T.S. Balaswamy Pillai v Union Bank of India and Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR. JUSTICE AMIT RAWAL`** ## **`FRIDAY, THE 17[TH] DAY OF MARCH 2023 / 26TH PHALGUNA, 1944`** ## **`WP(C) NO. 5100 OF 2013`** ## **`PETITIONER:`** ``` T.S.BALASWAMY PILLAI, ANJALY, HOUSE NO.34/2114 B, TP ROAD, EDAPPALLY, KOCHI-24. ``` ``` BY ADV ``` ``` SRI.P.RAMAKRISHNAN ``` ## **`RESPONDENTS:`** ``` 1UNION BANK OF INDIA, CENTRAL OFFICE, MUMBAI-400 021, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR. 2GENERAL MANAGER (PERSONNEL), DEPARTMENT OF PERSONNEL INDUSRIAL RELATIONS DIVISION, UNION BANK OF INDIA, CENTRAL OFFICE, MUMBAI, PIN:400 021. 3THE EXECUTIVE DIRECTOR, UNION BANK OF INDIA, CENTRAL OFFICER, MUMBAI, PIN:400 021. 4THE CHAIRMAN MANAGING DIRECTOR, UNION BANK OF INDIA, CENTRAL OFFICE, MUMBAI, PIN:400 021. BY ADV SRI.A.S.P.KURUP, SC, UBI SRI.SACHITH ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 17.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` `WP(C) NO. 5100 OF 2013 -` 2 `-` ## **`JUDGMENT`** Orders dated 17.08.2010 Ext.P6 dismissing the petitioner from service of the Bank, Ext.P8 dated 05.07.2011 of the Disciplinary Authority dismissing the appeal and order dated 09.03.2012 Ext.P10 dismissing the Review Petition are under challenge in the present writ petition. 2. Petitioner joined the service of the Bank as Clerk/Cashier in the year 1974, promoted to the category of Officer in the year 1981 and successful in achieving the post of Chief Manager in the Regional Office of the Bank, Chennai. On the basis of the allegation of misconduct, vide order dated 22.07.2008, was placed under suspension. On 07.10.2008, was served with a show cause notice on the allegation of reckless sanctioning and disbursement of the loans while working as Chief Manager of Alappuzha Branch of the Bank `WP(C) NO. 5100 OF 2013 -` 3 `-` during the period 30.06.2006 to 09.02.2008. Reply dated 15.11.2008 to the aforementioned show cause notice was submitted, which was not accepted. On 05.03.2009 vide Ext.P3 was served with the Articles of the charges. A detailed reply was submitted, but an Enquiry Officer was appointed. Before the Enquiry Officer Bank produced and marked documents Exts.MEX 1 to 187 and examined two witnesses. Petitioner in support of the case brought on record documents Exts.DEX 1 to 151. Enquiry Officer on the basis of the evidence brought on record, as per the report dated 10.04.2010 found that the charges were proved. Matter was placed before the Disciplinary Authority. An opportunity of hearing was given to explain after receipt of the explanation vide order dated 17.08.2010 Ext.P6 was dismissed from the service. The appeal as noticed above preferred against the order was also dismissed on 05.07.2011 vide Ext.P8 and Review Petition on 09.03.2012, Ext.P10. `WP(C) NO. 5100 OF 2013 -` 4 `-` 3. Mr.P.Ramakrishnan, learned counsel appearing on behalf of the petitioner submitted that before imposing the punishment of dismissal, petitioner had filed detailed objections giving the reason that the extension of the loan did not result into loss as the loan was protected and secured by deposit through equitable mortgage and various other grounds. On noticing of the order of the appellate authority, no reasoning much less any discussion has been laid on the said objections. Similar is the view of the Appellate Authority. In support of the aforementioned contention, relied upon the judgment of the constitution bench in **S.N. Mukherjee V.Union of India AIR 1990 SC 1984** wherein it has been held that reasoning has to be assigned by revisional or quasi judicial authorities. But if the appellate authority is concurring with the order of the competent authority reasoning may not be assigned. Another Bench of the Supreme Court in **AIR 2009 SC 3276 Chairman,** `WP(C) NO. 5100 OF 2013 -` 5 `-` **Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank v. Jagdish Sharan Varshney and Others** held that even while affirming the finding of a competent authority, some reasons are required to be given if not in detail. However from the perusal of the orders as noticed above no reasoning has been assigned. No presumption is drawn from the merits of the Enquiry Report in view of the catena of the judgments on the point. It was further contended that in view of the dismissal order, the gratuity as well as the provident fund has also been withheld. 4. On the other hand Mr.Sachith, learned counsel for the respondents submitted that the role of the Government Officer at every step of the employment particularly of the Chief General Manager is more onerous and responsible. He is required to act with full integrity and honesty. Any dereliction on the part of the delinquent employer even if may not cause loss to the `WP(C) NO. 5100 OF 2013 -` 6 `-` Bank, but such action if gone unnoticed will create an incongruous situation in case the order of the dismissal is either converted into termination or the matter is relegated to assign reasons. In support of the aforementioned contentions, relied upon various judgments including the latest judgment of the Supreme Court **(2022) 5 SCC 695 Regional Manager, UCO Bank and another Vs. Krishna Kumar Bhardwaj, 2022 SCC OnLine SC 667 State Bank of India and another Vs. K.S.Vishwanath** . 5. I have heard learned counsel for the parties and appraised the paper book. 6. Interference with regard to the disciplinary proceedings in view of the findings rendered in **Regional Manager, UCO Bank and another (supra)** is no longer res integra as certain guidelines have been issued for causing interference under Article 226 of the Constitution of India. The High Court while exercising `WP(C) NO. 5100 OF 2013 -` 7 `-` the power under Article 226 is not supposed to reexamine and re-appreciate the evidence except notice of non compliance of the principles of natural justice, i.e., audi alteram patrem, supply of the documents to the delinquent, assistance of an expert if sought by the management and the mode of the proof of the documents. In the instant case, the documents brought on record were proved by the testimony of the witnesses. The Enquiry Officer proved the following charges: - **“** *Failure to take all possible steps to ensure and protect the interest of the Bank. - Failure to discharge his duties with utmost devotion and diligence. - Failure to discharge his duties with utmost honesty and integrity. - Acting otherwise than in his best judgment - in the performance of his official duties.” 7. I would not be delving on the merits of the matter regarding the misuse of the power beyond the `WP(C) NO. 5100 OF 2013 -` 8 `-` jurisdiction assigned to the petitioner for extending the loan as the entire material has been discussed by the Enquiry Officer threadbare and in extenso. It is not the case of the petitioner that the enquiry was not held by competent authority or the principle of natural justice were not complied with. Strict rules of evidence are also not applicable in the departmental enquiry. The fact remains whether the matter is required to be revisited at the level of disciplinary authority for want of reasons. I am afraid such exercise cannot be ordered to be undertaken after ten(10) years of the pendency of the writ petition, in view of the ratio decidendi culled out in **S.N.Mukherjee (supra)** . Paragraph Nos.34 and 35 of the judgment reads as under: “34. The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding `WP(C) NO. 5100 OF 2013 -` 9 `-` that an administrative authority exercising quasi judicial functions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Art.136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Art 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision making. In this regard a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency whereas an executive officer generally looks at things from the stand point of policy and expediency. 35. Reasons, when recorded by an administrative authority in an order passed by it `WP(C) NO. 5100 OF 2013 -` 10 `-` while exercising quasi judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decisions making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate `WP(C) NO. 5100 OF 2013 -` 11 `-` that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such art order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.” 8. Though the counter affidavit of the respondents reveal that appropriate legal steps have been taken to recover the amount, the litigation is still pending. Assuming for an argument sake and though not admitting that matter is remitted, the finding of the disciplinary authority if reiterated though after assigning the reasons, no useful purpose would be achieved. Accordingly, I affirm the findings and dismiss the writ petition. 9. As regards the other relief for payment of gratuity and provident fund, it is not discerned whether the Bank has passed an order of forfeiture viz-a-viz the `WP(C) NO. 5100 OF 2013 -` 12 `-` provident fund. Accordingly I direct the respondents to take a call on payment of gratuity and provident fund after affording an opportunity of hearing to the petitioner and in case the rules permit for forfeiture, let the exercise of passing the order of forfeiture be done expeditiously, keeping in view the fact that the petitioner is stated to be suffering from malignancy and in order to bring succor, his contribution be returned as expeditiously as possible. Regarding the gratuity also the respondents shall take a call. The entire exercise shall be taken within a period of two months from the date of receipt of a certified copy of the judgment. **Sd/-** **`AMIT RAWAL JUDGE`** ``` vv ``` `WP(C) NO. 5100 OF 2013 -` 13 `-` ## **`APPENDIX OF WP(C) 5100/2013`** ## **`PETITIONER EXHIBITS`** - `EXHIBIT P1 TRUE COPY OF SHO-CAUSE NOTICE DATED 7.10.2008 ISSUED BY THE 2ND RESPONDENT.` - `EXHIBIT P2 TRUE COPY REPLY DATED 15.11.20085 SUBMITTED BY THE PETITIONER` - `EXHIBIT P3` - `TRUE COPY OF ARTICLES OF CHARGE DATED 5.3.2009 ISSUED BY THE 2ND RESPONDENT` - `EXHIBIT P4 TRUE COPY OF REPORT DATED 10.4.2010 OF THE ENQUIRY OFFICER.` - `EXHIBIT P5 TRUE COPY OF REPLY DATED 15.5.2010 TO TE ENQURIY REPORT SUBMITTED BY THE PETITIONER.` - `EXHIBIT P6 TRUE COPY OF ORDER DATED 17.8.2010 ISSUED BY THE 2ND RESPONDENT` - `EXHIBIT P7 TRUE COPY OF MEMORANDUM OF APPEAL DATED 18.10.2010 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT` - `EXHIBIT P8` - `TRUE COPY OF ORDER DATED 5.7.2011 ISSUED BY THE 3RD RESPONDENT` - `EXHIBIT P9` ``` TRUE COPY OF REVIEW PETITION DATED 29.11.2011 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT ``` - `EXHIBIT P10` - `TRUE COPY OF ORDER DATED 9.3.2012 PASSED BY THE 4TH RESPONDENT`