The challenge in the present writ petition is to an order of dismissal passed against the petitioner dated 19.05.1998, confirmed in appeal by order dated 20.04.1999. The petitioner was working as an officer in the respondent Bank having joined the services of the Bank on 21.02.1978. On 06.10.1990, he assumed charges as officer incharge of Melekodumalai branch. While, he was working in the said branch, a charge memo dated 31.10.1995 was served on the petitioner containing six articles of charges, which are as hereunder:-
Charge 1(a):-
You in collusion with the branch F.S. Shri Suruli Bommaiyan granted 2 Dairy loans (No. ADL 37/91 & 55/91) to Shri Ammavasai and Shri Gurusamy under the THADCO Scheme, which was meant only for people belonging to SC/ST community. Knowing fully well that the Shri Ammavasai and Shri Gurusamy do not belong to SC/ST Community, you granted the said loans with intention to confer undue pecuniary gains on the said borrowers. You have thus abused your official position and fraudulently siphoned of Rs.11568/- from the bank funds and which ultimately caused wrongful loss to the Bank and wrongful gain to you and others.
Charge 1(b):-
You in collusion with the branch F.S.Shri Suruli Bommaiyan granted 7 dairy loans (as per details shown in the Annexure A) under THADCO scheme which was meant only for people belonging to SC/ST community. Knowing fully well that the said borrowers (as per details in the Annexure A) do not belong to SC/ST community, you granted the said loans with intention to confer undue pecuniary gains on the said borrowers. You have thus abused your official position and fraudulently siphoned of the subsidy amount from the bank funds which ultimately caused wrongful loss to Government and Bank and wrongful gain to you a others.
Charge 2:
During December 1993 you have granted 5 small loans and 17 charcoal loans to different borrowers total amounting to Rs.1,99,000/- (details furnished in Annexure-A). At the time of disbursement of these loans, you in collusion with Shri Sururli Bommaiyan, Branch F.S. and Shri Naganathan, Branch Cashier, demanded and accepted 10% of the total loan amount as illegal gratification.
Charge 3:-
You have sanctioned 25 dairy loans (II animal) to the tune of Rs.1,00,000 during the period from December 1993 and March 1994 (Details shown in Annexure) and while doing so you have failed to conduct the post sanction inspection. As a result of your above said lapses, the Bank is likely to sustain a loss of Rs.71,758/- as the entire outstanding has become doubtful of recovery.
Charge 4:-
In collusion with your F.S. Shri Suruli Bommaiyan, you have sanctioned one Crop Loan No.6/95 for Rs.4905/- to Shri E.Ramaiah S/o Erulandi Thevar who is the brother of Shri Ammavasai who impersonated himself as SC member and availed dairy loan ADL 37/91. You have adjusted a sum of Rs.4830/- from the crop loan proceeds to the impersonated dairy loan No.37/91. To suppress the fraudulent act of impersonation by above said crop loan borrower's brother, you have credited the crop loan proceeds in the diary loan a/c (ADL 37/91). Due to your above said dishonest act in collusion with crop loan borrower for your pecuniary gain, the entire crop loan amount has become doubtful of recovery.
Charge 5:-
You have accepted illegal gratification a sum of Rs.1000/- for sanctioning a small loan of Rs.5000/- (SL 2/92) for cut piece business, from Mrs. Kaliammal. Thus you have cheated the innocent poor lady borrower for your wrongful pecuniary gain.
SL 2/92 25.04.1992 Mrs.Kaliammal Rs.5000/-.
Charge 6:-
In collusion with your branch F.S. Shri Suruli Bommayan, you have disbursed a dairy loan sum of Rs.3100/- instead of Rs.3500/- under II scheme to the following parties.
1.Shri Dhanasekar S/o Gurusamy, Kandakulam Village.
2.Meenal W/o Ramasamy, Kandakulam Village.
Thus you have misappropriated a sum of Rs.400/- from each of the above mentioned borrower in collusion with your branch F.S. Shri Suruli Bommaiyan. The above said dishonest and fraudulent act caused damage to our Bank's image apart from cheating poor loan borrowers.
2. The petitioner submitted his explanation dated 14.12.1995 denying the charges and also pointed out that there has been no complaint either from the suppliers or from the persons, who availed the loan about the alleged payment of illegal gratification. It was further stated that the charge memo did not contain any list of documents relied by the Management. An enquiry officer was appointed to conduct a domestic enquiry into the charges framed against the petitioner. The enquiry officer was in the cadre of Area Manager and he had issued notice on 08.04.1996 fixing the date of enquiry on 25.04.1996. The petitioner was permitted to engage a defence counsel and one Mr.V.Valliyappan, appeared on behalf of the petitioner before the enquiry officer. The first date of enquiry was scheduled on 25.04.1996, on the side of the management 13 documents were marked as Ex.ME.1-13, and the petitioner was permitted to cross examined the management witnesses. However, it is stated that advance copies of those documents were not furnished to the petitioner, which according to the petitioner denied him an effective opportunity to cross examine the management witnesses. The Enquiry Officer by his report dated 28.06.1997 held that charge Nos. 1, 5 & 6 as not proved, and charge Nos. 2 &3 proved and charge No.4 partly proved, on being furnished with the copy of the enquiry officer, the petitioner has submitted a representation dated 30.07.1997 pointing out that the charges have been held proved without any legally admissible evidence. Certain other infirmities were also pointed out. Thereafter, by show cause notice dated 16.10.1997, the petitioner was called upon to show cause as to why the penalty of dismissal from service should not be imposed on him. The petitioner, submitted his explanation dated 12.11.1997 and he was also given a personal hearing on 12.12.1997 by the disciplinary authority. Ultimately, by order dated 19.05.1998, the punishment of dismissal from services was imposed on the petitioner, in terms of Regulation 13 (1) (f) of Pandiyan Grama Bank (Staff) Service Regulations, 1980. Aggrieved by the order of punishment, the petitioner preferred an appeal to the Board of the respondent bank on 11.06.1998. The Board of Directors of the respondent bank, the appellate authority, in its meeting held on 13.02.1999, considered the appeal petition and rejected the same. The said decision of the appellate authority was conveyed to the petitioner by proceedings dated 20.04.1999. The order of dismissal dated 19.05.1998 as confirmed in appeal, as communicated by order dated 20.04.1999 are impugned in this writ petition.
3. The learned counsel appearing for the petitioner assailed the correctness of this order on several grounds. Firstly, by stating that persons, who are required to be examined in support of charge No.2 were not examined, in the statement recorded by the bank, there is no imputation against the petitioner and his name does not find place. The Co-employees, who were also said to have been part of the delinquency were not examined. Further, it was contended that the list of witnesses/documents were not annexed to the charge and only perusal of the same was permitted. Further, the authors of the documents were not examined and entire charge has been held to be proved based upon the evidence of the management witness one Mr.K.Balachandar, who is the Inspector of the bank and that any statement or evidence given by him ought to have been rejected as hear say evidence.
4. Learned counsel appearing for the petitioner by extensively going through the enquiry proceedings would contend that in the absence of any specific allegation against the petitioner, the punishment inflicted on the petitioner is illegal. Further, the learned counsel by relying upon circular No.35/91-92 would contend that the post sanction inspection is the primary duty of the field inspector and therefore, the petitioner ought not to have been a penalised. Finally, the learned counsel would submit that the punishment is grossly disproportionate to the allegation against the petitioner and as such the impugned orders calls for interference.
5. The learned counsel appearing for the petitioner placed reliance on the following Judgment in support of his contentions for the propositions noted hereunder;-
(i) State of Uthranjal and Others Vs. Kharak Singh [(2008) 8 SCC 236], for the proposition that Departmental enquiry should not be an empty formality.
(ii) Nand Kishore Prasad Vs. The State of Bihar & Others [AIR 1978 SC 1277], that suspicion cannot be a basis for punishment.
(iii) Central Bank of India Ltd. Vs. Prakash Chand Jain [AIR 1969 SC 983], that test of perversity in the findings of an enquiry officer is whether it is supported by any legal evidence.
(iv) M/s.Bareilly Electricity Supply Co. Ltd., Vs. The Workmen and Others [AIR 1972 SC 330], for the proposition that though Evidence Act is not applicable to Industrial Tribunals, requirement of proof cannot be dispensed with.
(v) Kumaon Mandal Vikas Nigam Ltd., Vs. Girja Shankar Pant and Others [(2001) 1 SCC 182], regarding scope of interference in factual findings in department enquiries.
(vi) Yoginath D. Bagde Vs. State of Maharashtra and another [(1999) 7 SCC 739] that when there is perversity in the findings of the Enquiry officer, courts can interfere.
(vii) Kashinath Dikshita Vs. UOI and Others [AIR 1986 SCC 2118], effect of non supply of documents.
(viii) Order dated 25.06.2009 in W.P.No.482/1998, that copies of documents to be annexed with charge memo.
(ix) Phulbari Tea Estate Vs. Its Workmen [AIR 1959 SC 1111], regarding effect of non production of witnesses whose statements were recorded.
(x) State of Madhya Pradesh Vs. Chintaman Sadastive Waishampayam [AIR 1961 SC 1623], requirement to afford opportunity to cross examine.
(xi) SHER BAHADUR Vs. UNION OF INDIA AND OTHERS [(2002) 7 SCC 142], regarding the sufficiency of evidence in Departmental proceedings.
(xii) T.Muthusamy Vs. The Revenue Divisional Officer [MANU/TN/7240/2007], regarding non-examination of witnesses.
(xiii)Yeshwant Redkar Vs. Hindustan Petroleum Corporation and another [1997(3) MhLJ 357], regarding the effect of hearsay evidence, and
(xiv) Tamil Nadu Newsprint and Paper Ltd. rep. by its M.D Vs. Rama Damodaran and Another [(2005) 1 MLJ 625], for the proposition that findings should be based on legal evidence.
6. Per contra, the learned counsel appearing for the respondent bank would submit that the bank is a Regional Rural Bank and the knowledge of the borrower is essential in the Integrated Rural Development Programme, which is for upliftment of agriculturist, sheep breeding etc. and the Government is giving subsidy to encourage them. Therefore, it is submitted that it is unlike any other banking transaction in commercial banking sector and the manager is given an important role and the bank staffs are involved in the purchase of the cattle. It is further submitted that the finding recorded by the enquiry officer is not solely based on the statement of witnesses and other materials are available and that each and every charge is independent and the non examination of witness is only for charge No.2. It is further contended that two villagers (MW-7 & 8), had come to attend the enquiry on 03.07.1996 and that were seated in the room opposite the chair of the enquiry officer, but suddenly the witnesses were taken back forcibly by some identified men suppose to have been sent by the petitioner. It is further contended that the management witness K.Balachandar was examined and also cross examined extensively by the defence counsel of the petitioner. It is submitted that there is no prejudice is caused to the petitioner by not annexing the documents along with the charge and sufficient time was granted for perusal and the cross examination was done nearly after five months from the date of perusal of documents.
7. It is further submitted that the petitioner did not plead any prejudice during the enquiry and had cross examined the witnesses on the side of the management. Finally, it is submitted that the petitioner was functioning in a very important post and considering the nature of transaction especially when the amounts are sanctioned to the downtrodden people and Government subsidy, there is sufficient material to hold the petitioner guilty of the charge and the Departmental enquiry cannot be equated to that of a criminal trial. Further, the petitioner did not examine himself and in such circumstances, it has to be held that there is evidence to hold the petitioner guilty and this Court should not interfere with the penalty imposed.
8. The learned counsel appearing for the respondent relied upon the following Judgments in support of his contentions:-
(i) ORISSA MINING CORPORATION AND ANOTHER Vs. ANANDA CHANDRA PRUSTY [1996 11 SCC 600],
(ii)STATE BANK OF PATIALA AND OTHERS Vs. S.K.SHARMA [1996 3 SCC 364],
(iii)WORKMEN OF BALMADIES ESTATES Vs. MANAGEMENT, BALMADIES ESTATES AND ANOTHER [2008 4 SCC 517],
(iv)STATE OF HARYANA AND ANOTHER Vs. RATTAN SINGH [1982 1 LLJ 46]
(v) STATE OF U.P. AND OTHERS Vs. NAND KISHORE SHUKLA AND ANOTHER [1996 2 LLJ 672].
9. I have carefully considered the submissions on either side and perused the materials available on record.
10. Admittedly, the petitioner was a manager in a Rural Bank, which has been extending facilities to the agriculturist and there is the Government subsidy on such loans, therefore as rightly pointed out by learned counsel appearing for the respondent, the role, duties and responsibilities of the petitioner as manager of such Rural Bank cannot be equated to that of a manager in the commercial banking sector. It has been stated that the purchase of the animals or any other agricultural implements for which loan is sanctioned is with the knowledge of the bank and the bank is involved in the process of purchase and the staff of the bank cannot disown their responsibility as regards the animals or things purchased out of the loan amount sanctioned. Therefore, the charge against the petitioner ought to be examined in this factual backgrounds.
11. Out of the six charges framed against the petitioner, three charges were not proved and charge No.4 was partly held proved and charge Nos.2 & 3 were proved. The allegation in charge No.2 is at the time of disbursement of the loans, the petitioner in collusion with one Mr.Suruli Bommaiyan, branch F.S and Naganathan, bank cashier demanded and accepted 10% of the total loan amount as illegal gratification. Likewise, Charge No.3 is regards failure to conduct post sanction inspection, Charge No.4 relates to an adjustment made in the loan account to close another loan amount availed for a different purpose.
12. Thus, it is to be noted that these three charges are quite serious in nature. The petitioner has denied the charges and thereafter the enquiry officer was appointed and the petitioner was also represented by a defence assistance. In respect of charge No.2, the Management produced Exs. M.E.-8 and M.E. 8/1 to 12 and examined MW-1. According to the report of the enquiry officer MW-7 & 8, who were the persons, who have given statements as regards the allegations contained in charge No.2. Though MW 7 & 8 were present on 03.07.1996 for appearing in the enquiry the allegation is that they were forcibly taken back by some unidentified men suppose to have been sent by the petitioner.
13. That apart, one of the loanee had deposed that he was compelled to deposit of Rs.2,000/- for sanction of the loan. It is contended that from M.E.8/1 to 12, it is evident that a part of the loan amount was remitted to the SB account of the respective beneficiaries and which was in turn transferred to the loan account on a later date and the remittances shown in the ME-3 are only part of the loan proceeds thus re-credited.
14. The explanation of the petitioner was that since the loans were disbursed by pay order, there could not be any possibility for deduction. It is noted by the enquiry officer except for a few accounts, in all accounts the pay order has been realised at Melekodumalai branch itself through the SB account of the supplier and at the time of encashment of the pay order, the borrowers visited the branch and along with the supplier and their signatures were obtained in the SB remittances challan and ME 8/3 and 4 which goes to prove that part amount was deducted and remitted to their SB accounts.
15. Therefore, the enquiry officer, after taking into consideration the above facts and after considering the evidence of Balachandar, who was the Inspector of Bank, who had recorded 12 statements of loanees, came to a conclusion that the loanees were forced to give 10% of the loan amount to the branch officers, which was deducted at the account itself by the cashier. The enquiry officer has also recorded that the petitioner has orally accepted that sharing of the amount received from the loanees prevailed in the branch. Therefore, the enquiry officer concluded that in view of the preponderancy of probabilities, the charges is deemed proved. In respect of charge No.3, which relates to non conduct of post sanction inspection, the enquiry officer recorded the statement of the petitioner, who admitted that he could not conduct frequent post sanction inspection and followup advance, due to paucity of time as he was constrained to confine his activities with branch routine. The conclusion of the enquiry officer is that he ought to have been conducted such inspection and hence held the charge has proved. In respect of charge No.4, the enquiry officer concluded that the allegation recording impersonation is not proved, but the other limb of charge, namely, the crop loan sanctioned to E. Ramaiya was adjusted to dairy loan of Shri. Ammavasai and the proof of such adjustment is found in ME-2 at page No.8 and therefore that part of the charge was held as proved.
16. Therefore, In my view, this is not a case of no evidence in respect of the allegation made against the petitioner. In fact the Hon'ble Supreme Court in SHER BAHADUR V. UNION OF INDIA AND OTHERS [2002 7 SCC 142] while construing the expression sufficiency of evidence held as follows:-
"7. It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him."
By applying the said test, I am of the view that there is enough evidence, which links the charged officer with the misconduct alleged against him. The enquiry officer after going through the entire oral and documentary evidence had recorded factual findings supported by reasons to hold that the charges are proved. The evidence of the management witness Mr.Balachandar cannot be stated to be a hearsay evidence, he is the Inspector of the Bank, who has conducted the enquiry and recorded statements from the loanees and in fact two of the loanees were present on 03.07.1996 before the enquiry officer, but were forcibly taken away for reasons best known. Hence, the decision relied on by the learned counsel appearing for the petitioner in Yeshwant Redkar Vs. Hindustan Petroleum Corporation and another, [1997 (3) MhLJ 357] and TamilNadu Newsprint and paper Ltd Vs. Rama Damodharan and Another, [(2005) 1 MLJ 625] does not support the case of the petitioner, since it cannot be stated in the instant case that the charges have been held proved based on hear say evidence.
17. On perusal of the enquiry proceedings, it cannot be stated that it was an empty formality and in fact the petitioner had the assistance of a defence counsel, who was an officer of the bank in the administrative wing, presumably well-versed in the conduct of such enquiries. Therefore, the decision relied on by the learned counsel in 2008 8 SCC 236, AIR 1969 SC 983, 2001 1 SCC 182 and 1999 7 SCC 739 would not render assistance to the case of the petitioner, since on facts, it is held that the petitioner was afforded sufficient opportunity in the Departmental enquiry the management has placed oral and documentary evidence in the enquiry proceedings, the management witness was cross examined by the petitioner's defence assistance and the petitioner participated in the Departmental proceedings without any demur and did not plead any prejudice caused to him.
18. Further, it is to be noted that the petitioner neither examined himself nor let in any other oral and documentary evidence in support of his contention. Therefore, in my view the plea regarding the infirmities in the Departmental enquiry and such other allegations are a sheer after thought.
19. As regards the contention that the documents were not annexed along with charge sheet, but only perusal was given which according to the petitioner denied him reasonable opportunity. This contention has to be rejected on more than one ground, since this was not pleaded at the time, when the enquiry was conducted which would establish that the petitioner was not prejudiced by the said act of the management. It is seen that on 25.04.1996, the petitioner was permitted to peruse the documents. Thereafter, the case was posted on 05.05.1996, subsequently adjourned to 08.09.1996 and the cross examination was done by the petitioner only on 16.09.1996. Thus, it is clear that no prejudice was pleaded by the petitioner for almost five months nor during the enquiry proceedings. Hence, I hold that failure to annexure to copies of the documents along with charge memo has in no way prejudiced to the petitioner. Therefore, the decision relied on by the petitioner in AIR 1986 SC 2118 does not render any assistance to the petitioner case.
20. As rightly pointed out by the learned counsel appearing for the respondent that in domestic enquiry strict Rules of evidence may not apply in a State of Haryana and another Vs. Rattan Singh case, the Hon'ble Supreme Court held as follows:-
"4........ The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldy wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic Tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the Court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, inspector of the Flying Squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground.
5. Reliance was placed, as earlier stated, on the non-compliance with the departmental instruction that statements of passengers should be recorded by inspectors. These are instructions of prudence, not rules that bind or vitiate in the violation. In this case, the Inspector tried to get the statements but the passengers declined, the psychology of the latter in such circumstances being understandable, although may not be approved. We cannot hold that merely because statements of passengers were not recorded the order that followed was invalid. Likewise, the re-evaluation of the evidence on the strength of the conductor's testimony is a matter not for the Court but for the administrative Tribunal. In conclusion, we do not think the Courts below were right in over turning the finding of the domestic Tribunal." (emphasis supplied)
21. On the question of the requirement to examine the loanees, two of whom who were said to have been present for the enquiry, but forcibly taken at the instance of petitioner, it is useful to refer to the Judgment of the Hon'ble Supreme Court in the Orissa Mining Corporation, as referred above held as follows:-
"6..... The charge was that he made certain false noting on account of which loans were disbursed to certain ineligible persons. The respondent's case was that those noting were based upon certain documents produced and certain records maintained by other employees in the office. In such a situation it is for the respondent to establish his case. The department is not expected to examine those other employees in the office to show that their acts or records could not have formed the basis of wrong notings made by the respondent."
This decision could be applied to the facts and circumstances of the case and it could be safely held that merely because the loanees were not examined will not viziate the enquiry itself.
22. The Hon'ble Supreme Court in the case of State Bank Vs. Tharankan Banarji, referred above, which also related to delinquency of bank official held that the customer of the bank need not be involved in a domestic enquiry as such a course would not be condusive to proper banker customer relationship. This is more so in the instant case, since the loanees are downtrodden people, who have approached of the bank for grant of loan, since there is a subsidy given by the Government.
23. At this stage, it would be relevant to refer to the decision of the Hon'ble Supreme Court in the case of State Bank of Patiala and others Vs. S.K.Sharma, [(1996) 3 SCC 364], in which the Hon'ble Supreme Court summarized the principles with regard to disciplinary enquiries and orders of punishment imposed by the employer on the employee. The Hon'ble Supreme Court in paragraph 33 of the Judgment held that such Departmental enquiries should not be set-aside automatically and the Court should enquire whether the provisions violated is of substantive nature or procedural in character, a substantive procedure has normally to be complied with and violation of any and every procedural provision cannot be stated to automatically viziate the enquiry and the test is one of prejudice and the only obligation is to be observed the principles of natural justice.
24. Considering the facts and circumstances of the case, I find that no violation of any Rule or Regulation, which is of a substantive nature has been pointed out. The complaint was regarding the procedural aspect relating to non supply of documents along with the charge sheet. This of course did not prejudice, the petitioner from participating in the domestic enquiry and no prejudice was pleaded. That apart the witness on the side of management has been examined and has been cross examined by the petitioner with the help of his defence assistance.
25. Thus, there has been substantial compliance of the principles of natural justice and the petitioner has been afforded reasonable opportunity to defend himself. There is no perversity in the findings of the enquiry officer and both the disciplinary authority and appellate authority have taken into consideration all relevant facts and passed the order of punishment. On the question of proportionality of punishment, it has been stated in the order passed by the appellate authority, that the petitioner charged sheeted and suspended earlier on 02.07.1988 and the charges were serious in nature which also pertain to a loan transaction and a punishment of stoppage of two annual increments with cumulative effect was awarded on 12.12.1989. Thus, I find that the punishment imposed is not disproportionate to the proven charge of misconduct.
26. Hence, for all the above reasons, I find that there are no merit in the Writ Petition and the same is liable to be dismissed. No costs.
.12.2009 Index : Yes/No Internet:Yes/No pbn To Pandiyan Grama Bank represented by its Chairman, No.72, Kandapuram Street, Virudhunagar.
T.S.SIVAGNANAM J pbn Pre-Delivery in W.P.No.19708 of 1999 .12.2009