will be handed over next day. It is amazing that these statements find its way in Ext.P8 because these statements appear to be part of the investigation report made by NW1 and NW2. Obviously this report could have found some credibility only if Mr. Selvaraj has been brought in as a witness and examined and then his statements evaluated for credibility. That had not been done. Any reference to or admissions or confessions made by Selvaraj would not obviously bind or confine the petitioner to the realm of culpability. 17. The final order of the Appellate Authority is much more laconic which does not really appreciate the evidence but 12 _**W.P(c).29621/2011**_ merely affirms the order of the Disciplinary Authority. Obviously, the Appellate Authority was convinced that the Disciplinary Authority had acted well within its jurisdiction and therefore, found no reason to re-appreciate the evidence or to re-consider the contentions. 18. The above is the factual scenario, within the domain of which, this Court will have to decide whether the proceeding will have to be concluded to have been done within the parameters available for being supported under the laws relating to disciplinary enquiry and procedure. I have no doubt and as has been indicated by me earlier that in matters of domestic enquiry and disciplinary proceedings, jurisdiction of this court is extremely constricted. Judicial review in administrative action and its ambit has been considered by the Hon’ble Supreme Court in several judgments including **Tata cellular v. Union of India [(1994) 6 SCC 651], Shalini Sony v. Union of India [(1980) 4 SCC 544]** and in **Gazi Saduddin v. State of Maharashtra [2003 (7) SCC 330]** The Hon'ble Supreme Court has declared the law without any leverage for doubt that this Court cannot operate or function as an Appellate Court; that this Court cannot sit in judgment over 13 _**W.P(c).29621/2011**_ the wisdom of the competent Authority; that this Court cannot appreciate evidence as if it is a criminal proceeding and that this Court's jurisdiction will be confined to see if there is any evidence on record, if the principles of natural justice has been complied with and if the administrator had acted in compliance with the principles of justice, equity and fairness. I will have to consider the relief that can be granted to the petitioner from this touch stone. 19. As I have already noticed, this is not a case where there is no evidence at all. There is certainly evidence including the investigation reports of NW1 and NW2. The material on record would, to a substantial degree show the culpability of the petitioner. I have no doubt about it. I am only concerned, even assuming that all the charges are proved against the petitioner, that the punishment that has been imposed on the petitioner would be proportionate to the gravity of offences found against him. Generally this Court does not interfere or entertain contests regarding punishments imposed unless it is so outrageous in its logic that no sensible person could have arrived at. This is what is known as the Wednesbury principles enunciated in **Associated Provincial** 14 _**W.P(c).29621/2011**_ ## **Picture Houses Ltd. vs. Wednesbury Corporation [1947** **(2) ALLER 680]** . Therefore, my inquiry would be confined to see whether guilt of the petitioner as could have been seen from the materials available, would justify or support the punishment imposed against him. 20. The learned Standing Counsel for the Bank supports the punishment and the enquiry proceedings against the petitioner on various contentions. He says that the petitioner has been habitually lending money to others and thus has been carrying on virtually a parallel banking institution. He says that the petitioner had, through the aegis of his wife, obtained loans, which is used by him for the purpose of liquidation of other loans availed by him, which is discernible from the Statement of Accounts produced by the Bank before the Enquiry Authority. He further says that the question as to whether the petitioner had complicity in the removal of the cheques is no longer relevant because it is virtually admitted by him and Mr. Selvaraj that it was so done by him. Learned standing counsel further goes on to say that the other allegations that he had borrowed money from other sources and that he had large amounts of money in his account which 15 _**W.P(c).29621/2011**_ is undisclosed would be against the disciplinary guidelines of the Bank and against the discipline mandated from an officer of the bank. In short, he asserts that the bank has no confidence in him and he cannot be allowed to continue in the office since the bank is in charge and custody of public money, which requires a lot of trust leading to good fiduciary relationship with their customers, which will be imperiled if the petitioner is allowed to continue in the services of the Bank. 21. I am, on a summation of all the aspects including the facts, evidence, reports and submissions recorded above, of the view that this is not a case where the petitioner can be given the benefit of an exculpatory order. I cannot find that the petitioner is not involved. I cannot see that the petitioner was completely innocent of the charges. On the contrary, I am of the view that he was involved but to what extent is the question. There is no doubt that he had violated the disciplinary guidelines of the bank by borrowing from other sources and by lending to persons who are customers of the bank without the specific permission of the Bank. The only question is whether this would have visited him with highest punishment. As regards the allegation that he had removed 16 _**W.P(c).29621/2011**_ cheques are concerned, obviously, that would have been sufficient to maintain the punishment of compulsory removal as has been done against him. I would have normally confirmed that and allowed the petitioner to suffer the punishment. However, there is one intervening fact that has been brought to my notice through a document, appended to this writ petition as Exhibit-P13 which shows that the Manager and members of the supervisory staff, who were found to be co-conspirators or complicit in the wrong doings of the petitioner, have been given a much lesser punishment; the manager having been given only a punishment of reduction of one stage of his pay. This is completely incredible because as is obvious from the charges against the petitioner, the Manager or Senior Manager as the case may be, are alleged to have done certain things at his influence. If that be so, they should have been treated on equal scale and punished with similar detriment. However, in this case, this has not been done. The petitioner has been given the severest punishment of compulsory retirement, whereas the manager has been punished only by reduction of a stage of pay scale. This, according to me is completely unviable and in violation of the 17 _**W.P(c).29621/2011**_ principles of fairness, equity, justice and is certainly discriminatory to the petitioner. I am fully conscious that I cannot say that the petitioner should get the benefit of a wrong that has been committed by the Bank. However, when it comes to punishments that are imposed, it is only justified that the petitioner be also given treatment similar to that which is meted out to the co-conspirators. For this reason alone , I am of the view that the Bank should have a re-look at the punishment imposed on the petitioner. 22. In such circumstances, I quash Ext. P10 order of the Appellate Authority so as to enable him to make an independent assessment and evaluation as to whether the petitioner can be given a lessor punishment, taking into account the fact that many of the charges against him may not be grave enough to warrant the highest punishment. The Appellate Authority should also take cognizance of the fact that the managers have been given a lessor punishment. The petitioner has to be sufficiently punished but not by the ultimate detriment but by something lesser. I make it clear that I am not concluding in any manner on the merits of the entitlement of the petitioner to a lesser punishment and I 18 _**W.P(c).29621/2011**_ record that I have not in any manner entered into any enquiry as to such issues. The observations that have been made by me herein are only preliminary and _prima facie_ for the purpose of my conclusions in this judgment and is not intented to constrain or trammel the Appellate Authority who is at liberty to enter into an independent view, based on the relevant inputs and factors. 23. In such circumstances, I order this writ petition directing the Appellate Authority, namely the third respondent to reconsider Ext.P9 appeal of the petitioner in terms of law and on the material available and by adverting to the observations of this court but not being in any manner constrained by it. The writ petition is ordered as above. In the facts and circumstances of the case, I make no order as to costs and the parties are directed to suffer their respective costs. Sd/DEVAN RAMACHANDRAN, JUDGE sou.14/3.