Allowed

M.Swaminathan v. the Union of India

Madras HC17 Sept 2014WP/11456/2008

Case brief

AI extract

What is this about?

A bank manager challenged dismissal for irregular loan sanctions and personal financial transactions. The Court held the inquiry defective and dismissal inappropriate, quashed the disciplinary, appellate and review orders, and directed restoration to the original position for calculating service benefits through superannuation.

What did the court decide?

Dismissal, appellate and review orders quashed; restoration to the original position directed for calculating service benefits as if in service until superannuation.

M.Swaminathan Vs the Union of India — Service and Employment | Madras HC (2014)

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED:17/ 09 /2014

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CORAM

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THE HONOURABLE MR.JUSTICE C.S.KARNAN

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W.P.No.11456 of 2008

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Mr.M.Swaminathan ... Petitioner
Vs.
1.The Union of India,
Rep. by its Secretary,
Finance Department,
New Delhi.
2.The General Manager,
Circle Office, Canara Bank,
Bhopal.
3.The General Manager /
Disciplinary Authority,
Canara Bank,
No.112, J.C.Road,
Bangalore - 2.
4.The Executive Director,
Canara Bank,
Head Office, No.112,
J.C.Road, Bangalore-2.
5.The Chairman and Managing Director,
Canara Bank, Head Office,
No.112, J.C.Road, Bangalore-2. ... Respondents
(R4 and R5 impleaded as per
order dated 20.10.2010
in M.P.No.2 of 2010 in W.P.No.11456 of 2008)

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PRAYER: Writ Petition filed under Article 226 of the Constitution of India for a Writ of Certiorarified Mandamus, to call for the records pertaining to the order passed by the third respondent in his proceedings Ref.No.IRS DP DC 5262 of 2005, dated 23.12.2005 as confirmed by the appellate authority, the fourth respondent, in his proceedings No. Nil, dated 12.01.2007 and confirmed by the original authority on behalf of the reviewing authority in his proceedings No.IRS DP 7256 CS, dated 14.03.2007 and quash the same and direct the respondents to reinstate the petitioner with all the backwages and confer all the consequential benefits.

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(Prayer amended as per order dated 12.11.2010

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M.P.No.3 of 2010 in W.P.No.11456 of 2008)

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For Petitioner : Mr.C.Selvaraj, Senior Counsel
For Mr.K.Govindan
For Respondents : No appearance for R1
Mr.T.R.Sathya Mohan for R2 to R5
- - -
O R D E R
The short facts of the case are as follows:-

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The petitioner submits that he had joined as a Clerk in Shanarapatty Branch of Canara Bank on 07.05.1979. Thereafter, he had been promoted as an Officer within 8 years of his service. Due to his prompt and diligent service, he had been promoted as Manager. Thereafter, he had rendered sincere service to the Bank during the last three years as Manager. In total, he had completed 25 years of service with Canara Bank. After joining as a Clerk at the Branch of Canara Bank, Shanarapatty, he had tried in all spheres to upgrade the Bank into "A" Grade category. Thereafter, he had been transferred to Karikal Branch, where, he used his maximum skill in Marketing and Internal Book tallying etc. Hence, he received the appreciation of his superiors, due to his devotion to duty and pleasant manners to the Bank customers. After seeing his good performance, his colleagues, due to their jealousy of his management, entertained malafide intention against him. As a result of their vengeance and due to their filing of anonymous petitions, he was transferred to Panchakola in the State of Punjab. Due to the adverse transfer meted out to him, the Schedule Caste and Schedule Tribe Association intervened in this matter and got the transfer order cancelled. Subsequently, he had been transferred to Mukkanamalaipettai.

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The petitioner additionally added that due to his dedicated service, the said Mukkanamalaipettai Branch was upgraded to 'A' - Grade category. Hence, the superiors have awarded him cups and medals in various fields. In deposit mobilization contest, he secured first prize of Rs.1,000/- in the rural category. The Higher Officers of the Bank have appreciated his loyal service and put him up to undergo NABARD Training Programme at Mangalore. Observing his good performance and gaining the appreciation of his superiors, the then Manager, through sheer jealousy made an anonymous petition and arranged his transfer to Kanpur. The Head Officer of Canara Bank intervened in this matter and re-transferred him to Birhana Branch, and at this point of time, the Birhana Branch status was "C" Grade and also classified as a non performing Bank. Nevertheless due to his sincerity and hard work, the said Branch had been upgraded to "B" Grade. Furthermore, within six months, he had mobilized Rs.1 Crore 18 Lakhs to the said Branch. In view of his outstanding service, the Regional Head Office transferred him to his native place i.e., Nagapattinam, wherein he once again rendered maximum good service with enthusiasm and without any blemish whatsoever, where he received the appreciation from the customers and general public. Further, he had saved the Branch from time barred A.O.D accounts by duly obtaining the signatures from the borrowers. In this manner, he had saved several lakhs of rupees to the Bank, and in all this endevaour, he had worked for extended hours in his job at the Bank.

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The petitioner further submits that he had been transferred to a nearby branch at Thevur, wherein, he had joined as an Officer, and at this point of time, the condition of the Bank was in a shabby state. However, due to his untiring efforts, he had rescued the Branch by mobilizing Rs.69 Lakhs, over and above the stipulated target fixed by the Regional Officer. After recognizing that the Thevur Branch was literally resurrected into an ongoing successful branch, the Regional Office was pleased to issue him a "red salute". The Thevur Branch was upgraded from B to B Plus category. After recognizing his excellent performance, the then Executive Officials, viz., Mr.Anbalagan and Mr.Lakshminarayanan have made their personal visits to the Bank and showered appreciation upon him and recorded this appreciation into the " Visit Book" maintained by the Branch of the said Bank. Besides in the Regional Review Meeting at Trichy, he was congratulated by the higher officials in the presence of one and all. Once again, an animosity creeped against him; therefore, in order to tarnish his good name an anonymous petition was levelled against him which resulted in his transfer to Rewa of Bhopal. Thereafter, he was transferred from Rewa to Kohe-Fiza, Bhopal.

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The petitioner additionally submitted that on 01.10.2002, he had joined at Kohe-Fiza Branch and the said Branch was opened two years prior to the date of his joining the Branch and it was classified as a SSB Branch. The Kohe-Fiza area is more or less a

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developed area and 20 years old Thena Bank, State Bank of Indore, UTI Bank and some ATM Branches were located in that area. His superiors directed him to upgrade the said Branch. Accordingly, he developed and mobilized maximum funds amounting to Rs.1.69 Crores through the help of one Personal Assistant to the Commercial Tax Minister of the State. The petitioner was given a projection to accomplish a deposit of Rs.4 Crores and thereafter, the Regional Office has fixed the deposit figure of Rs.5 Crores and advance of Rs.1.6 Crores and the same was achieved by him despite him not having any knowledge of the Regional language in the State. As such, he had popularized the Bank's Scheme and thereby increased the number of account holders and established the Bank as a firm commercial success. While so, there was a Managers Conference held at Bhopal. At the Conference, the General Manager Mr.Prakash Mallaiya appreciated him for his tremendous performance and there was loud appreciation from the audience as well. At this stage, he has received charge sheet No.IRS DP DC CS 11/2005, dated 02.03.2005. On the said charge sheet, an "eye-wash" inquiry was conducted and on the side of the Bank 8 witnesses were examined as M.W.1 to M.W.8 and Exs.MEX-1 to MEX-551 were marked and as a result, he was dismissed from service by the third respondent herein / The General Manager, Disciplinary Authority, Bangalore in his Reference No.IRS DP DC 5262 2005, on 23.12.2005. Thereafter, the petitioner has filed an appeal before the fourth respondent / appellate authority, who in turn, through his proceedings in No. Nil, dated 12.01.2007, confirmed the same. Thereafter, the review had been filed by the petitioner before the Reviewing Authority / Chairman and Managing Director, Canara Bank, the fifth respondent herein, who had rejected his request for review of punishment on 14.03.2007 in his proceedings No.IRS DP 7256 CS, and confirmed the order of the appellate authority. Hence, the petitioner has filed the above writ petition to quash the order in Ref.No.IRS DP DC 5262 of 2005, dated 23.12.2005, passed by the third respondent and confirmed by the appellate authority, the fourth respondent, in his proceedings No. Nil, dated 12.01.2007 and confirmed by the original authority on behalf of the reviewing authority in his proceedings No.IRS DP 7256 CS, dated 14.03.2007 and quash the same and direct the respondents to reinstate the petitioner with all the backwages and confer all the consequential benefits.

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The second respondent / the General Manager, Circle Office, Canara Bank, Bhopal has filed a counter statement on behalf of third respondent / The General Manager, Disciplinary Authority, Bangalore and on behalf of him has resisted the above writ petition. The second respondent stated that the petitioner was working at the SSB, Koh-e-Fiza Branch of the respondent-Bank, wherein, he committed various misconducts / irregularities which are very serious in nature and consequent to which, he was suspended from service and a charge sheet was issued to him. A Departmental enquiry was held at Delhi and Bhopal and the order of dismissal was passed from Bangalore by the third respondent herein. In the circumstances, the second respondent

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submits that as no cause of action has arisen within the jurisdiction of this Court, the petitioner herein is not entitled to seek relief prayed by him in the above writ petition on this ground alone and hence, the writ petition is liable to be dismissed in limini.

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The second respondent further submits that the service rendered by the petitioner was only normal and routine and not as claimed by him in his contention that he had extended his maximum services. The upgradation of a Bank's Branch comprises the all round performance of the Branch like deposits, advances, internal control, etc and the same is not possible due to efforts of one employee only and that too employed in clerical grade. Most of the averments made in the affidavit filed in support of the writ petition revolves around the self centric praise of the petitioner rather than making out any case for the relief claimed. Further, the petitioner has stated that the appreciation and admiration has brought jealousy to his colleagues which led to anonymous complaints against him. The petitioner has blamed the jealousy of the colleagues wherever he was posted, which raised the question about the genuineness of the claim of the petitioner. Therefore, the said allegation is denied by the respondents'-Bank.

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The second respondent further submits that an officer employee of the Bank, who has completed three years out of his home state becomes eligible to be posted at his native place, as per transfer policy of the Bank. Hence, the posting of the petitioner at native place cannot be said to be by way of appreciation, as claimed by him. Further, the claim that the petitioner saved the Bank to several lakhs of rupees by obtaining signatures from borrowers in A.O.D. is untenable and is denied. As a responsible Officer of the Bank, it is his bounden duty to do so in the interests of the Bank and as such, he cannot claim it as a matter of credit for himself. The second respondent further submits that it is pertinent to mention that as per system of the Bank an executive has to visit each Branch under his administrative control, once in six months to review the performance of the Branch. The second respondent further submits that the increase in the number of account holders while posted as Manager of Kohe e Fiza, Bhopal Branch as averred by the petitioner is of no use when the increase in the number of the loan accounts culminated into the irregularities committed by the petitioner at large scale by throwing systems and procedures of the Bank to the winds and blatantly ignoring the interest of the Bank thereby putting the Bank to the risk of huge financial loss. The second respondent further submits that after the irregularities committed by the petitioner in sanctioning the loan in large number, came to be known, a charge sheet No.IRS DPDCCS 11/2005, dated 02.03.2005 was issued to him and the charges levelled against the petitioner depicts the gross misconduct on his part which shows that the petitioner failed to discharge his duties with honesty and integrity. The charges levelled in the said charge sheet are as under:-

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"Charge - 1

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Sri M.Swaminathan (28611) has been working as a Manager at our SSB, Koh-e-Fiza, Bhopal Branch since 01.10.2002 and while working so he was placed under suspension pending disciplinary action, vide proceedings No.IRS DP DC 2305 2004 dated 30.07.2004 served upon him on 03.08.2004.

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While working so, Sri M.Swaminathan as Branch In-charge has granted amongst others, 403 loans under the Retail Loans Schemes. The majority of the loans sanctioned by him have shown a quick mortality and within a span of one year about 85% of the loans so sanctioned have become NPA. Out of the total advance of Rs.141.74 lakhs, almost Rs.95.08 lakhs have become NPA, besides Rs.20.00 Lakhs being classified under Special Watch Category.

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Serious irregularities on the part of Sri. M.Swaminathan, Manager have been observed in sanction of the above loans, which clearly indicate that Sri M.Swaminathan not only violated the laid down norms but also involved a middleman/outsider and connived with the intending borrowers in making available bank finance to them, for which they were otherwise not eligible.

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(i) In majority of the above loans, the IT Returns produced by the applicants have an unvarying uniformity to the extent that the income declared for male borrowers was between Rs.48,000/- and Rs.50,000/- and for female borrowers was between Rs.78,000/- and Rs.80,000/- and which were so arranged to ensure that the declared level of income is exempted from payment of tax. By accepting such financial papers and granting loan there-for, Sri M.Swaminathan acted in connivance with the persons who produced such manipulated papers for the sake of getting a loan.

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(ii) In majority of the above loans, the IT Returns, produced by the applicants, there is another similarity that the returns were filed with the I.T.Department 6 to 10 days before applying / availing the loans. Sri M.Swaminathan by granting loans disregarding and ignoring this uncommon streak of similarity in the IT return has clearly acted in connivance with the persons who filed such manipulated papers for the sake of getting a loan.

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(iii) In many cases either the income of the applicant / co-obligant was not mentioned in the loan application from or no proof of income was obtained. Sri M.Swaminathan by his act of granting loans without getting the regular income of the borrower certified, made available Bank's Funds to non-eligible persons and acted in connivance with them in raising loans.

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(iv) In most of the cases, the details of asset/liability of the co-obligants were either not filled

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in the loan application under requisite column or no proof of the same was obtained. Sr.M.Swaminathan by not ensuring certificate of the Net-Worth of the parties granted loans against co-obligation of the persons whose credit worthiness were not certain, thereby exposed the Bank to financial risk.

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(v) In many cases the loan applications are filled up in the handwriting other than the borrower / Branch officials and several quotations / bills / vouchers are having identical handwriting. It is evident that someone an outsider was working at the behest of Sri M.Swaminathan, who by encouraging the processing of the proposals involving outsiders has misused his official position and has exposed the Bank to financial risk.

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(vi) In most of the loan papers, it is certified that the execution of the loan documents by the borrowers was witnessed amongst others by Sri Fazal Azhim Khan, Clerk of Smt.Madhu Kushalani and Clerk of Sri P.N.Chouhan, Officer, however all the three have denied having witnessed the execution of any of the given documents or having met the borrowers. Sri M.Swaminathan by incorporating false certificate in the loan papers not only violated the laid down norms but also misused his official position in the process of granting loans to the borrowers who have not come to the bank in the normal course.

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(vii) Almost all the loans have been sanctioned towards purchase of TV, washing machine, refrigerator, C.D. player etc., irrespective of requirement / status of the parties. Sri M.Swaminathan by his act of sanctioning loans in a stereo-type manner acted in connivance with the parties in making available bank finance for one cause or other.

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(viii) Most of the quotations / bills / vouchers, against which loans were sanctioned and proceeds were released by way of DDs, are found to be of ' Non Existing Firms' or the firms which were not dealing in the items for which the quotations were submitted. Sri M.Swaminathan by accepting quotations of non-existing firms and that of not dealing in the declared item acted in utter connivance with the parties who submitted such bogus / fake quotations / bills /vouchers for the sake of availing the bank finance, thereby, exposed the bank to serious financial risk.

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(ix) In most of the cases "Mutual Co-obligation" among the family members, husband wife, one borrower to another borrower etc., has been accepted; thereby the very purpose of co-obligation is defeated. Sri M.Swaminathan by accepting such collateral security not only favoured the parties in getting the bank finance but also exposed the bank to financial risk.

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(x) In respect of loans sanctioned to salaried persons, the maintenance of salary account with the Branch or obtention of salary deduction mandate was not ensured, thereby the regular repayment was not ensured. Sri M.Swaminathan by his acts of granting loans to the salaried persons who have not maintained salary accounts with the Branch or who have not got the salary deduction mandate registered with their employer, not only violated the laid downs norms but also granted loans to those persons whose employment / regular income / repaying capacity was not certified and in the absence of either of the above two conditions, thereby the bank was exposed to financial risk.

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(xi) The end-use of loan proceeds was not ensured in most of the cases as either the asset has not been created at all or only a part of the items mentioned in the bill were purchased but in both the cases the full or part proceeds of the DDs, issued in favour of the dealers have been found to be got en-cashed by the borrowers by taking cash after depositing the DDs with the payee dealer. Sri M.Swaminathan went on granting loans despite the fact that the parties, instead of getting the items purchased, were getting the amount encashed and were mis-utilizing the loan facility, which was well within his knowledge as confirmed during investigation, by the local dealers with whom he was dealing. He has not only violated the laid down norms and misuses his official position but also connived with the parties who resorted to such un-healthy practices.

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(xii) One Shri Harish Taleja alias " Harisha Bhai" as popularly known in the area, was well acquainted with Sri M.Swaminathan, Manager, and was moving along with him in getting / arranging quotations / bills / vouchers from various dealers. The said "Harish Bhai" reportedly got printed Bill Books of various dealers and was found using the same for raising loans from our Koh-e-fiza Branch. He was also approaching the dealers with the DDs issued by the Branch and was getting the same encashed. In many cases the I.T. Returns produced by the borrowers were also arranged by him. The involvement of an outsider was encouraged by Sri M.Swaminathan to the maximum extent and the said middle man was instrumental in getting sanctioned most of the loans at our Koh-e-fiza Branch.

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The detailed irregularities / lapses, account wise, observed on the part of Sri. M.Swaminathan, Manager are given in the charge sheet issued to him, a copy of which was enclosed along with the charge sheet.

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CHARGE-II

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A good number of abnormal transactions have been noticed in the accounts maintained by Sri M.Swaminathan at Koh-e-Fiza Branch. Sri M.Swaminathan has been maintaining, amongst others, the following accounts at our Koh-e-Fiza, Bhopal Branch:

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SB ACCOUNT No.384 and 444

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OD ACCOUNT No.9 and 15

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An investigation has revealed that 24 DDs in all amounting to Rs.4,67,397/- as detailed in Annexure-1 to this charge sheet, have been purchased by him between 27.11.2002 and 26.04.2004 by debiting to his above SB/OD accounts. Further, as many as 23 DDs in all amounting to Rs.1,84,550/- as detailed in Annexure-2 to this charge sheet, have been purchased by him between 09.12.2002 and 06.08.2003 by paying cash.

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It is also observed that one Sri Harish Talreja alias Harish Bhai R/o New-B-38/304, Bhairagarh, a local man at Koh-e-Fiza, Bhopal, well acquainted with him, and who allegedly acted as a middleman and was instrumental in getting a number of loans sanctioned through him, had purchased / got prepared 5 Demand Drafts from United Commercial Bank, Marvadi Road, Bhopal, payable at Nagapattinam, in all amounting to Rs.95,000/- drawn in favour of Sri M.Swaminathan and his family members.

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Further, it is observed that Sri M.Swaminathan has deposited in all Rs.72,200/- in cash in his SB & OD accounts maintained at Koh-e-Fiza Branch, between 31.12.2002 and 10.03.2004.

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It is further observed that 5 local cheques drawn / received in his favour were discounted under LCDB and the proceeds there-against, in all amounting to Rs.34,836/-, was given credit to his accounts as detailed in Annexure 3 to this charge sheet.

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Out of the above, a cheque No.419925 dated 10.04.2004 for Rs.14,836/- was discounted by him twice. On the first occasion the proceeds were credited to his OD account No.9 on 11.04.2004 by debiting "BP-CDB" and once again the same cheque was lodged under LCDB on 13.04.2004 and the proceeds were given credit to his SB A/c No.444 by debiting 'BA-BAR CLG.-16/04' (The total BAR amount being Rs.1,39,725.12). The said double credit was rectified only on 18.04.2004 when the amount of Rs.14,836/- was recovered from his SB A/c.No.444 and given credit to BPCDB.

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Once again, five cheques in his favour were also discounted under BP-CDB on various dates as detailed in Annexure 4 to this charge sheet.

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On 11.04.2004 the total liability under CDB in his name stood at Rs.24,836/- as detailed below, which was more than

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his one month salary and hence more than the eligibility:

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a) A cheque of Rs.10,000/- drawn on IOB, Nagapatinam discounted on 05.04.2004 and realized on 13.04.2004.

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b) A cheque of Rs.14,836/- drawn on HDFC Bank, Arera Colony, Bhopal discounted on 11.04.2004.

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Besides the above, an outstanding debit balance of Rs.31,185/- under Sundry Assets (SATA) was outstanding on 19.07.2004, which included an amount of Rs.13,685/- towards excess TA drawn. Sri M.Swaminathan did not repay the excess TA advance drawn amount to the extent of Rs.13,685/- on 09.06.2003 i.e., the last date on which he submitted his LFC Bill.

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Sri M.Swaminathan (28611), Manager by his above acts failed to adhere to the laid down norms with regard to discounting of cheques and advance drawn against TA besides he got issued large number of DDs from his accounts for more than the value of Rs.6.51 lakhs which was much beyond his declared income. He has also misused the DD facility by getting issued the DDs at par. He also failed to report the transactions exceeding Rs.25,000/- to the Competent Authority as envisaged under Regulation 20(4) of Canara Bank Officer Employees' (Conduct) Regulations 1976.

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CHARGE-III

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Our Cancard Division Bangalore raised a BAR on our Rewa Branch on 20.11.2002 for Rs.45,403.28 comprising amongst others the FTVs pertaining to our Koh-e-Fiza Branch as detailed below:

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Visa Card Visa Card Amount of No. Holder FTV 45436330107084587 Sri.M.Swaminathan Rs.10,315/45433633010698219 Sri.Rohit Saxena Rs.10,315/-

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As the billing was computerized Cancard Division Bangalore requested our Rewa Branch to respond to their BAR by raising the BARs on KHO-E-FIZA Branch for the above two FTVs vide their letter No.P&DW / CCD / VISA / ACTS / FTV / HRM/2002, dated 11.12.2002. Accordingly Rewa Branch responded to the BAR of Cancard Division by simultaneously raising Bar No.163/02 for Rs.10,315/- and BAR No.164/02 for Rs.10,315/- on our Kohe-Fiza Branch. The BAR No.163/02 pertained to Sri Rohit Saxena and the BAR No.164/02 pertained to Sri M.Swaminathan. The said BARs were dispatched by Rewa Branch on 28.12.2002 in one cover through Courier.

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The BAR No.163/02 for Sri Rohit Saxena was responded by KOH-E-FIZA Branch vide IBA No.06, dated 06.01.2003 and the entry under 'BA' was rounded off at Rewa Branch on

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15.01.2003. The said IBA was signed by Sri M.Swaminathan. However, the BAR No.164/02 for Sri M.Swaminathan was not responded along with the BAR No.163/02 even though both the BARs were sent in one cover. Once again the duplicate of the BAR No.164/02 sent by Rewa Branch on 29.09.2003 was also not attended to/responded by KHO-E-FIZA Branch. Our Rewa Branch informed that they have reminded Koh-e-Fiza Branch on several occasions to respond the BAR No.164/02 over phone. Subsequently, Rewa Branch sent a copy of the duplicate BAR to IC & IF Section, Circle Office, New Delhi on 20.11.2003. Only after intervention of Circle Office, the BAR No.164/02 dated 28.12.2002 for Rs.10,315/pertaining to Sri M.Swaminathan was responded by the Branch vide IBA 0393 dated 05.12.2003 i.e., after keeping the BAR pending for more than 11 months. A BAR inward register to follow up the un-responded BARS was not maintained at our Koh-e-Fiza Branch during his tenure.

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Sri M.Swaminathan, has by his above act of deliberately not responding a BAR pertaining to his own Cancard FTV and holding the same unattended for a long time has derived undue benefit and misused his official position, which touches upon his integrity and honesty.

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CHARGE-IV

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On 27.11.2002, Sri M.Swaminathan has availed a DPN loan of Rs.17,500/- under loan No.DPN/IPO-2/02, for subscribing Initial Public Offer (IPO) of Canara Bank for 500 shares. The said loan was sanctioned by the Regional Office, Bhopal. The repayment schedule fixed for the said loan was in 36 equal monthly installments @ Rs.577/- per month to commence with from January 2003 from monthly salary payable to Sr.M.Swaminathan. The repayment was not affected by deducting the EMI from his salary instead the installment amount was transferred from his SB account according to his convenience as he remitted Rs.1,587/- and Rs.1,567/- to the loan account on 23.04.2003 and 31.05.2003 by debiting his SB account maintained with the Branch.

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It is observed from the 'salary slip' of Sri M.Swaminathan that there was no deduction on account of the said loan and that he failed to send the updation sheet for effecting the recovery of EMI from the salary to the Salary Disbursing Authority at Establishment Cell, Circle Office, Delhi. He has thus failed to ensure that a monthly installment is deducted from the salary every month and given credit to the loan account.

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Further, it is observed from the Demat Shares Party Pool Balance Account issued by Karvy Stock Broking Ltd., Bhopal that he had disposed off 300 shares through the

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Karvy Consultants and the sale proceeds has been received by him by way of cheque bearing No.419827, dated 30.03.2004 for Rs.25,944/- and by cheque No.419925 dated 10.04.2004 for Rs.14,836/- both the cheques being drawn on HDFC Bank towards the sale proceeds of 200 shares and 100 shares respectively. The proceeds of these cheques have not been given credit to his DPN Loan Account as stipulated in the same. The remittance made by him in the Loan Account was insufficient and the account was showing overdue. Till June 2004, the total amount repaid should have been Rs.10,386/as against Rs.6,654/- given credit by him to his loan amount.

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CHARGE-V

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On 04.03.2003, Sri M.Swaminathan had availed a Festival Advance of Rs.20,400/-. The entire advance was required to be repaid in 10 equal monthly installments @ Rs.2,040/- per month starting with April 2003 out of the salary payable to him. He however failed to remit the monthly installment as per norms. The first installment though paid on 24.04.2003 yet the subsequent installments were not deducted from the salary month-wise and instead he arranged remitting two installments of Rs.8,160/- and Rs.10,200/- in lump sum on 31.08.2003 and 30.11.2003 respectively by debiting his OD account No.9 maintained with the Branch and cleared the entire outstanding.

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It is observed from the 'salary slip' of Sri M.Swaminathan that there was no deduction on account of the said advance and he failed to send the updation sheet for affecting the recovery of EMI from the salary to the Salary Disbursing Authority at Establishment Cell, Circe Office, Delhi. He has thus failed to ensure that a monthly installment is deducted from the salary every month and given credit to the ' SA-FA', hence he concealed the fact of availing the advance by misusing his official position.

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Sri M.Swaminathan has thus failed to adhere to the laid down norms with regard to the Festival Advance and failed to ensure that the monthly installment is deducted from the salary every month and remitted to 'Sundry Assets-Festival Advance' on the salary day itself. He has thus violated the laid down norms and derived undue benefits by misusing his official position.

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CHARGE-VI

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On 13.04.2003, Sri M.Swaminathan has sanctioned a vehicle loan of Rs.40,500/- in his own name for purpose of a Motorcycle under Loan No.LHV(O)-63 within his sanctioning powers. The repayment schedule fixed by him for the loan

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was Rs.450/- per month for 84 months whereas the same should have been Rs.675/- per month per EMI charge applicable for vehicle loans to the Officer Employees. The stipulated / effected EMI @ Rs.450/- would fetch only Rs.37,800/- within 84 months of repayment period, which would not be sufficient to cover even the principal amount of the loan. He has thus fixed a wrong EMI at a lesser rate for the said loan of himself by not adhering to the stipulated EMI guidelines and hence, attempted to derive undue benefit by misusing his 'official' position."

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The second respondent further submits that since the above said irregularities / misconduct committed by the petitioner were grave in nature he was suspended from service vide order dated 13.07.2004 under Regulation 12 of Canara Bank Officer Employees (Discipline & Appeal) Regulation 1976 as disciplinary proceedings against petitioner were contemplated. A Departmental Inquiry was held and the second respondent submits that the petitioner and his defence representatives were given the opportunity of perusing and verifying all the documents filed on behalf of the Bank and inquiry was conducted on 18.07.2005, 19.07.2005, 20.07.2005, 21.07.2005, 22.07.2005 and 23.07.2005 respectively. It is submitted that during inquiry 8 witnesses were examined and 551 documents were produced on behalf of the Bank. The petitioner / defence representative was afforded full opportunity to cross-examine the Bank's witnesses. The petitioner did not produce any witness on his behalf. The inquiry was conducted and the inquiry report was submitted on 30.09.2005 whereby the petitioner was held guilty of all the charges levelled against him. A copy of the inquiry findings / report was provided to the petitioner to enable him to submit his explanation to the bank, but he failed to make any submission on the same.

¶86

The second respondent further submits that the Inquiry Officer after a detailed analysis and appreciation of the evidence available on record, both oral and documentary, arrived at his conclusions / findings with respect to each and every charge levelled against the petitioner. The second respondent further submits that with respect to the charge No.1, the Enquiry Officer has observed that when Sri.J.V.Ramanrao, MW1, the then Manager of Koh-e-Fiza Branch, had visited about 150 borrowers' places, he had found that there are no securities available in respect of those loan accounts and that most of the accounts have become NPA. The Inquiry Officer has further observed that Sri.J.V.Ramanarao(MW1), while deposing in the inquiry has confirmed that Sri.M.Swaminathan has granted the said loans during his tenure while working as Manager of Koh-e-Fiza Branch and most of the accounts have become NPA confirming that these accounts have become quick mortality accounts, that he has also confirmed that by referring MEX-9, 16, 20, 32, 37, 44, 49, 57, 62, 80, 90, 97, 134, 139, 146 and 157 that these loans have been appraised and sanctioned by petitioner and that it is on record that

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in respect of Canbudget loans sanctioned to Employees of Railway Department, Employee's Salary deduction mandates submitted by the borrowers were forged as informed to Sri.J.V.Ramanarao by their Employers. The Inquiring Officer has further observed that in respect of Canbudget a/c 542 of K.N.G.Nair, the employer has confirmed that the undertaking of deduction of salary is not given by them while identifying the management documents. Sri.J.V.Ramanrao has also confirmed that in most of the accounts recovery is not at all coming and most of the accounts have become NPA. Sri.J.V.Ramanrao (MW1) has further confirmed that Sri.M.Swaminathan has sanctioned loans to Sri.Harish Talreja, the middleman and his wife Smt.Krishna Talreja wherein number of irregularities have been observed in the sanction of the loans.

¶89

It has also been observed in the Inquiry Report that in majority of the loans the IT returns produced by the applicants, income in respect of men has been declared as between Rs.48,000/- to Rs.50,000/- and in respect of women the income has been declared as between Rs.78,000/- to Rs.80,000/- irrespective of their profession / income / business etc., as they are exempted from paying income tax upto that limit. When MW7 visited the Income Tax Department along with Sri Ashok Vyas, they have observed that in majority of the loans, in the IT returns produced by the applicants there is similarity that the said IT returns were filed with the Department 6- 10 days before applying / availing the loans. Most of these IT returns have been filed through middlemen just for the sake of getting loans. Further the depositions of Sri Ashok Vyas as well as Sri.H.K.Nagendra confirm that some borrowers who have filed the income tax returns were not aware of filing of their own income tax returns and in addition the income tax returns were filed for 2-3 years in one day before availing the loans. These income tax returns have been filed through a middleman. Apart from this, the Income Tax Returns filed in the IT Department and the copies submitted to the Branch differ from each other. The Investigating Officer, during his visit to the IT Department along with Sri Ashok Vyas, has obtained copy of assessment order from the Department wherein it differs from the returns submitted by them. Further, the evidence on record clearly establish that petitioner has not obtained no dues certificate or no objection certificate even where the borrowers are having account with other banks. As a Manager, the petitioner should have taken NOC / NDC before sanctioning / disbursing the loans particularly where the borrowers were having dealing with other Banks. In several accounts, income proof of the borrowers / coobligants was not obtained. MEX-23, 24, 25 and other Income Tax Returns submitted by the borrowers clearly show the income declared is in between Rs.48,000/- to Rs.50,000/- and Rs.78,000/- to Rs.80,000/- in respect of men and women respectively. The petitioner sanctioned these loans without getting the regular income of the borrowers certified and made available the bank's funds to noneligible persons which is detrimental to the interest of the Bank.

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It has also been categorically held in the Enquiry Report that Mr.FAzal Azin Khan (MW2), Officer, Mr.P.N.Chowhan (MW3), Officer and Mrs.Madhu Khushlani (MW4) Clerk were referred to as witnesses in many of the loan documents in spite of the fact that they had not actually witnessed the execution of the said loan documents. It has been held in the Inquiry Report that the petitioner had sanctioned loans on the basis of quotations given by M/s.Jai Deep Music Centre, M/s.Satguru Electronics, M/s.P.K.Enterprises, M/s.Shyam Music Centre, M/s.Deep Music & Electronics, M/s.Lal Radios & Electronics, M/s.Jai Ambey Electronics, M/s.Raja Electronics, M/s.Nanak Electronics, M/s.OM Electronics, M/s.Hira TV Centre and M/s.Viswakarm Furniture. As per the report, the evidence both oral and documentary brought on record to establish that there was no shop in the name of M/s.Jai Deep Music Centre in existence at the given address as per the Investigation Report of Sri.H.K.Nagendra. Similarly, M/s.Satguru Electronics, P.K.Enterprises, Shyam Music Centre, Nanak Electronics were not in existence at the given address. Even on the enquiries made by the Investigating Officer in and around the locality it has come to light that no such shops were in existence. Apart from this, by and large all estimations submitted by the borrowers at the time of availing the loan reveals that nowhere it is mentioned about the reference number of ST/CST or the phone numbers for contact etc., which clearly shows that these estimations are not genuine and made available only for the purpose of availing loans e.g. M/s.Jai Deep Music Centre, P.K.Enterprises, Satguru Electronics, New Sansar Music Centre, Lal Radio and Electronics, Jai Ambey Electronics, Guru Nanak Electronics etc., M/s.Om Electronics Proprietor, in his statement has confirmed that he is dealing in wholesale and not retail trade. They have supplied the items in some cases only against the receipt of DDs from Canara Bank and in many cases, reimbursement of the amount was given at the request of Sri Harish Talreja. Sri. Harish Talreja used to visit his shop for obtaining the bills / estimations / refund of amounts and on many occasions accompanied by the Manager, Canara Bank. Petitioner was well aware of the activities of Sri Harish Talreja and therefore, the contentions of the defence in this regard that the CSO was not aware of the activities of Harish Talreja do not merit any consideration. Apart from this, the CSO has submitted that sometimes he used to take Harish Talreja's assistance for his personal work in the normal course. The records reveal that the borrowers, in connivance with Harish Talreja, colluded with the petitioner in availing the number of loans by deviating from the guidelines and systems and procedures of the Bank.

¶92

The second respondent further submits that upon a close and careful analysis of the evidence, the Inquiry Officer has held that with respect to charge No.1, that it is clearly established that the petitioner herein has misused his official position, sanctioned a number of loans by involving Sri Harish Talreja @ Harish Bhai as a

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middleman and sanctioned various loans for accommodation purposes without conducting pre/post sanction visits, that he has also failed to ensure that assets are created out of the loan proceeds, thereby end use was not ensured which clearly shows that there were no post sanction visits done by the petitioner, that the estimations / bills / vouchers submitted by various dealers who were not in existence and some dealers who are not dealing in the assets mentioned in their estimations / bills / vouchers and by accepting such estimations / receipt and apparently manipulated financial documents, the petitioner in connivance with the middleman and the borrowers has sanctioned various loans which exposed the Bank to huge financial risk / loss to the tune of more than Rs.95 lakhs. Thus, the Inquiry Officer has concluded that the above acts on the part of the petitioner clearly shows that he has failed to discharge his duties with utmost integrity, honesty, devotion and diligence and due to his deliberate actions, the Bank has been exposed to serious financial loss.

¶95

With regard to charge No.2, the second respondent submits that it has been clearly held in the Inquiry Report that the evidence brought on record clearly established that the petitioner by misusing his official position and deliberately granting various loans to various borrowers brought by Sri Harish Talreja, the Middleman had so granted loans by deviating from the guidelines, the system procedures thereby received favours which touch upon his integrity and honesty. The Inquiring Officer has held that if the contention of the petitioner that all the income is by way of agriculture resources, he should have reported the matter as per the rules of the Bank and also all transactions exceeding Rs.25,000/- is also required to be reported as per the Rules. Apart from this nothing has been brought on record to establish the necessity of bringing the amounts from Nagapattinam to Bhopal and thereafter again remitting the same amounts by way of DDs' to various beneficiaries for various amounts. It is also not brought on record by the defence, the exact amount that they have received from their agriculture and other resources. Further, as per the defence brief, the income from agriculture sources is stated as Rs.80,000/- from agriculture and other resources. Hence, the said charge has been held to be proved.

¶96

With regard to Charge No.3, the second respondent submits that the Inquiry Officer has held that the petitioner has deliberately not responded to the BAR pertaining to his own Cancard FTV and kept the same unattended for a long time which enabled him to derive undue pecuniary benefits and he has also misused his official position as Manager of the Branch which touches upon his integrity and honesty. The above acts on the part of the petitioner are prejudicial to the interest of the Bank and that the contention of the defence that the account is closed does not mitigate the charge

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proved against him.

¶99

With regard to charge No.4, it has been held in the Inquiry report that the petitioner had deliberately not effected the EMIs towards DPN IPO 2/02 as per the same scheme and he has also not credited the sale proceeds of 300 shares of Canara Bank thereby acted in a manner which is prejudicial to the interest of the Bank and failed to discharge his duties with utmost integrity and honesty and that the contention of the defence that the said DPN IP a/c. stands closed before issuance of the charge sheet do not mitigate the allegations proved against him and, therefore, the said contention has no merit.

¶100

With regard to charge No.5, the second respondent submits that it has been held in the Inquiry Report that the petitioner had deliberately not adhered to the laid down norms with regard to Festival Advance and failed to ensure that the monthly installment is deducted from the salary every month and remitted to SA-FA on the salary day itself. It is also established that Sri.M.Swaminathan has violated the said guidelines and derived undue benefits by misusing his official position. His above acts are prejudicial to the interest of the Bank and he has failed to discharge his duties with utmost integrity and honesty.

¶101

With regard to the charge No.6, the second respondent submits that it has been held in the Inquiry that evidence brought on record clearly establish that Sri M.Swaminathan by misusing his official position made / fixed EMI at a lesser rate by not adhering to the stipulated guidelines and derived undue benefits. Thus, he failed to protect the interest of the bank, thereby failed to discharge duties with utmost integrity and honesty.

¶102

The second respondent additionally added that since the charges which were proved in the Inquiry are serious in nature, the Disciplinary Authority upon a detailed consideration of all the relevant aspects, vide its order dated 23.12.2005 dismissed the petitioner from the services of the Bank. The second respondent further submits that an appeal was preferred by the petitioner on 06.02.2006 and he was given of opportunity of personal hearing on 08.01.2007. After hearing the petitioner, the Appellate Authority, found that there are no extenuating circumstances so as to interfere with the order of dismissal and hence, confirmed the same vide order dated 12.01.2007.

¶103

The second respondent further submits that on the basis of documents and oral evidence, it was proved that the petitioner was guilty of the alleged misconducts therefore, the punishment of dismissal was imposed. The systems of appreciation of an employee in an institution, is to encourage the work done by him and this does not authorize him to indulge in malpractices by throwing systems and procedures to the winds and jeopardize the interest of the

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Institution. In reply to para No.14 of the writ petition, the second respondent submits that there is no provision of any appeal to the respondent No.1, Union of India, Secretary, Finance, as he is not a necessary party. It is submitted that the petitioner was dismissed by the Disciplinary Authority of the Bank after the gross misconduct was proved in the inquiry. It is wrong to allege that the petitioner was dismissed on the bald and minor allegation and acquisition.

¶106

The second respondent further submits that the allegation made in ground 12(a) that the order of dismissal is against the law, the principles of natural justice and probabilities of the case is unfounded and is denied by the respondents-Bank. With regard thereto, it is submitted that the action against the petitioner is fully in accordance with the Rules and Regulations contained in the Canara Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 and in the Departmental Inquiry the petitioner was afforded full opportunity to reply to the charge memo, peruse all the exhibits filed on behalf of the respondent Bank in the inquiry, avail defence assistance, cross-examine the witnesses produced on behalf of the Bank, file documents in defence, examine witnesses in the inquiry to substantiate his defence, etc., Thus, it is submitted that the Departmental Inquiry against the petitioner was conducted fully in conformity with the principles of natural justice and, as stated above, it was only after the charges were held to be proved the petitioner was dismissed from service. In the circumstances, the allegations made in ground (a) has no basis whatsoever.

¶107

The second respondent further submits that the allegations contained in ground (b) is equally untenable, baseless, devoid of merits and is denied by the respondent-Bank. The respondent Bank is advised to submit that as per the Rules, the Bank is empowered to suspend an employee in the event of the employee committing serious misconduct / charges fully detrimental to the interest of the bank. Thus, as the misconducts / charges committed by the petitioner has been proved and as it is very serious in nature, it is submitted that the suspension of the petitioner from service at the relevant point of the time is perfectly legal and justified. The allegations made in grounds (c) and (d) are strongly denied by the respondent Bank as groundless and without any merits. It is submitted that the Departmental Inquiry conducted was, as submitted above, fully in accordance of the principles of the Natural Justice and, as such, it is absolutely wrong on the part of the petitioner to allege that an eye wash enquiry was conducted. It is on record that the petitioner was called upon to file documents on his behalf and was also given opportunity to produce witnesses in support of his defence. It is also on record that the petitioner had, at the relevant point of time, filed five exhibits, namely, DEX-1 to DEX-5 and he had submitted that there are no witnesses on his behalf to be examined and further, he did not examine himself also in the inquiry.

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In the circumstances, it is highly mischievous, false and misleading on the part of the petitioner to state that he was not allowed to file documents / records and that he was not provided an opportunity to examine Mr.Harish Telraja.

¶110

The allegations contained in grounds (e) and (f) are baseless and are denied by the respondent Bank. As already submitted in detail herein above, it is reiterated that the charges levelled against the petitioner have been proved in a properly conducted Departmental Inquiry and it was only after a detailed consideration of the evidence on record against the petitioner, the order of dismissal came to be passed. The considerations made in the grounds (g) and (i) are equally untenable, devoid of substance and are denied by the respondent Bank. With respect thereto, it is submitted that, in as mush as the charges / misconducts committed by the petitioner are extremely grievous in nature and fully detrimental to the interest of the Bank, the respondent Bank has every right and liberty to award appropriate punishment, particularly since all the said charges / misconducts have been categorically proved in the Departmental Inquiry. The allegations made in ground (j) that the order of dismissal is arbitrary, illegal, etc., have no basis, whatsoever, is strongly denied by the respondent-Bank. It is submitted that the order of dismissal was passed by the respondentBank only after following due procedure of law, as explained herein above, and hence, the said order is fully legal and justified and not as alleged by the petitioner in the said ground (j). The charges levelled against the petitioner were fully proved in the inquiry basing on the documentary and oral evidence and he was held guilty of all the charges by the Inquiry Authority. Hence, there is no bias as alleged by the petitioner. In reply to para No.18 of the writ petition, the second respondent submits that it is incorrect that the petitioner has exhausted all the remedies. Hence, this respondent entreats the Court to dismiss the above writ petition.

¶111

The respondents 2 to 5 have filed an affidavit and stated that it is false on the part of the petitioner to allege that Charge No.1 only states that because the loan sanctioned to various borrowers by the petitioner have became non-performing assets for the reason of the borrowers not remitting or repaying the amounts. On the contrary, it is submitted that the Charge No.1 speak of serious irregularities and violation of the "laid down norms" while sanctioning 403 loans under retail category and apart from that the petitioner was further charged that in majority of the said loans, the I.T. returns produced by the borrowers were so arranged and deliberately created to ensure that the declared level of income is exempted from payment of tax and returns were filed with I.T. Department just 6 to 10 days before applying / availing the loans and income of the borrower / co-obligant was not mentioned or no proof of the income and assets / liabilities were obtained. Further, the loan applications were filled up in the handwriting other than the

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borrower / co-obligant / branch officials and quotations / bills / vouchers were having identical handwriting. The proceeds were released in the name of "Non-Existing Firms" or the firms which were not dealing in the items for which the quotations were submitted and got encashed by the borrowers by taking cash from those firms. Thus, the respondents submit that the petitioner acted in connivance with the persons who produced such manipulated papers for the sake of getting loans. The summarized review of the above said loans is as under:-

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S.No.	Particulars No. of loans sanctioned	No. of loans became NPA	Total liability under NPA (Rs. in Lakhs)
1	Can Carry 334	261	86.47
2	Camn budget 49	13	5.87
3	Can mobile 3	1	1.26
4	Can Mahila 10	3	1.48
	Total 396	278	95.08

¶115

The respondents 2 to 5 further submit that the relevant documents brought on record at the time of the domestic enquiry, categorically established that quotations have been obtained from various dealers irrespective of the necessity and just for the sake of availing finance from the Bank. Although, two of the Bank officials were shown as witnesses in the Loan Applications, they have categorically denied that they had never witnessed the signatures of any of the applicants or co-obligants. The respondents further submit that all the said serious irregularities have been clearly proved in the domestic enquiry and consequent of which alone and taking into consideration the relevant evidence, both oral and documentary, the said charge has been held to be proved against the petitioner.

¶116

The respondents 2 to 5 further submit that the averments made in the petition that the loans so granted are just petty loans and that after sanctioning the same, the squad or team of officers will inspect and find out as to whether the loan has been sanctioned to the person is equally untenable, misleading and without any substance, whatsoever. As a matter of fact, the respondents 2 to 5 submit that it was one of the most important function and responsibility of the petitioner, in his capacity as the Manager, to conduct pre-sanction and also post sanction inspections with respect to every loan that is granted. Apparently, the petitioner has deliberately failed and neglected to do so and very conveniently,

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now, he is attempting to escape from his liability and responsibility by stating that only the squad or team of officers will inspect. It will be of pertinence to point out herein that in respect of grant of loans to salaried persons, it is the foremost duty of the petitioner, to obtain an irrevocable mandate to deduct the installment amount from the salary payable to the concerned persons by the employer concerned for onward remittance to the Bank. This important function, duty, responsibility has also been conveniently given a go by, while granting of loans by the petitioner. It is submitted that the investigation officer has effectively carried out all the required inspections with the help of the other officers, who are well conversant with the local Hindi language.

¶119

The respondents 2 to 5 further submit that the contention of the petitioner that the credits in his account were legitimate and that the payments received from Sri Harish Talreja were repayment of the loan given by the appellant lacks merit. From the evidence brought on record it is established that the petitioner by misusing his official position and deliberately granting various loans to various borrowers brought by Sri Harish Talreja, the Middleman, had granted loans by deviating from the guidelines and the systems and procedures. His said acts certainly touch upon his integrity and honesty. If the contention of the petitioner that the income is by way of agriculture resources is to be believed, he should have reported the matter as per the rules of the Bank and also all transactions exceeding Rs.25,000/- should have been reported as required by the Rules. Apart from the petitioner's above contention nothing has been brought on record to establish the necessity of bringing of amounts from Nagapattinam to Bhopal and thereafter again remitting the same amounts by way of DDs to various beneficiaries for various amounts. The petitioner has failed to establish as to what exactly the amount he has received from their agriculture and other resources.

¶120

The respondents 2 to 5 further submit that it has been clearly established in the Departmental Enquiry that 5 local cheques drawn / received in his favour were discounted under LCDB and the proceeds there against, in all amounting Rs.34,836/- was given credit to his accounts as detailed in the charge sheet. Similarly, the records revealed that the same cheque was again discounted which confirms that the cheque No.419925 dated 10.04.2004 for Rs.14,836/was discounted by him twice. It has also been established in the Departmental Enquiry that on the first occasion the proceeds was first credited to OD Account No.9 of the petitioner and once again the same cheque was lodged under LCDB on 13.04.2004 and the proceeds were given credit to SB account No.444 of the petitioner by debiting "BA-BAR CLG-16/04" (the total BAR amount being Rs.1,39,725.12). The said double credit was rectified only on 18.04.2004 when amount of Rs.14,836/- was recovered from his SB Account 444 and given credit to BP CDB. The respondents further submit that once again five cheques

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in his favour were also discounted under BP CDB on various dates and as a result of the same, on 11.04.2004, the total liability under CDB in his name stood at Rs.24,836/-.

¶123

The respondents 2 to 5 further submit that the petitioner has not disputed about BAR No.163/02 for Rs.10315/- and BAR No.164/02 for Rs.10315/- raised by Rewa Branch on our Koh-e-Fiza Branch. The BAR No.163/02 for Rs.10315/- was pertaining to one Mr.Rohit Saxena and BAR No.164/02 to Mr.M.Swaminathan, the petitioner herein and it is on record that the said two BAR were dispatched by Rewa Branch on 28.01.2002 itself through courier. However, BARS No.164/02 in respect of the petitioner was not responded along with BAR No.163 even though both BARs were sent in one cover. It is established that the petitioner did not respond to his own cancard FTV BAR for Rs.10315/- received through our Rewa Branch while the Bar No.163/02 was responded on 06.01.2003 itself. It is submitted that it is evident that as per the relevant records, the IBA No.006 dated 06.01.2003 has been signed by the petitioner. The BAR No.164/02 was kept pending and was realized after intervention of IC and IF Section, Circle Office, Delhi after a lapse of 11 months. No BAR Register was maintained at Koh-e-Fiza Branch to follow up unresponded BARs. Further, it is established that BAR inward register to follow the unresponded BARs was not maintained at Koh-e-Fiza Branch during the tenure of the petitioner.

¶124

The respondents 2 to 5 further submit that the petitioner has admitted that it was a genuine mistake on his part but his contention that he was under the notion that the remaining number of shares had sufficient value to cover the loan amounts lacks merit. He was again responsible for not reporting under updation to effect the monthly installment out of salary. In the enquiry, it is clearly established that the petitioner had deliberately not effected the EMIs towards DPN IPO loan 2/02 as per the scheme and he has also not credited the sale proceeds of the 300 shares and thereby acted in a manner which is prejudicial to the interest of the Bank. He has failed to discharge his duties with utmost integrity and honesty. The contention of the petitioner that the said DPN IPO a/c stands closed before issuance of the charge sheet will not mitigate the allegations proved against him, therefore the said contention lacks in merit.

¶125

The respondents 2 to 5 further submit that the contention in the petition that the salary updation is normally done at the officer level and the omission is not intentional does not hold good as from the enquiry it is observed that the salary details / particulars were directly dealt with by the petitioner. It has also been confirmed before the Enquiry Officer that updating of salary deductions of Festival Advance, LHB, DPN, IPO, etc., were specially handled by the petitioner himself. Admittedly, he had availed festival advance of Rs.20,400/- on 04.03.2003 while working at Koh-e-Fiza Branch and he being the Branch in-charge, ought to have

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ensured that proper reporting was made in the updation so as to enable the salary disbursement authority to effect proper deduction. The petitioner has deliberately not adhered to the laid down norms with regard to Festival Advance and failed to ensure that the monthly installment is deducted from the salary every month and remitted to SA-FA on the salary day itself. Therefore, the petitioner has violated the said guidelines and derived undue benefits by misusing his official position.

¶128

The respondents 2 to 5 further submit that the contention of the petitioner that the EMI of the LHV loan was inadvertently registered as Rs.450/- instead of Rs.700/- by the concerned supervisor is untenable. In the Departmental Enquiry, it has been proved that the Establishment Department at the Branch was handled by the petitioner himself. It is observed that the petitioner by misusing his official position has given a false / wrong updation to the salary disbursement authority for a lesser EMI for his own loan a/c and derived undue benefits. It is not correct to say that the subject loan was sanctioned by the Circle Office and EMI was fixed only by Circle Office. In fact, it was on the record that the petitioner had sanctioned a vehicle loan in his own name and fixed for him an EMI of Rs.700/- per month for 84 months but given a false / wrong updation to the salary disbursing authority for lesser EMI for his own loan account. For all the reasons mentioned above, this writ petition is not maintainable.

¶129

The highly competent senior counsel Mr.C.Selvaraj submits that the writ petitioner had joined as a Clerk in the Canara Bank on 07.05.1979 and was promoted as an Officer in Scale-I in the year 1987 after taking into account his impeccable service. Subsequently, he was promoted as Manager in Scale-II and posted at Rewa Branch in Madhya Pradesh. Thereafter, on 02.03.2005, he had been charged for advancing retail loan schemes for 403 persons without following proper records and not ensuring the assets of the borrowers and sanctioned the said loans against the quotation and bills of non-existing dealers, involvement of an outsider as a middleman and also not ensuring the regular repayments in all the loan accounts. This allegation had not been proved beyond doubt since the dealers were not examined and the borrowers were not examined. The highly competent senior counsel vehemently pointed out that the beneficiaries names had been mentioned in the charge sheet but they have not been examined. Further, the respondents have not listed the quotations and bills in order to prove the six charges which has been levelled by the respondents. Furthermore, the respondents had listed 23 documents, which are all being maintained by the Bank. The said retail loans have been sanctioned after scrutinizing the loan applications, quotations, bills etc. The loans were also sanctioned and issuance of pay order in favour of dealers was carried out subsequently. Therefore, the dealers are star witnesses in the instant case, but no such dealers were examined. In this case, dishonesty does not arise since the mode of repayment by way of pay

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order is in the name of the dealer. The respondents serious allegations that an outsider, as a middleman got involved in this, but the respondents have not examined any middleman. Therefore, the said allegation has no force to reckon with. The processing of the loan applications and scrutiny of the same, along with the annexed documents, had not been done by the writ petitioner alone in an individual capacity. The processing has been carried out by a collective concerned staff of the Bank. As such, the enquiry must be conducted after including the confirmed staff but, they have not been roped in for the said charges. Therefore, the said charge sheet and subsequent findings have no firm grounds and hence, unsustainable by law.

¶132

The highly competent senior counsel appearing for the petitioner further submits that the respondents had contended that the borrowers had manipulated income tax returns, for which, the writ petitioner connived with the concerned borrowers and accepted the manipulated documents. In order to prove the said allegation, the said I.T. return documents have not been examined. Therefore, the said allegation in its deformed state may be ignored. In another allegation that most of the loan applications were not filled up by the borrowers, but filled up through a single person is highly objectionable, hence not sustainable. In another allegation, it has been stated that all the loans had been sanctioned towards purchase of television, washing machines, refrigerator, stereo and video equipment etc., and the sanction order is stereotype in nature and not meritable. However, no allotment of specific funds has been shown to cover the value of all electrical equipment as mentioned above and further this should have been taken care of by a reasonable team of checking personnel at the Bank. Therefore, the said allegation cannot be proceeded with against the writ petitioner. Further, it has been alleged that one middleman, viz., "Harish Bhai" had arranged bills, quotations and vouchers and bill books from various dealers for obtaining sanction of the loans. However, neither any dealer was examined nor the said middleman Harish Bhai was examined even though, he was a crucial witness. In the absence of main witness evidence, the impugned order does not possess sufficient force for execution against the writ petitioner. Besides the respondents have mentioned many dealers names in the charge sheet, who have allegedly connived with the writ petitioner. In order to prove the said allegation, the respondents have not examined any dealer as such, they have committed a serious lapse and an obvious lacuna. Once the allegation is not proved beyond doubt, then the impugned order is sunk and cannot be carried out as justice demands fool proof methods of proving guilt against an accused person. The respondents have mentioned several borrowers names, dealers names, quantum of loan amounts and category of loans, yet this fact is not proved by comprehensive enquiry. as per the allegation of the respondents, it has been stated that the writ petitioner connived with the middleman, dealers and borrowers and hence, this matter is covered under criminal nature of offence.

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In order to determine the veracity of the offence, no appropriate and pertinent action has been initiated against the concerned persons. Therefore, the entire charges as levelled against the petitioner is not sustainable under law due to heavy lapses. The sanction of the loan was on the basis of retail loan scheme. The said sanction of loan was done in a proper manner with the assistance of other bank staff and as such, there is no illegality or irregularities committed by the petitioner. Therefore, all the six charges are baseless. The petitioner had given suitable reply on the said charges, but the same was not considered by the respondents. Further, before conducting a domestic enquiry, the petitioner was placed under suspension, which is against the principles of natural justice and indicates malafides.

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The highly competent senior counsel appearing for the petitioner further submits that on the side of the management 551 exhibits have been produced, but no one was examined to prove the said documentary evidence and as such, the attitude of the Management is one of arrogance and the case of the respondents has lost its strength. The management had alleged that the petitioner had committed irregularities, illegalities and fraud for his personal gain, but all these allegations have not been proved even after conducting domestic inquiry. Therefore, the impugned order is inappropriate and quantum of punishment imposed on the petitioner is on the highest side. The "Can carry" Scheme, has been introduced for purchase of domestic appliances by the people for their homes. The petitioner had not sanctioned any huge amount to the borrowers and as such, the petitioner had functioned as per Bank norms. Further, the borrowers periodically have repaid the installments regularly. The Bank superiors had issued about 24 appreciation of "good performance certificate", which clearly proves that the writ petitioner's skilled service was most appropriate, but the same was not recognized by the Bank Management. The Management had also levelled a complaint against the writ petitioner before the Central Bureau of Investigation who also conducted inspection and the said complaint was not proved. Therefore, the impugned order of the respondent is not fit to be proceeded with any further. If the borrower had committed default for repaying the loan amount, then the Bank has to recover the said amount in a legal manner through a recovery machinery which is available at the Bank.

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The highly competent senior counsel appearing for the petitioner further submits that the second charge was that 5 demand drafts amounting to Rs.95,000/- in favour of the writ petitioner had been credited in his account. As per the Bank Regulation, any transactions exceeding Rs.25,000/- has to be intimated to the bank and the same was not complied with due to urgent need of funds for his family purpose i.e., agricultural and educational needs. The third charge was that the writ petitioner was working at Thevur Branch, Nagapattinam District and transferred to Rewa at Madhya Pradesh. This allegation is not maintainable since he had been re-

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transferred to Bhopal. The fourth charge was that the petitioner availed loan for a sum of Rs.17,500/- and the same was repaid by way of cash from savings bank account, according to the writ petitioner's convenience instead of installment basis. Therefore, this also is a trite issue and as such, the quantum of punishment i.e., dismissal from service is extremely harsh. Likewise, the fifth charge was that the writ petitioner had availed festival advance of Rs.20,400/- and the same has to be repaid in 10 equal installments. Accordingly, the amount had not been repaid, but the entire festival amount was debited from O.D. account of the petitioner. As such, there is no loss or inconvenience to the bank. The sixth charge was that the petitioner availed a sum of Rs.40,500/- as vehicle loan and the said amount has to be repaid in 84 monthly installments, which was not done. However, the loan amount had been repaid to the Bank. Hence, the petitioner had not caused any loss to the Bank. Therefore, the very competent counsel entreats the Court to set-aside the impugned order of the respondent. In support of his contentions, the highly competent senior counsel has cited the following judgments:-

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(i) (1997) 1 Supreme Court Cases 209 (NARAYAN DATTATRAYA RAMTEERTHAKHAR v. STATE OF MAHARASHTRA)

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"A. Service Law - Removal from service - Order of, for misappropriation of public money, held, proper - Punishment - Quantum of - Misconduct - Misappropriation of public money - Appropriate punishment for

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B. Departmental enquiry - Preliminary enquiry - Defect in, held not vitiative of the full-fledged enquiry - Natural justice - Hearing."

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(ii) (1999) 2 Supreme Court Cases 10 (KULDEEP SINGH v. COMMISSIONER OF POLICE)

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"A. Service Law - Departmental enquiry - Judicial review - Scope of, under Arts.226 and 32 - Held, not totally barred - Finding of guilty although would not be normally interfered with, held, the Court can interfere therewith if the same is based on no evidence or is such so could not be reached by an ordinary prudent man or is perverse or is made at the dictates of a superior authority - Constitution of India, Arts. 226 and 32 - Interference in service matters - Departmental enquiry - Judicial review"

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(iii) (2003) 11 Supreme Court Cases 519 (RAJ KISHORE JHA v. STATE OF BIHAR)

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"A. Constitution of India - Art. 136 - Appeal in criminal matters - Appeal against acquittal - Interference by Supreme Court, when called for - Held, Supreme Court will not abjure its duty to prevent miscarriage of justice by not interfering where interference is imperative - Thus, where High Court disposing of appeal against conviction in

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a rather casual manner and acquitting accused persons by passing a non-reasoned order, held interference by Supreme Court in appeal against High Court's judgment called for"

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(iv) (2004) 10 Supreme Court Cases 87 (UNION OF INDIA v. MOHD. IBRAHIM)

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"A. Service Law - Departmental enquiry - Initiation of fresh departmental enquiry - Initial enquiry held, though vitiated, employer can start fresh proceeding - Contention of delinquent that 17 years had elapsed and it would cause great hardship to start proceeding afresh, held, liable to be rejected, particularly in view of the serious charges levelled against him.

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B. Service Law - Departmental Enquiry - Enquiry report - Conclusion of enquiring officer based upon statement of persons made in the course of preliminary enquiry - Order of dismissal of the respondent having been based upon the said conclusion, held was, vitiated"

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(v) (2004) 10 Supreme Court Cases 88 (TESTA SETALVAD v. STATE OF GUJARAT)

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"A. Criminal Procedure Code, 1973 - Ss.354 and 482 - Remarks in judgments in nature of comments or criticism - Held, remarks must be relevant to subject-matter of adjudication - Presence of persons against whom remarks made and opportunity to rebut imperative - Natural justice principles to be observed - Restraint to be exercised in respect of recalcitrant subordinate judicial officers to apply with equal force in case of persons not present before Court - Constitution of India - Art. 136 - Expunction of adverse remarks - Civil Procedure Code, 1908, Or. 20 R.4"

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(vi) (2008) 8 Supreme Court Cases 236 (STATE OF UTTARANCHAL v. KHARAK SINGH)

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"A. Service Law - Departmental enquiry - Natural justice - Enquiry, held, should not be an empty formality - A witness should not be the enquiry officer - Departmental evidence should be led in the first instance and in presence of charged employee - Copy of enquiry along with material relied on should be furnished to charged employee - These requirements not fulfilled in the present case - Enquiry therefore held bad"

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(vii) (2007) (1) Supreme Court Cases 46 (Director (Mkt.) Indian Oil Corporation Ltd., & Anr. v. Santhosh Kumar)

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"Disciplinary Proceedings - Speaking Order - Remit - Respondent was found guilty for fraud and theft in detailed enquiry and dismissed from service - High Court found that various points raised by the employee were neither

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considered nor repelled by the Disciplinary Authority or Appellant Authority - Hence they ordered reinstatement with consequential benefits - Supreme Court found D.A. and Appellate Authority had used similar language and gave no reasons for awarding penalty so the proceeding were detective - But S.C. also held that in such case proper course is not to reinstate but to remit the case to authorities to pass speaking orders - Remitted the case with direction to respondent not to place any further material on record and D.A. to dispose off as per directions."

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(viii) AIR 2008 SUPREME COURT 2026 (State of Uttaranchal v. Sunil Kumar Singh Negi)

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"Constitution of India, Art. 226 - Industrial Disputes Act (14 of 1947), Sch.2, Item 6 - Writ Petition - Disposal by non-speaking order - Award of reinstatement in favour of daily wager - Daily wager alleging non-compliance and demanding wages - Claim for wages allowed - Petition against - Dismissal of petition by cryptic order despite stand taken by department that daily wager had defaulted to join - Not sustainable.

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W.P.(M/s.)No.820 of 2005, D/-26-7-2006. (Uttr.) Reversed."

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(ix) (1995) 6 Supreme Court Cases 749 (B.C. CHATURVEDI v. UNION OF INDIA)

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"A. Service Law - Departmental enquiry - Misconduct - Possession of assets disproportionate to known sources of income of delinquent (ITO) - Findings of disciplinary / appellate authority based on appreciation of evidence - Judicial review - Scope - Deduction of 10% of the total income in calculating the disproportionate assets, as allowed in Krishnanad case, is the maximum benefit available to the delinquent - Where assets of the delinquent found to be disproportionate even after giving the benefit of 10% by including the alleged stridhana of his wife and fixed deposits or gifts of his daughter in his assets, held, Court / Tribunal has no power to interfere with the findings of disciplinary / appellate authority by re-appreciating the evidence.

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B. Service Law - Departmental enquiry - Judicial review - Scope - Court / Tribunal cannot interfere with findings of fact based on evidence and substitute its own independent findings.

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C. Administrative law - Judicial review - Nature, object and scope - Review is of decision-making process - Factors to be considered - Where finding of disciplinary authority / appellate authority are based on some evidence, Court / Tribunal cannot re-appreciate the evidence and

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substitute its own findings"

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The very competent counsel Mr.T.R.Sathya Mohan appearing for the respondents 2 to 5 submits that the writ petitioner had committed various deeds of misconduct and irregularities while he was serving at Kohe-Fiza Bank of the respondents'-Bank. Therefore, he had been suspended from service and a charge sheet was issued to him. After a comprehensive enquiry was conducted and the charges six in numbers were proved, the dismissal order was passed by the third respondent from Banglaore. The enquiry was conducted at Delhi and Bhopal and the cause of action had arisen from Bhopal. Therefore, the writ petitioner had wrongly addressed to this Court since this Hon'ble Court has no jurisdiction. Therefore, the writ petition is not maintainable since the first principal of law has been violated. The petitioner had rendered normal and routine service to the Bank, but not in a skilled manner as claimed by him. The upgradation of Bank comprises in the all round performance of the concerned branch, viz., deposits, advances, internal control etc., Therefore, for the upgradation of the Bank is not due to the efforts of a single official, but due to the collective efforts of the entire bank. Further, the charges have been levelled against the petitioner on the basis of deeds of misconduct and not on the basis of any jealousy.

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The very competent counsel Mr.T.R.Sathya Mohan appearing for the respondents 2 to 5 submits that the petitioner had not followed the procedures of the Bank and blatantly ignored the interest of the Bank, thereby placing the Bank to the risk of huge financial loss and as such, the petitioner failed to discharge his duty with honesty and integrity. While the petitioner was working at Kohe-Fiza Bank at Bhopal, he had granted 403 loans made under the retail loan scheme without following proper procedures and sanctioned the said loans on the basis of bogus records. The borrowers had produced income tax returns which are not bona-fide records and was created ones which are stereotype in nature and the writ petitioner connived with the borrowers and the middleman in order to sanction the loan amount and sanctioned the loans to non-eligible persons. The borrowers had produced quotations, bills and vouchers along with loan applications. These documents are found to be bogus and obtained from non-existing dealers. Further, the petitioner had sanctioned the loan to the salaried persons, who have not maintained their salary accounts with the Branch and as such, the writ petitioner had violated the bank norms and committed irregularities.

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The very competent counsel Mr.T.R.Sathya Mohan appearing for the respondents 2 to 5 submits that one Shri Harish Taleja was moving along with the petitioner in a close manner and he had prepared required documents like quotations, bills and vouchers required for granting loans, for which, the writ petitioner had extended his co-operation by conniving with him. A large number of

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abnormal transactions had been noticed in the accounts maintained by the petitioner. The petitioner had connived with a middleman and sanctioned the loans to the various borrowers and caused loss to the Bank. The petitioner had also committed misappropriation in the sale proceeds of shares. Besides, misappropriation of sale proceeds of the scheme he had also defaulted in the remittance of vehicle loans to the Bank as well as the festival advance. Hence, the respondents had framed six charges against the petitioner and the charge sheet was duly served on him and he had also participated in the said enquiry. The Management had listed 23 documents and 7 witnesses after a comprehensive enquiry and all the charges were proved. Hence, the impugned order had been passed followed by the dismissal order on the petitioner. Further, the charges had been proved on the strength of documentary proof in the presence of the writ petitioner. He further submits that the petitioner had sanctioned 403 loans against the quotations of non-existing establishments, with the help of one middleman Harish Taleja. In support of his contentions, the very competent counsel has cited the following judgments:-

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(i) (2008) 5 Supreme Court Cases 554 (MAZDOOR SANGH v. USHA

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BRECO LTD.,)

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"A. Labour Law - Industrial Disputes Act, 1947 - S. 11A - Discretion available to Labour Court - Law laid down in Firestone Tyre and Rubber Co. of India (P) Ltd., case, (1973) 1 SCC 813 - Explained and further held, must be exercised judiciously and with restraint - Labour Court ought not substitute its own view merely because two views are possible on the basis of evidence on record - However, Labour Court can examine aspect of proportionality - Labour Court concluding that domestic enquiry was conducted in accordance with principles of natural justice and findings in the enquiry report were not perverse, yet it interfering with the management decision and holding that no charge was established against workmen-No fresh evidence was introduced by either side before Labour Court - Held, Labour Court's interference not warranted - Analogy of law laid down on Civil Procedure Code S.96, also invoked - Civil Procedure Code, 1908 - Ss.96 - Administrative Law - Proportionality."

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(ii) (1996) 9 Supreme Court Cases 69 (DISCIPLINARY AUTHORITY-CUM-REGL. MANAGER v. NIKUNJA BIHARI PATNAIK)

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"A. Service Law - Misconduct - What amounts to - Acting beyond one's authority, held, a misconduct within the meaning of Regn.24 of Central Bank of India Officer Employees' (D&A) Regulations - Proof of any loss not necessary - More so, when a Scale I Officer of the Bank for a sufficiently long period and in a number of instances allowed overdrafts or passed cheques involving substantial amounts beyond his authority - Such acts could not be

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treated merely as errors of judgment - Central Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976, Regns.3 and 24 - Banks."

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From the above discussions, this Court is of the view

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that:-

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(i) The respondents had issued a charge sheet containing 6 various charges. In order to prove the said charges 23 documents were listed and seven witnesses were examined. Out of them the quotations, vouchers, bills have not been mentioned in the list of documents. The names of the middleman and dealers who have allegedly paid loan amounts have not been mentioned and they have also not been examined. Therefore, the charge sheet is an inappropriate one.

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(ii) The granting of loan under the retail loan scheme has not been handled by the writ petitioner alone but it has been handled with the assistance of the other concerned staff of the bank. Therefore, the sanction of loan has been done in a collectively managed process.

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(iii) It has been alleged in the charge that the name of the middleman, the dealers name, categories of loans, mode of payment had been mentioned, but the middleman and dealers were not examined. Therefore, there is distinct shortcoming during the process of the inquiry.

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(iv) The fifth and sixth charges are that the petitioner had not remitted the festival advance loan and vehicle loan received by him as per Bank norms. However, it is seen that the said amounts had been paid by the petitioner. So, this clearly indicates the inability in the repaying capacity of the petitioner and is not tantamount to illegality or irregularity and may be treated as a trite issue. As such, the larger punishment in dismissal of service of petitioner is certainly not appropriate in the instant case.

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(v) The rest of the other charges have not been proved through main witnesses / independent witnesses, viz., the middleman, dealers and borrowers and as such, the inquiry circuit is not complete. Hence, the impugned order is inappropriate and cannot be executed against the writ petitioner without hearing him out fully and comprehensively since a lacuna is apparent.

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(vi) It has been contended by the respondents that the certificates of appreciation received by the petitioner had been obtained through the collective efforts of the staff and hence, in the same vein, it is only natural to assume that the process of sanction of loan and other banking process would also involve the collective efforts of the staff and as such, the non-examination of other collective staff shows an obvious bias of the respondents against the petitioner.

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On considering the facts and circumstances of the case and arguments advanced by the learned counsels on either side and on perusing the impugned order of the respondents and this Court's view mentioned above, viz., (i) to (vi), this Court is perforce inclined to allow the above writ petition. Consequently, the order passed by the third respondent in his proceedings Ref.No.IRS DP DC 5262 of 2005, dated 23.12.2005 and confirmed by the appellate authority, the fourth respondent, in his proceedings No. Nil, dated 12.01.2007 and confirmed by the original authority on behalf of the reviewing authority in his proceedings No.IRS DP 7256 CS, dated 14.03.2007 are quashed. Consequently, this Court directs the respondents to restore the petitioner to his original position in order to calculate his service benefits as if he was still in service until his superannuation.

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In the result, the above writ petition is allowed. There is no order as to costs. -s/dAssistant Registrar(CO) Dated:22/9/2014 True Copy Sub-Assistant Registrar r n s To 1.The Secretary, Union of India, Finance Department, New Delhi. 2.The General Manager, Circle Office, Canara Bank, Bhopal. 3.The General Manager / Disciplinary Authority, Canara Bank, No.112, J.C.Road, Bangalore - 2. 4.The Executive Director, Canara Bank, Head Office, No.112, J.C.Road, Bangalore-2.

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