Hon'ble Manoj Misra, J.
1. We have heard Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare for the petitioner. Shri A.B. Saran, Senior Advocate assisted by Shri Maneesh Mehrotra appears for the respondents.
2. This writ petition is directed against the orders dated 22.8.2008 passed by the Deputy General Manager/Disciplinary Authority, Indian Overseas Bank, Central Office, Chennai, awarding the penalty of 'dismissal' in terms of Regulation 4 (j) of Indian Overseas Bank Officer Employees' (Discipline & Appeal) Regulations, 1976 (in short, the Regulations of 1976), with a further order that the period spent by him under suspension shall not be treated as one spent on duty and which will not be counted for monetary or any other benefits other than subsistence allowance already paid to him; and the appellate order in respect of the charge sheet issued on 17.8.2008 and various supplementary appeals filed against the order of the Disciplinary Authority dated 22.8.2008, by which the appeal was dismissed. The petitioner has also prayed for a direction to reinstate him in service with all consequential benefits, continuity in service, seniority and arrears of salary for the suspension period.
3. Brief facts, giving rise to this writ petition, are that the petitioner was appointed in respondent-bank as a Clerk in February, 1977. In the year 1982 he was promoted as Officer, Junior Management Grade-I and was thereafter promoted as Officer, Junior Management Grade-II. In the year 2002, the petitioner was granted promotion as Officer Middle Management Grade III and was posted as Senior Manager at Varanasi Contonment Branch, where he served from 31.1.2003 to 30.9.2006, and was thereafter transferred to Mathura. Before the petitioner could join at Mathura, he was placed under suspension on 6.10.2006 by the Deputy General Manager in contemplation of departmental proceedings in exercise of the powers under Regulation 12 (i) (a) of the Regulations of 1976. A departmental charge sheet was issued to the petitioner by the Deputy General Manager on 17.8.2007, alleging misconduct covered by Regulation 3 (1) and 3 (3) of the Indian Overseas Bank Officers Employees (Conduct) Regulations, 1976. The allegations in the charge sheet related to the period of work, when the petitioner was posted at Varanasi Contonment Branch.
4. The charge sheet dated 17.8.2007 served upon the petitioner levelled 30 imputations constituting misconduct punishable under the Regulations of 1976 calling upon him to give a reply. A summary of the imputations, vis-a-vis the customers and the nature of the allegations contained in the imputations, is given as below:-
(i) Charges No. 1 to 6 levelled allegation against the petitioner with regard to dealings with a partnership firm namely M/s Shiva Distributors of irregular sanction of Cash Credit Limite, irregular issuance of bankers cheque, irregular debiting from account of M/s Shiva Distributors, purchase of cheques on behalf of M/s Shiva Distributors for different amount.
(ii)Charges No. 7 to 11 - levelled allegations with regard to transaction entered into by the bank with M/s Vijay Telecom and its Proprietor Shri Vijay Kumar Jaiswal. The allegations included irregular grant of TOD, irregular sanction of Cash Credit limit, issuance of Bankers cheque on behalf of M/s Vijay Telecom without receiving amount covered by such bankers cheque, irregular advances of Housing Loan to Vijay Jaiswal and Smt. Jaishree Jaiwal and irregular advance towards purchase of a vehicle by Vijay Jaiswal.
(iii)Charges no. 12 to 16 - levelled allegation against the petitioner with regard to various transaction entered into by the bank with M/s Vinayak Distributor and its Proprietor Rishi Mohan. The allegation included wrongful sanction of cash credit limit indiscriminate purchase of cheques, issuance of bankers cheque without receiving money and irregular advance of vehicle loan.
(iv)Charge No. 17 pertain to irregular sanction of cash credit limit to M/s Kritarth communication.
(v)Charge No. 18 and 10 contained allegation with regard to transaction of the bank with M/s Satnam Jwellers as also the father of its proprietor Satnam Singh namely Manohar Singh. The allegations contained irregularities in advancing construction loan as also sanctioning Cash Credit limit.
(vi)Charge no. 20 levelled allegations of irregular sanction of cash credit limit to one M/s Omeera Doors Industries.
(vii)Charge no. 21 levelled allegations of irregular sanction of cash credit limit to one M/s Rohit Enterprises and its Proprietor Rohit Tewari.
(viii) Charge No. 22 levelled allegation with regard to Housing Loan advance to Daya Shanker Tewari and Smt. Vimla Tewari.
(ix)Charge No. 23 levelled allegation of sanction of cash credit limit to M/s Kiran Automobiles which was further alleged to belong to same Group as M/s Rohit Enterprises referred to in charge no. 21.
(x)Charge no. 23 levelled allegation of irregularity in sanctioning cash credit limit to M/s J.S.M. Construction.
(xi)Charge No. 25 levelled allegation of unauthorized sanction of Rs. 61, 387/- for purchasing furniture for officers.
(xii)Charge No. 26 levelled allegation of cash remittances to the currency chest of the bank at Lucknow through taxies instead of utilizing the van of the bank itself.
(xiii)Charge No. 27 - levelled allegation of the petitioner having caused loss to the bank by showing extra interest on maturity amount of recurring deposit to conceal and overcome the deduction of TDS amount.
(xiv)Charge No. 28 pertain to payment of interest on deposit after maturity without even renewal of the deposit.
(xv)Charge no. 29 levelled allegation of unauthorized debiting of two accounts by an amount of Rs. 36, 000/-.
(xvi) Charge no. 30 levelled allegation of irregular sanction of Cash Credit Limit to one M/s Allahabad Glass and Glossaries stores.
5. The charge sheet appended Annexure I, II and III. Annexure-I contained the details of payments of fraudulently issued banker's cheques received through clearing in the account of M/s Shiva Distributor a/c CC No. 10202 totaling Rs. 601.50 lacs; Annexure-II gave the details of the return of cheques purchased in the account of M/s Shiva Distributor (CC No. 10202) totalling Rs. 1,63,82,000/- and annexure III contained the details of various CCs account numbering 33, debited on 29.12.2005 for an amount aggregating to Rs. 36, 000/-.
6. The petitioner submitted a reply on 5.9.2007 denying each of the allegations. Shri N. Iqbal Ahmad was appointed as enquiry officer. The enquiry commenced on 23.11.2007 and concluded on 4.2.2008.
7. On 23.11.2007 certain questions were put to the petitioner to which he replied pleading that he was not guilty of the charges. On 12.12.2007 and 14.12.2007, documents were introduced by the presenting officer in support of the allegations against the petitioner as Management Exhibits 1 to 346. On 15.12.2007 five more documents were introduced, which were marked as Management Exhibits 347 to 351. On 15.12.2007 the presenting officer produced one Shri Jamal Hussain as Management Witness-I, who was examined by the presenting officer and replied to the questions put to him by the presenting officer himself. His statement continued on 17.12.2007, 18.12.2007 and 19.12.2007. On 29.1.2008, when his examination was to continue, Shri Jamal Hussain, MW-1 was not present. The presenting officer introduced the next witness and allowed Shri Jamal Hussain to continue after the next witness on the ground that he was proceeding to his native place to attend his mother-in-law, who was seriously ill. The enquiry officer allowed Shri Suresh Chand Sahu, MW-2 and recorded his statement on 29.1.2008 and 30.1.2008. On 31.1.2008 the statement of Shri Jamal Hussain MW-1, recommenced and was recorded on 31.1.2008, 1.2.2008 and 4.2.2008. After his statement concluded, the petitioner's representative was given opportunity to cross-examine Shri Jamal Hussain MW-1. The cross examination concluded on 4.2.2008 after which the statement of Shri R.C. Jain MW-3 was recorded on 4.2.2008, and was allowed to be cross-examined. On 4.2.2008 the defence representative stated that he did not wish to produce any witnesses or document. On that date the statement of the petitioner was also recorded and the proceedings were closed, giving an opportunity to presenting officer and the defence 15 days' to submit their written briefs, which were duly submitted.
8. The enquiry report was submitted on 5.6.2008 in which the enquiry officer found charge nos. 17 (a) and 20 (d) as partly proved, charge no. 18 (a) and 26 (c) were not proved. The remaining charges were found to be proved against the petitioner. The petitioner filed detailed objections on 25.6.2008 to the enquiry report. The Deputy General Manager by the impugned order dated 22.8.2008 passed the final order inflicting penalty of dismissal from service and further directed that during the period of suspension the petitioner shall not be treated to be on duty and would not be entitled to any other monetary benefits except suspension allowance. The petitioner's appeal against the order was dismissed on 06.1.2009.
9. Shri Ashok Khare, Senior Advocate appearing for the petitioner submits that during the course of enquiry, the presenting officer examined Shri Jamal Husain, Chief Inspector, Indian Overseas Bank, Inspection Department, Central Office, Chennai as MW-1; Shri Suresh Chand Sahu, Chief Manager attached to the Regional Office, Lucknow from June, 2004 as MW-2, and Shri R.C. Jain, Senior Manager, Varanasi Contonment Branch from 11.10.2006 as MW-3. The statement of Shri Jamal Hussain was limited to an inspection conducted by him at Varanasi Contonment Branch from November-December 2006. His examination was limited to his inferences/observations arising from the documents filed as management exhibits. He was neither competent to prove the authenticity of the documents, nor his examination was for proving for any such document. All questions placed to him were in the form of obtaining his opinion regarding the documents. Shri Suresh Chand Sahu was examined by the presenting officer; his testimony was also limited to an investigation conducted by him at Varanasi Contonment Branch in September, 2006, and a report dated 29.9.2006 filed by him. So far as the testimony of Shri R.C. Jain as MW-3 is concerned, it was also limited to the existing position of the accounts of various firms of which the details were given in the charge sheet. Shri R.C. Jain did not refer to any original documents and limited his statement to file a statement of present outstanding from the accounts of the disputed concern in the chart filed as management exhibit 371.
10. Shri Ashok Khare submits that none of the documents were proved by the respondents nor any statement of account submitted by Shri R.C. Jain was proved by any evidence. The statement of Shri R.C. Jain was formal in nature. The testimony of none of these witnesses can be treated as substantive evidence in support of the documents filed by the management and that the findings based on these testimonies specially the testimony of Shri Jamal Hussain MW1 was not admissible, nor the disciplinary authority considered the evidence along with reply submitted by the petitioner to the departmental charge sheet. The entire recital in the order of dismissal is a one-sided recital without any consideration of any kind.
11. It is further submitted by Shri Ashok Khare that the allegations levelled can be classified into two categories, namely the issuance of bankers' cheques in favour of M/s Reliance Communications & Infrastructure Ltd. on behalf of M/s Shiva Distributors; M/s Vijay Telecom and M/s Vinayak Distributors without debiting their accounts with reference to amount covered by the bankers' cheque and the discretionary sanction of cash credit limit to M/s Shiva Distributors, M/s Vijay Telecom and M/s Vinayak Distributors and their partners/proprietors. Apart from this there is only a miscellaneous charge of having wrongful use of service of taxies for projecting cash from the branch of the bank to the currency chest at Lucknow instead of utilising the bank's vehicle.
12. Shri Khare submits that in respect of the first category of charges of issuing bankers cheque without debiting the concerned account, a total number of 34 bankers cheques were issued in favour of M/s Reliance Communication and Infrastructure Limited; the requisite amount stood debited from the account of the concerned party in less than 48 hours. All these bankers' cheque were issued through the normal procedure of issuing the bankers' cheque and the only default, which can be attributed to the petitioner, was the absence of knowledge of the delay in debiting the account, as these facts were not in the knowledge of the petitioner. The majority of these bankers cheques were issued by the subordinate officials posted at the Contonment Branch, Varanasi. The issuance of bankers' cheques without immediate corresponding debit from the account of the party was not in the knowledge of the petitioner. Out of these 34 bankers' cheques, hardly five and six were signed by the petitioner. The two or three bankers' cheques were issued by the petitioner as the first officer after necessary debit from the concerned account and there existed no irregularity/default in the same. The security/custody of these bankers' cheque forms were not with the petitioner but with subordinate officials. There was no diversion of funds. All the bankers cheques were issued to legitimate payees. The interest loss of two days between the issue and debit was made good by recovering the same from the concerned account. No loss of any kind was occasioned to the respondent-bank on account of short delay of 24 hours in debiting of amount. It could at best be treated as technical default.
13. Shri Khare submits that with regard to sanction of credit limit the petitioner as Senior Manager at Varanasi Contonment Branch was the sanctioning authority upto limit of Rs. 40 lacs from which the powers vested in the Regional office. M/s Shiva Distributors was sanctioned a cash credit limit to the tune of Rs. 90 lacs by the Regional office. No irregularity of any kind would be found in sanctioning the credit limit upto Rs. 40 lacs, and the papers pertaining to M/s Vijai Telecom, which was also given cash credit limit by Regional Office upto Rs. 90 lacs were sent to the regional office. Nothing was found objectionable in the sanction of such cash credit limit, which was fully secured by mortgage of immovable properties belonging to concerned parties or its guarantors. The petitioner did not expose the bank to any financial risk or any loss. He submits that if there was any default or irregularity in sanctioning the cash credit limit to M/s Shiva Distributors and M/s Vijay Telecom, the officers of the Regional office were responsible as they had subsequently enhanced the cash credit limit to these firms upto Rs. 90 lacs.
14. On the miscellaneous charge of utilising taxi for transmitting the cash is concerned, Shri Ashok Khare submits that before making any despatches, prior permission was obtained from the security department and there existed no irregularity or default of any kind. It is submitted that the disciplinary authority as well as the appellate authority failed to consider the objections. There was no evidence to support the findings recorded against the petitioner. The charges were by way of normal functioning and business of the bank in which the bank did not suffer any loss at all. Shri Khare submits that even otherwise, the penalty imposed is grossly disproportionate to the allegations made against him.
15. So far as the denial of pay and allowance other than subsistence allowance is concerned, it is submitted by Shri Khare, relying upon Regulation 14 of the Regulations of 1976, that an employee has to be paid one-third of his basic pay during first three months of his subsistence followed by one half of his basic pay. The petitioner was entitled to be paid one-third of his pay as subsistence allowance after three months of his suspension. He was allowed one third of his pay only after six months of his suspension.
16. Shri Khare has placed reliance upon Roop Singh Negi vs. Punjab National Bank and others (2009) 2 SCC 570 in submitting that a departmental enquiry is a quasi-judicial proceedings. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer is under duty to arrive at a finding taking into consideration the materials brought on record by the parties. The documentary evidence must be supported by the witnesses, who proved the documents. When the management witnesses do not prove the contents of the documents, no reliance could be placed on such material. Even a confession should be proved by bringing some evidence to show that a person had indulged in misconduct. Where there is no direct evidence, the enquiry officer cannot hold a person guilty. In the same judgment in paragraph-23 the Supreme Court observed that both the disciplinary authority as well as appellate authority must give reasons to meet the objections. Since the orders have severe civil consequence, appropriate reasons should be assigned. If any reliance has been placed upon confession, there could be no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. The decision must be arrived at on some evidence, which is legally admissible. Even if the provisions of Evidence Act are not applicable, the principles of natural justice or a report of the enquiry officer based only on ipse dixit as also surmises and conjectures, cannot be sustained. The inferences drawn by the enquiry officer should be supported by the evidence. The suspicion, however, strong it may be, can under no circumstances be held to be a substitute for legal proof.
17. Shri Khare also relied upon Life Insurance Corporation of India and another vs. Ram Pal Singh Bisen (2010) 4 SCC 491. In this case a civil suit was filed questioning the validity of departmental enquiry. The Supreme Court held that the appellant-employer should have proved the contents of documents either by serving notice on respondent employee to admit documents or by calling witnesses. Mere fact that the documents were exhibited , did not mean that their contents stood proved. In absence of proof, the employer could not have considered the case to be proved on the ground that the adequate opportunity was given to such employee. Mere admission of a document in evidence does not amount to its proof. Under the law of evidence it is necessary that contents of documents are required to be proved either by primary or by secondary evidence. At the most admission of documents may amount to admission of contents but not its truth. The documents have not been produced and marked as required under the Evidence Act, could not be relied upon by the Court. The contents of the documents cannot be proved by merely filing it in Court.
18. Shri A.B. Saran, Senior Advocate assisted by Shri Maneesh Mehrotra submits that the petitioner was placed under suspension on 6.10.2006 for his act of commission and omission while working as Senior Manager, Varanasi Contonment Branch, as he had contravened Regulation 3 (1) and 3 (3) of the Indian Overseas Bank Officers Employees (Conduct) Regulations, 1976, which is punishable under the Regulations of 1976. In terms of Regulation 24 the proved charges are of serious nature, which involve moral turpitude of the petitioner. The charges are related to falsification and manipulation of the bank records; fraudulently debiting suspense account; issuing bankers cheques without receiving consideration from the customers and also for not accounting in the books of the banks; conferring undue pecuniary gain to 3rd parties debiting profit and loss account without actually spending the amount; exceeding the discretionary powers while granting loans and advances; granting loan for accommodation purpose; granting advances without obtaining adequate securities; suppression of material facts; purchase of local cheques violating banks' guidelines and other charges. The misconduct has been defined under the amended Regulations of 1976 as follows:-
3 (1): Every Officer Employee shall, at all times take all possible steps to ensure and protect the interest of the bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of an officer employee.
3 (3): No officer employee shall, in the performance of his official duties or in the exercise of powers conferred on him, act otherwise than in his best judgment except when he is acting under the direction of his official superior provided wherever such directions are oral in nature, the same shall be confirmed in writing by his superior official.
Any breach of any of the provisions of these Regulations shall be deemed to constitute a misconduct punishable under the Indian Overseas Bank Officer Employees' (Discipline & Appeal) Regulation 1976."
19. Shri Saran submits that Shri Iqbal Hussain was appointed as enquiring authority. He appointed Shri N. Raja, Senior Manager attached to Conduct and Disciplinary Action Cell, Central Office as presenting officer. A preliminary enquiry into the charges was held on 23.11.2006 in which the petitioner was asked whether he had received the charge sheet; understood its contents and whether he admits to the charges. Since the petitioner denied the charges, the charge sheet and its schedule was finalised for inspection of the original and listed documents for submission of additional list of documents by the petitioner. The regular enquiry commenced on 12.12.2007 and was concluded on 4.2.2008. In the enquiry the presenting officer produced 378 documents; taken on record as Management Exhibits. The presenting officer also examined Shri Jamal Hussain, Chief Inspector, Inspection Department as MW-1; Shri Suresh Chand Sahu, Chief Manager, Regional Office, Lucknow as MW-2 and Shri R.C. Jain, Senior Manager, Varanasi Contonement Branch as MW-3.
20. The petitioner had indicated on the commencement of the enquiry that Mr. S. Nanda Kumar, Senior Manager, IOB Depository Service Branch, Chennai would defend him. He thereafter stated that for unavoidable reasons his defence representative could not be present and he had no objection of introduction of documents and witnesses by the presenting officer as he would be present in the enquiry. Considering his submission, the enquiry officer proceeded with the enquiry. In the enquiry the petitioner confirmed that he completed inspections of most of the management documents and that he will complete the remaining few documents during the course of enquiry. He again requested to allow Shri S. Nanda Kumar to participate in the enquiry from 29.1.2008. The defence representative cross-examined the management witnesses. During the enquiry the defence representative introduced three documents as DE-1, to DE-3. The defence representative did not introduce any witness but cross-examined the management witnesses extensively. Written briefs were submitted on 26.2.2008 by the presenting officer after conclusion of the enquiry and same was forwarded to the petitioner. The petitioner also submitted his written brief on 21.3.2008.
21. Shri Saran submits that the petitioner was afforded full and adequate opportunity to defend himself. All the documents were produced and inspected by the petitioner in the enquiry. The petitioner did not deny the contents of the documents. These documents were proved by the Senior Manager in Varanasi Contonment Branch, who had the custody and were admissible under the Bankers' Books Evidence Act. The findings have not been challenged or denied by the petitioner except by stating that the accounts became regular in 48 hours by depositing the amount for which the bankers' cheques were issued and that a higher cash credit limit was actually sanctioned to the two firms subsequently by the regional office. The petitioner had violated the norms of the bank and was found guilty of falsification and manipulation of the bank account causing undue pecuniary gain to third party. He had exceeded his discretionary powers in granting loans, jeopardising the bank's interest and without obtaining adequate security.
22. Shri Saran has relied upon State Bank of India and others vs. S.N. Goyal 2008 (3) AWC 2755 (SC) in which it was held in paragraphs 28 and 29 that the bank survives on the trust of its clientele and constituents. The position of the Managers of a bank is a matter of great trust. They are expected to work with absolute integrity and honesty. Any misappropriation, even temporary, of the funds of the bank or its customers/borrowers constitutes a serious misconduct inviting severe punishment. The action taken by the bank does not call for any leniency and request for reducing punishment must be treated as misconceived. In UCO Bank & another vs. Rajinder Lal Capoor 2008 (1) D.R.T.C. 1 (S.C.) the Supreme Court held that where a Manager of the bank is found to have embezzled or misappropriated any amount, or exceeded the jurisdiction in the matter of grant of sanction of loans, the Court takes a strict view of the matter.
23. Shri Saran has further relied upon State Bank of India vs. Ram lal Bhaskar and another (2011) 10 SCC 249 in which the Supreme Court in paragraphs 12 and 13 as follows:-
"12. This Court has held in State of Andhra Pradesh and Others v. Sree Rama Rao (AIR 1963 SC 1723):
"7.....The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence"
13. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re- appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled against the respondent no.1 do not constitute any misconduct and that the respondent no.1 was not guilty of any misconduct."
24. In the present case, the charge sheet dated 17.8.2007 alleging misconduct with 30 imputations annexed the details of the banker's cheques received through clearing in the accounts of M/s Shiva Distributors a/c CC 10202 detailing 38 transactions in which the petitioner had made the suspense entries, which were later on reversed. A total amount in the 38 banker's cheques from 24.12.2005 to 21.9.2006 was of Rs. 601.50 lacs. In respect of the same account the annexure-2 to the charge sheet related to the return of eight cheques purchased from 19.6.2006 to 21.9.2006 totalling Rs. 1, 63, 82, 000/-. The third annexure gave the details of CC accounts debited on a single day on 29.12.2005 for an aggregating to Rs. 36, 000/-. In substance these charges relate to giving undue favour to M/s Shiva Distributors-a partnership firm with M/s Ashok Singh and Smt. Jayashree Jaiswal as its partners by sanctioning the limit without appraisal and exceeding the limit to Rs. 40 lacs indiscriminately; allowing excesses indiscriminately in CC account continuously upto the maximum of Rs. 69.82 lacs on 29.9.2004, whereas the credit proposal for exceeding the limit from Rs. 40 lacs to Rs. 90 lacs was pending. The firm was reconstituted on 01.4.2005 inducting Mr. Vijai Jaiswal as new partner without the permission of the branch and without any advise given by the petitioner for such reconstitution. The petitioner had allowed term loan of Rs. 9.78 lacs to Smt. Jayashree Jaiswal for purchase of two shops by allowing bulk payments to the term loan account with excess in the CC account of M/s Shiva Distributors. Another term loan of Rs. 5 lacs was allowed to M/s Shiva Distributor for renovation and furnishing of the shops. Though the party had submitted quotation only for Rs. 3.29 lacs. On 24.1.2006 and 26.5.2006 the Regional Office at Lucknow had advised not to exceed the adhoc limit of Rs. 25 lacs and 40 lacs. The petitioner had allowed excess in the account to the maximum outstanding of Rs. 251.77 lacs (debit) on 10.6.2006.
25. The imputation nos. 2, 3, 4, 5 and 6 also related to fraudulently issuing Banker's cheques to M/s Shiva Distributors in favour of M/s Reliance Communication Infrastructure Ltd by debiting branch suspense account. For example suspense account was debited on 18.11.2005 for issuing Banker's cheques of Rs. 10 lacs, whereas the entry in the suspense account was eliminated 25.11.2005. Another banker's cheque of Rs. 15 lacs was issued by debiting suspense account on 14.1.2006, whereas the entry was eliminated on 23.1.2006. In this manner on five occasions the banker's cheques were issued for which the firm did not have the requisite amount in the bank by debiting the suspense account. The imputation no. 5 related to purchasing of more than 200 cheques on behalf of M/s Shiva Distributors and its group accounts between November, 2005 to September 2006, almost on daily basis, in which most of the purchased cheques were returned unpaid and specially when the party was not enjoying any limit under the cheques purchase. These cheques were also not maintained in the liability register and that the exchange, commission and postage were not recovered from the party. Out of these eight cheques aggregating to Rs. 163.82 lacs detailed in annexure-2 to the charge sheet purchased on behalf of M/s Shiva Distributors were returned unpaid and became difficult to recover. The petitioner also purchased local cheques for M/s Shiva Distributors between 2003 to 2006 to accommodate the firm. Imputation no. 6, which appears to be the most serious allegation against the petitioner, is quoted:-
a. You had purchased local cheques on behalf of M/s Shiva Distributors violating the extant guidelines. You had purchased local cheques to the party for Rs. 91.34 Lacs, Rs. 98.31 Lacs, Rs. 406.44 Lacs and Rs. 898.73 Lacs during the years 2003 to Sep 2006 and accommodated the party.
b. On 02.09.06, you had fraudulently credited Rs. 70 Lacs to the CC a/c No. 10202 of M/s Shiva Distributors to the debit of Local Cheque Discounted a/c as if a local cheque for Rs. 70 Lacs was discounted on behalf of the party. You made the debit and credit entries without vouchers and the transactions were passed under the password of Mr. Jayesh Kumar, Assistant Manager. The party had not deposited any cheque for Rs. 70 lacs and no cheque for Rs. 70 lacs was lodged in the clearing register of the Branch for collection. You had caused loss to the Bank and conferred undue pecuniary gain to the party.
Due to your act, a sum of Rs. 70 Lacs outstanding in the local cheque discounting a/c against the firm and has become difficult of recovery."
26. Similar allegations were made in imputation nos. 7 and 8 regarding indiscriminate grant of TODs in the CD a/c no. 1030 M/s Vijay Telecoms of which Shri Vijay Kumar Jaiswal was the proprietor since 5.9.2003. Imputation no. 7 (b) related to sanction of CC limit of Rs. 25 lakhs on 8.9.2003 without proper appraisal and opening CC account in the firm's name without obtaining account opening form and specimen signature sheet and without complying with the KYC norms. Imputation 7 (b) and (c) are quoted as below:-
a..
b. On 08.9.2003 you had sanctioned CC limit of Rs. 25 lakhs without proper appraisal and opened CC a/c No. 10130 in the firm's name without obtaining account opening form and specimen signature sheet and without complying with the KYC norms.
c. From the CC limit you had transferred the amount to the CC 1030 and adjusted the TOD granted earlier. Even after sanctioning the CC limit of Rs. 25 Lacs to the firm, you had on daily basis allowed indiscriminate excess in the account from 09.12.03 onwards. The outstanding as on 02.11.04 was Rs. 60.60 Lacs (Debit) as against the sanctioned limit of Rs. 25 Lacs. You failed to report the excess allowed to the party to RO for their confirmation."
27. Imputation nos. 8, 9, 10 and 11 related to irregularities in the account of M/s Vijay Telecom (CC a/c No. 10130) for issuing banker's cheques in favour of M/s Reliance Communication Infrastructure Ltd. without receiving the amount and without accounting for the BC in the books of the Branch. A housing loan was sanctioned for Rs. 27.42 lacs to same Shri Vijay Jaiswal and Smt. Jayashree Jaiswal for purchasing two flats at Vinay Kunj Complex, Sigra, Varanasi in February, 2006 without obtaining collateral security. The petitioner also failed to ensure that the sale deeds of the two flats were actually executed in favour of the borrowers and mortgage was created by depositing the same with the branch. There was no primary security available covering the transaction on which it became difficult to recover the amount. By imputation no. 10 the petitioner was charged for having advanced Rs. 7.95 lacs on 15.2.2006, and issuing banker's cheques for purchase of TATA Safari Car to Shri Vijay Jaiswal and again for granting a vehicle loan under Pushpaka Scheme to same Shri Vijay Jaiswal of Rs. 6 lacs exceeding his discretion. The proceeds of the loan was utilised to eliminate the suspense entries.
28. Imputation nos. 12, 13, and 14 were of the same nature relating to M/s Vinayak Distributors (Prop. Sri Rishi Mohan) of exceeding the CC limit; purchasing cheques and issuing banker's cheques of Rs. 25 lacs on 3.1.2006; Rs. 20 lacs on 3.2.2006 and another Rs. 20 lacs on 28.2.2006 by debiting the suspense account. Imputation no.15 related to grant of vehicle loan of Rs. 37, 000/- to Shri Rishi Mohan exceeding the discretion. Imputation no. 16 related to unauthorisedly debiting suspense account on 19.6.2006 for Rs. 7.50 lacs for supply of a Honda Citi Car to Shri Rishi Mohan as proprietor of M/s Vinayak Distributors. The petitioner thereafter failed to recover the interest from 19.6.2006 to 16.7.2006 on the entries in the suspense account.
29. Similar allegations were made with regard to term loan account and CC account of M/s Satnam Jewellers, proprietor Shri Stanam Singh vide imputation nos. 18 and 19; M/s Omeera Doors Industries vide imputation no. 20; granting CC limit of Rs. 10 lacs to M/s Rohit Enterprises, Prop. Sri Rohit Tiwari vide imputation no. 21; Shri Daya Shanker Tiwari and Smt. Bimla Tiwari vide imputation no. 22 and M/s Kiran Automobiles vide imputation no.23.
30. The enquiry officer has relied upon 378 documents, which were inspected by the petitioner and were proved by the witnesses Shri Jamal Hussain MW-1; Shri Suresh Chand Sahu MW-2 and Shri R.C. Jain, the then Senior Manager of the Branch as MW-3. He also relied upon and referred to the written briefs filed by the presenting officer and the defence. The enquiry officer referred to the documents and the proofs by the witnesses in respect of each imputation and found them to be proved except imputation no. 17 (a) and 20 (d) which were partly proved and imputation no. 18 (a) and 26 (c), which were not proved.
31. We have examined the enquiry report and find that the Inquiring Authority considered each and every imputations with the help of the documents and the proof of the documents by the witnesses. In the detailed enquiry report he has referred to all the documents and the deposition by which these documents were proved in arriving at a finding that the imputations except those mentioned above were proved. The Disciplinary Authority in its order dated 22.8.2008 considered the report of the enquiry officer and the reply given by the petitioner dated 25.6.2008. The Disciplinary Authority discussed the accounts of M/s Shiva Distributors, M/s Vijai Telecoms, Shri Vijay Kumar Jaiswal separately and agreed with the findings recorded by the Inquiring Authority. He also observed that the advances sanctioned to M/s Shiva Distributors has become non-performing assets and difficult to recover to the tune of Rs. 355.76 lacs and the amount due is not backed by any adequate security. The findings of the Inquiring Authority on imputation no. 1 (a) to (n) were found proved. With regard to utilisation of bank funds and issuing banker's cheques to the tune of Rs. 577 lacs by debiting the suspense account, manipulating the branch record in which the interest was also not charged, the Disciplinary Authority did not agree with the contention of the petitioner, that his password was stealthily used in passing these banker's cheques and he was not aware about the issuance of such cheques. It was found that not only the petitioner had issued these banker's cheques, he had also threatened the officers working under him and got their signatures in the banker's cheques issued without receiving funds. The findings on imputation no. 2, except one transaction of BC No. 1115 for Rs. 2 lacs, were proved.
32. The Disciplinary Authority has observed in the order that on 14.9.2006 Mr. Jayesh Kumar, Assistant Manager leaving for Chennai to undergo training at out Staff College was given two flight tickets by the petitioner, when he was not eligible for the same stating that the petitioner will bear the difference amount. On 16.9.2006 and 29.9.2006 the petitioner got the signatures of Mr. Jayesh Kumar on the banker's cheques of Rs. 15 lacs and Rs. 40 lacs issued in favour of M/s Reliance Communication Infrastructure Limited without receiving the amount from M/s Shiva Distributors under compulsion/coercion. It was also found that the defence of the petitioner, that he had purchased eight cheques on behalf of M/s Shiva Distributors to the tune of Rs. 163.82 lacs, which have become difficult for recovery with the knowledge of the regional office, was not supported by the evidence on record. The imputation nos. 3, 4 (a & b), 5 (a to c) were thus found proved. Similarly the purchase of local cheques to the tune of Rs. 1494.82 lacs violating the bank guidelines was also proved.
33. With regard to M/s Vijay Telecoms and Vijai Kumar Jaiswal, the Disciplinary Authority agreed with the findings of the Inquiring Authority on imputations no. 7 (a to h), 8, 9 and 10 and in respect of Shri Vijai Kumar Jaiswal on imputation nos. 11 (a to c), 12 (a to d), 13 (a and b), 14, 15 (a to d) and 16 (a to d), 17 (b and c) were proved. Imputation no. 17 (a) was partly proved. Imputation no. 8 (b to h) was also proved, whereas the imputation no. 18 (a) was not proved. The disciplinary authority also found imputation no. 20 (a and c) as proved and 20 (d) as partly proved. He also found imputation no. 21 (a to d) as proved, imputation no. 22 (a to e) as proved and similarly imputation nos. 23, 24 (a to d), 25, 26 (a, b and d) as proved. Imputation no. 28, 29 (a to d) and 30 (a to d) were also found to be proved.
34. On the proportionality of punishment we find that the Disciplinary Authority has considered the gravity of the charges and observed as follows:-
"I find that you had failed to take all possible steps to ensure and protect the interest of the Bank and discharge your duties with utmost integrity, honesty, devotion and diligence. You had acted otherwise than in you best judgment in the performance of your official duties and in the exercise of the powers conferred on you. The proved charges are grave in nature warranting deterrent penalty. I am of the opinion that the ends of justice will be fully met by awarding you the penalty of "Dismissal".
Accordingly, I pass this original order awarding you the penalty of "Dismissal" in terms of Regulation 4 (j) of Indian Overseas Bank Officer Employees" (Discipline & Appeal) Regulations, 1976, as amended up to date.
As the proved charges are serious in nature, I order that the period spent by you under suspension shall not be treated as one spent on duty and you will not be entitled to monetary or any other benefits other than the subsistence allowance already paid to you.
In respect of the charge sheet dated 15.12.2007 issued to you, the Bank reserves its right to proceed against you, if need be, in future."
35. We find that the Appellate Authority has considered each and every ground and has given sufficient reasons to agree with the findings recorded by the disciplinary authority and the punishment awarded to the petitioner. The Appellate Authority applied its mind to the evidence and the proof of the allegations. It also considered the defence and did not find the grounds of appeal to be convincing and acceptable.
36. We do not agree with the arguments advanced by Shri Ashok Khare, that there was no oral evidence led to prove the documents and consequently the charges. Shri Jamal Hussain, Chief Inspector, Indian Overseas Bank, Inspection Department; Shri Suresh Chand Sahu, Chief Manager and Shri R.C. Jain, Senior Manager of the Branch-the custodian of the documents had proved the documents and the allegations against the petitioner. Shri R.C. Jain as the then Branch Manager of the Branch was competent to prove the documents. His statement of the present outstanding of the accounts proved the allegations that the transactions entered into by the petitioner by issuing banker's cheques after debiting suspense account of the bank and the purchase of cheques was without authority and that there were over dues in the accounts, which had become non-performing assets. The argument, that some of the accounts from which the banker's cheques were issued, had subsequently become regular, is attractive but looses sight of the banking business in which the officers have to strictly adhere to the norms of the bank. It is not correct to submit that the charges were by way of normal functioning and business of the bank in which the bank did not suffer any loss at all. As observed above, the Disciplinary Authority has recorded findings to the effect that the CC accounts of M/s Shiva Distributors, M/s Vijai Telecom and Shri Vijay Kumar Jaiswal, had become NPA and that the amounts have become difficult to recover as they were not backed up with sufficient security.
37. In the matters of disciplinary enquiries the High Court does not review the findings as an Appellate Authority. If the findings are supported by some evidence, which is cogent, admissible and reliable, the High Court would not re-appreciate the evidence to come to a different and independent finding. The role of the High Court is confined to find out the procedural fairness in the enquiry and the admissible and reliable evidence, by which the charges are substantially established and proved the imputation of misconduct. The High Court may also look into the reasons given by the Disciplinary Authority, and the Appellate Authority in arriving at a conclusion, which is sufficient to hold the officer guilty of misconduct and to award punishment. The proportionality of the punishment can be reviewed only to satisfy the Court whether it is not so grossly disproportionate, which may shock its conscience. In State Bank of Mysore vs. M.C. Krishnappa (2011) 7 SCC 325 the Supreme Court, following U.T. of Dadra & Nagar Haveli vs. Gulabhia M. Lad (2010) 5 SCC 775, observed that punishment is primarily a function of management and the Courts rarely interfere with the quantum of punishment.
38. In the present case, the misconduct was proved by the admissible, reliable and cogent evidence and that the findings were arrived at after considering the defence of the petitioner. Taking into account the gross misconduct, in violating the norms of the bank in issuing banker's cheques by debiting suspense account and purchasing cheques, jeopardising the interest of the bank, the punishment awarded is not disproportionate to the charges. The punishment order and appellate order thus do not call for any interference.
39. We, however, agree with the contention of Shri Ashok Khare that under Regulation 14 of the Regulations of 1976 the petitioner was entitled to one-half of the basic pay as subsistence allowance after three months of suspension and upto six months for which he was paid one-third of his basic pay.
40. The writ petition is partly allowed only to the extent that the petitioner will be entitled to subsistence allowance equal to one-half of his basic pay after three months of his suspension, upto 22.8.2008, when he was dismissed from service. The difference shall be calculated and paid to him within three months. The petitioner is not entitled to any other relief. There shall be no order as to costs.
Dt.11.5.2012 RKP/