Madras High Court
S. Ganapathy vs The Chairman And Managing Director on 31 August, 2016
Author: B. Rajendran
Bench: B.Rajendran
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 31.08.2016
CORAM
THE HONOURABLE MR.JUSTICE B.RAJENDRAN
Writ Petition No. 15462 of 2014
and
M.P. No. 1 of 2014
--
S. Ganapathy .. Petitioner
Versus
1. The Chairman and Managing Director
Indian Overseas Bank
763, Anna Salai
Chennai - 600 002
2. The Appellate Authority/Executive Director (ADMC)
Indian Overseas Bank
763, Anna Salai
Chennai - 600 002
3. The Disciplinary Authority/General Manager (NKG)
Indian Overseas Bank
763, Anna Salai
Chennai - 600 002 .. Respondents
Petition filed under Article 226 of The Constitution of India praying for a Writ of Certiorarified Mandamus to call for the records of the third respondent in No.DO.VIG;GM(NKG);DA1-7603;4289;2013-2014 dated 30.10.2013 as confirmed by the order of the second respondent in DO;VIG;ED(ADMC);DA;7603;1016;2014-15 dated 08.05.2014 and to quash the same and consequently direct the respondents to reinstate the petitioner into service with all consequential and other attendant benefits.
For Petitioner : Mr. A. Navaneetha Krishnan, Senior Advocate
for Mr. A. Rajaperumal
For Respondents : Mr. N.G.R. Prasad
ORDER
The petitioner calls in question the order dated 08.05.2014 of the second respondent/disciplinary authority, dismissing the petitioner from service, which was confirmed by the order dated 30.10.2013 of the third respondent/appellate authority.
2. The petitioner joined the services of the Indian Overseas Bank as Clerk on 22.09.1982. After successive promotion, he was working as Manager of the Indian Overseas Bank and posted in various branches. When the petitioner was working as such, on 03.01.2011, based on a criminal complaint registered against him, he was arrested and remanded to judicial custody. On the basis of the criminal proceedings initiated against the petitioner, he was suspended from the services of the bank on 05.01.2011 as per Regulations 12 (1) (b) of Indian Overseas Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. Thereafter, on the basis of a preliminary report alleging irregularities committed by the petitioner with respect to 8 transactions, a concurrent suspension order dated 14.02.2011 was issued to the petitioner. On 23.04.2012, the bank issued a charge sheet covering 15 transactions that took place between 01.11.1998 and 25.11.2010 relating to withdrawal of amount to the tune of Rs.1,58,31,400/-, which according to the bank is a contravention of Regulations 3 (1) and 3 (3) of Indian Overseas Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. The petitioner has submitted his detailed explanation to the charges on 30.04.2012. Having not been satisfied with the explanation offered by the petitioner, an enquiry officer was appointed on 18.07.2012. After conducting enquiry, the enquiry officer submitted his report on 31.08.2013, which was communicated to the petitioner by a letter dated 16.09.2013. The petitioner also submitted his further explanation dated 08.10.2013 to the report of the enquiry officer in detail. Thereafter, the third respondent passed an order dated 30.10.2013 dismissing the petitioner from service. Assailing the same, the petitioner preferred a statutory appeal before the second respondent and it was also rejected by the second respondent on 08.05.2014. Challenging the aforesaid orders, the petitioner is before this Court with this writ petition.
3. The learned Senior counsel for the petitioner attacked the impugned order of dismissal on several grounds. According to the learned Senior counsel for petitioner, the impugned order of dismissal is vitiated due to the fact that the third respondent is not a competent designated authority to pass the order of dismissal. The petitioner being a Scale II Officer, it is the Deputy General Manager who is competent to pass the order of dismissal and not the third respondent, who is designated as General Manager. The learned Senior counsel for petitioner would further contend that sufficient time and opportunity has not been afforded to the petitioner during the course of enquiry. The notice for enquiry dated 07.01.2013 was sent to the petitioner for the enquiry to be held on 10.01.2013. On receipt of the same, the petitioner sought for adjournment. Inspite of the same, the enquiry officer proceeded with the enquiry and marked certain documents on 10.01.2013 and 11.01.2013 in the absence of the petitioner. The chief examination of certain witness was done in the absence of the petitioner. Thereafter, on 01.03.2013 the enquiry officer proceeded with the enquiry and ultimately, the enquiry officer submitted his report dated 31.08.2013 to the disciplinary authority. Thus, according to the learned Senior counsel, the petitioner was not given adequate and sufficient opportunity to defend the enquiry proceedings which was not taken note of by both the disciplinary authority and appellate authority.
4. The learned Senior counsel for the petitioner would further contend that on 13.08.2013, the petitioner has submitted a representation to the enquiry officer seeking to examine certain witnesses namely the Cashier and another Officer of the Bank, but it was forwarded to the disciplinary authority, who has grossly ignored it. Thus, without considering the letter dated 13.08.2013, the enquiry proceedings were finalised and a report dated 31.08.2013 has been sent by the enquiry officer. The learned Senior counsel for the petitioner would therefore contend that the entire enquiry proceedings are biased and vitiated for non-adherence of procedures enshrined under law. There was no complaint given by the customer or there was any loss caused to the bank. The delinquency alleged against the petitioner is only a procedural irregularity for which the order of dismissal is not warranted. As far as the allegations against the petitioner are concerned, the learned Senior counsel for the petitioner would contend that the customer has given oral instructions for transfer of funds and that is the reason why the customer has not given any complaint against the petitioner.
5. As far as the appellate authority is concerned, after filing of appeal, the petitioner was given a personal hearing by the appellate authority on 17.04.2014, on which date, the petitioner has given a letter raising very important points which he could not disclose during the course of personal hearing due to the presence of a third party at the time of such hearing. This letter has not been considered by the appellate authority. In fact, in the order of rejection passed by the appellate authority, it was simply stated that the petitioner has not produced any new evidence or appraised facts to reconsider or modify the decision taken by the disciplinary authority to dismiss the petitioner from service. This finding, according to the learned Senior counsel for the petitioner, is without application of mind especially when the petitioner has given a letter dated 17.04.2014 during the pendency of the appeal.
6. The learned Senior counsel for the petitioner relied on the decision in the case of (A.M. Sugunasundaram vs. Syndicate Bank, Manipal) reported in ILR 2001 Karnataka 4052 to contend that when enquiry was not conducted in accordance with law, regulations of the Bank and in compliance of the principles of natural justice, it is vitiated. Further, when the delinquent is able to establish prejudice that has caused to him in not conducting a fair and legal enquiry, such enquiry cannot be sustained under law. Relying on this decision, the learned Senior counsel for the petitioner submits that Regulation 6 (1) of the Indian Overseas Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 specifically provides that no order imposing major penalties shall be made except after an inquiry is held in accordance with the Regulation. Regulation 6 (3) provides that all documentary evidence to be relied on against the delinquent has to be furnished to him and wherever it is not possible to furnish the copies of the documents, the delinquent may be allowed to inspect such documents. Relying on Regulation 6 (13), it is submitted that the witness produced by the Presenting Officer shall be examined by the Presenting Officer and may be cross examined by or on behalf of the officer employee. In the present case, only the first witness was made available for cross-examination and the other witnesses were not produced at all. In other words, the only witness produced was the investigating officer, who investigated the complaint. His witness has to be the last witness to sum up the mode of collection of documents. The learned Senior counsel also brought to the notice of this Court Regulation 17 to contend that the Appellate Authority is expected to consider all the evidence made available during the course of enquiry to justify or modify or to enhance the punishment imposed by the disciplinary authority. In the present case, as mentioned above, the appellate authority failed to take note of the letter dated 17.04.2014 given by the petitioner during the pendency of appeal and concluded as if the petitioner has not brought any new fact or evidence for consideration of the appellate authority. Therefore, according to the learned Senior counsel for the petitioner, as held by the Karnataka High Court in the decision mentioned supra, the entire proceedings against the petitioner are vitiated.
7. The learned Senior counsel for the petitioner would further contend that during the course of enquiry, it was admitted by the investigation officer that apart from the petitioner, seven other Senior Officers of the Bank were also found guilty of the lapses. However, only one of the Seven Managers participated in the enquiry. Out of the seven Managers, three were awarded minor punishment without holding enquiry against them and remaining two were left unquestioned since they either retired or dead. The petitioner alone has been isolated and ill treated by subjecting him to disciplinary proceedings and by awarding capital punishment for unexplained reasons. At any rate, imposing the capital punishment against the petitioner and letting out similarly placed delinquent officer is arbitrary and discriminatory. In this context, the learned Senior counsel for the petitioner relied on the decision of the Honourable Supreme Court in the case of (Hardwari Lal vs. State of U.P. and others) reported in (1999) 8 Supreme Court Cases 582 to contend that failure to examine material witnesses would result in violation of principles of natural justice and on that ground, the order of dismissal passed against the petitioner has to be set aside.
8. The learned Senior counsel for the petitioner further placed reliance on the Division Bench decision of this Court in the case of (The State of Madras, rep. by the Secretary to Government, Home Department, Fort St. George vs. M. Kandasamy) 1972 The Madras Law Journal Reports 374 wherein the Division Bench of this Court held that in exercise of powers under Article 226 of The Constitution of India, the High Court can examine the evidence on record to satisfy itself that the conclusion of the Tribunal for Disciplinary Proceedings is justified or not on the basis of acceptable evidence made available. Relying on this decision, the learned Senior counsel for the petitioner would contend that there was no acceptable evidence made available against the petitioner in this case and therefore he prayed for allowing the writ petition.
9. Per contra, the learned counsel for the respondents/bank vehemently opposed the writ petition. By relying on the counter affidavit filed on behalf of the respondents, it was contended that the charges for which the petitioner was subjected to disciplinary proceedings are serious in nature. The petitioner was found guilty of manipulating the records in the guise of rendering assistance to a corporate customer. It was the petitioner who operated the accounts of the customer and withdrawn funds without even getting the signature of the customer in the voucher or any other document for transaction. There was no record or confirmation received from the customer to withdraw the amount. As an officer authorised, the petitioner has allowed withdrawal of the amount from the account of the customer without the signature of the account holder and withdrew huge amount. It was not an isolated incident where the petitioner has withdrawn money in such fashion. Wherever the petitioner was posted, the accounts were also transferred to that bank branch and he indulged in similar activities which proved detrimental to the functioning of the bank.
10. The learned counsel for the respondents would contend that an enquiry was conducted for which initially the petitioner was sent notice for appearance but he did not appear. Thereafter, in the presence of the petitioner, witnesses were examined and documents were marked. It is true that the petitioner has sent a letter for postponing the enquiry. The enquiry officer permitted the same and only adjourned the enquiry to some other date to enable him to cross-examine the witnesses. During the course of enquiry, the petitioner submitted two letters on 10.01.2013 and 17/24.01.2013 to the enquiry officer raising certain queries for which a reply dated 11.02.2013 was sent clarifying the doubts raised by him. Thereafter, when enquiry was conducted on 28.02.2013, the petitioner along with his defence representative appeared and perused the documents. On the side of the petitioner, 32 documents were marked and on 01.03.2013, the presenting officer marked some documents. During the course of marking of documents, the petitioner did not raise any objection. In fact, the defence representative of the petitioner elaborately cross-examined the management witnesses. Even the Presenting Officer's brief was forwarded to the petitioner on 22.05.2013 and he was asked to submit his written brief in 15 days. The enquiry officer, considering the entire material records, submitted a detailed report on 30.08.2013 holding that the petitioner is guilty of 9 charges relating to the transactions took place in Spencer Plaza Branch of the Bank and they were duly proved against him; 5 charges as partly proved and three charges as not proved. As regards the charges relating to the transaction that took place at Dr. R.K. Salai Branch, the enquiry officer found the petitioner guilty of 2 charges and one charge as partly proved. The petitioner was however exonerated against one charge framed against him with regard to this branch. With regard to Aminjikarai Branch, one charge was held to be proved and the other two as partly proved. With regard to Adambakkam Branch, one charge was proved and the other charge was partly proved. Having regard to the nature of the proved charges against the petitioner, the disciplinary authority found that the petitioner only deserves a punishment of dismissal and it was also confirmed by the appellate authority. Thus, according to the learned counsel for the respondent, the order of dismissal passed against the petitioner is preceded by a valid enquiry in which adequate opportunity was given to the petitioner.
11. The learned counsel for the respondent relied on the decision of the Honourable Supreme Court in the case of (State of U.P. and others and Nand Kishore Shakula and another) (1996) 3 Supreme Court Cases 750 wherein it was held that the High Court could not interfere with the order of removal passed by the disciplinary authority on the mere ground that it was doubtful as to whether the disciplinary authority would have passed the order of removal only on the basis of a single charge. In the present case, the contention of the petitioner that only one witness was examined by the bank and therefore the enquiry proceedings are vitiated cannot be accepted. When the petitioner subjected himself to the disciplinary proceedings fully and he was assisted by a representative, it cannot be contended that adequate and sufficient opportunity has been afforded to him.
12. The learned counsel for the respondent also relied on the decision of the Honourable Supreme Court in the case of (Disciplinary Authority-cum-Regional Manager and others vs. Nikunja Bihari Patnaik) (1996) 9 Supreme Court Cases 69 = 1996 (2) Labour Law Notes 92 to contend that for imposing a punishment of dismissal or removal from service, the department is not required to adduce evidence to show that they have sustained loss by the omission and commission attributable on the part of the delinquent.
13. Reliance was also placed by the learned counsel for the respondent on the decision of the Honourable Supreme Court in (Tara Chand Vyas vs. Chairman and Disciplinary Authority and others) (1997) 4 Supreme Court Cases 565 to contend that the employees and officers working in the banks are not merely trustees of the society but also bear responsibility and owe duty to the society for effectuation of socio-economic empowerment. Their acts and conduct should be in discharge of that constitutional objectives and if they derlict in the performance of their duty, it impinges upon the enforcement of the constitutional philosophy, objective and the goals under the rule of law. In that case before the Supreme Court also, it was contended that enquiry was vitiated for non-adherence of procedures. The Honourable Supreme Court, while upholding the punishment, held that the enquiry officer elaborately discussed each and every charge by giving reasons and that the departmental authorities were not like Civil Courts.
14. The learned counsel for the respondent further relied on the decision of the Honourable Supreme Court in (State Bank of India and another vs. Bela Bagchi and others) 2005 4 LLN 1 to contend that customer of a bank need not be examined. It was held by the Honourable Supreme Court in that case that mere contention that the account holder has no grievance over the act of the bank employee and there was no loss of money to bank is sans substance. For the same proposition, the respondent also relied on the decision of the Honourable Supreme Court reported in (Debotosh Pal Choudhury vs. Punjab National Bank and others) (2002) 8 SCC 68. Relying on this decision, the learned counsel for the respondent would contend that the contention of the petitioner that there was no loss of money to the bank has no basis or nexus to the delinquency committed by him which largely depends on the trust reposed on the bank on the petitioner.
15. The learned counsel for the respondent would further contend that the petitioner held a post of Trust in a Public Sector Bank. The petitioner is expected to transact the banking business with the written authroisation or voucher or challan or cheque of the customer. In this case, the petitioner withdrawn money without any authorisation or challan or voucher issued by the customer and therefore, the bank has lost the confidence reposed on him. In such event, punishment of dismissal from service is proper and justifiable one and it needs no interference by this Court.
16. I heard the learned counsel for both sides and considered their submissions. I perused the material records such as report of the enquiry officer, order passed by the disciplinary authority as well as the appellate authority along with the documents annexed in the typed set of papers.
17. At the outset, it has to be noted that the charges levelled against the petitioner are serious in nature. The petitioner, an officer of the respondents bank has indulged in withdrawal of huge amount without any authorisation or voucher signed by the account holder. The allegation against the petitioner is that he has withdrawn amount to the tune of Rs.20 lakhs without following the norms of the bank. Such withdrawal of amount has not been confined to one bank branch where he was posted, but it was extended to the other branch of the bank where he was posted. Therefore, it cannot be construed that the allegations levelled against the petitioner are mere procedural irregularity or a bonafide omission.
18. The learned Senior counsel for the petitioner would contend that the impugned order passed by the disciplinary authority is without authority of law and the disciplinary authority has no jurisdiction to pass the order of punishment. According to the learned Senior counsel for the petitioner, it is the Deputy General Manager who has to pass the order of punishment and not the General Manager/ Disciplinary Authority in this case. Repudiating such contention, the learned counsel for the respondent would contend that a common enquiry was conducted as against the delinquent officers who are Class I and Class II Officer. In such an event, the General Manager is competent to pass the order of punishment as against all the delinquent Officers, including the petitioner. Having regard to such submission made by the learned counsel for the respondent, I find that when varied classes of officers were subjected to disciplinary proceedings, the disciplinary authority in this case, being the General Manager of the Bank alone is competent to pass the order of punishment and therefore the averments raised by the petitioner as regards the jurisdiction of the disciplinary authority has to be rejected.
19. As regards the enquiry proceedings, it is seen that the petitioner participated in the enquiry and he was assisted by a representative. According to the petitioner, during the course of enquiry, he was not given sufficient and adequate opportunity to putforth his defence. It is also his contention that except the investigation officer, no one was examined on the side of the management and there is no specific evidence made available against him. When the petitioner tendered a letter dated 13.08.2013 seeking to examine some of the witnesses, it was not considered by the enquiry officer or the disciplinary authority, thereby the entire enquiry proceedings stands vitiated. The appellate authority has not taken note of the impact of the order of dismissal passed against the petitioner especially when the enquiry itself was not properly concluded. Even during the pendency of the appeal, the petitioner has given a letter dated 17.04.2014 when he was afforded an opportunity of personal hearing. However, the appellate authority failed to consider the letter dated 17.04.2014 and therefore, the order passed by the disciplinary authority as well as the appellate authority are liable to be set aside.
20. On perusal of the enquiry proceedings, it is seen that the petitioner has given a letter dated 13.08.2013, whereas, the enquiry itself was concluded on 01.03.2013. In other words, only after conclusion of the enquiry proceedings, the petitioner has given the letter dated 13.08.2013 to examine some witnesses. For the reasons best known, the petitioner has not sought for examining the witnesses at the earliest point of time when the enquiry was in progress.
21. It is seen from the enquiry proceedings that the petitioner was given due opportunity to putforth his defence. The petitioner was also assisted by a representative of his choice. The representative of the petitioner cross-examined the witness examined by the management. Having regard to the above, the enquiry officer submitted his report to the disciplinary authority, which was also served on the petitioner. Thereafter, the disciplinary authority passed the order of dismissal from service. To be specific, the enquiry was conducted in compliance with the principles of natural justice in which the petitioner fully participated and cross-examined the witness. Therefore, I do not see any reason to hold that the enquiry conducted against the petitioner is vitiated for non-adherence of certain procedures.
22. As regards the quantum of punishment, it is seen that the disciplinary authority has imposed varied punishment to the delinquent officers in accordance with the role played by them in the commission of offence and the responsibility shouldered by them. As regards the petitioner is concerned, he was imposed with capital punishment, which according to him is disproportionate to the charges, excessive and harsh.
23. The averment of the petitioner that the customer of the bank has not been examined is not sustainable. It is well settled that a customer of the bank need not be examined in the departmental proceedings. Further, merely because the account holder has no grievance and there was no loss caused to the bank it will not be a ground to invalidate the order of punishment, which according to the petitioner is discriminatory and unreasonable. In this context, useful reference can be made to the decision of the Honourable Supreme Court in (State Bank of India and another vs. Bela Bagchi and others) 2005 4 LLN 1 relied on by the learned counsel for the respondent wherein in Para No.15 of this judgment, it was held as follows:-
"15. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/ employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager and others vs. Nikunja Bihari Patnaik (1996 (2) LLN 92) it is no defense available to say that there was no loss or profit in the case when the officer/ employee acted authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance."
24. In the present case also, the petitioner unilaterally withdrawn money from the account of the customer without any authorisation or voucher and thereby lost the confidence reposed on him by the bank. In such a situation, merely because there was no loss of money caused to the bank, it will not be a ground for the petitioner to question the order of punishment imposed on him.
25. in (Tara Chand Vyas vs. Chairman and Disciplinary Authority and others) (1997) 4 Supreme Court Cases 565 relied on by the learned counsel for the respondent, it was held by the Honourable Supreme Court in para No.3 that merely because there is no witness examined on behalf of the department, it will not vitiate the enquiry proceedings. In para No.3, it was held as follows:-
"3. Shri. B.D. Sharma, learned counsel for the petitioners, contends that for proof of the charges none of the witness was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the impugation of charges was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by security adequate security before the grant of the loans to the dealers, and had not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think that there is any manifest error apparent on the face of the record warranting interference. It is then contended that no reasons have been given in support of the conclusions to substantiate the charges. The enquiry officer had elaborately discussed each charge and given reasons which were considered by the disciplinary authority and reached the conclusion that the charges were proved. So had the appellate authority. They are not like a civil court."
26. In the present case, the petitioner contends that only one witness was examined to substantiate the charge against him. Admittedly, the sole witness was cross-examined by the representative of the petitioner. The petitioner has not raised any prejudice having been caused to him by reason of examination of only one witness at the time of enquiry. Therefore, this contention urged on behalf of the petitioner has to be rejected.
27. Having regard to the above analysis of facts coupled with the fact that the petitioner has fully and adequately participated in the enquiry conducted by the respondents in which most of the allegations levelled against the petitioner has been held proved, this Court finds it difficult to accept the contentions urged on behalf of the petitioner that the enquiry has not been conducted in accordance with law. Even as regards the quantum of punishment, I only find that the charges levelled against the petitioner are very serious in nature. The petitioner, as a responsible officer of the bank, is expected to exercise higher standards of honesty and integrity, instead he has indulged in withdrawal of the amount unilaterally on his own and thereby violated the norms of the bank. At any rate, the enquiry officer has given very many reasons for his conclusion to hold that most of the charges against the petitioner are proved and they are based on material evidence putforth during the course of enquiry. The disciplinary authority also, having regard to the findings rendered by the enquiry officer, thought it fit to impose the punishment of dismissal from service even though he has inflicted varied punishment to the other charged officer. In such view of the matter, I do not find any reason to interfere with such an order passed by the disciplinary authority
28. The learned Senior counsel for the petitioner vehemently argued that pending appeal, a personal hearing was afforded to the petitioner and at that time, the petitioner has submitted a letter dated 17.04.2014 to the appellate authority. The said letter submitted by the petitioner is also evident from the record of proceedings on the file of the appellate authority. In and by the said letter dated 17.04.2014, it was stated by the petitioner that he could not disclose several incidents due to the presence of a third person at the time of such personal hearing, whose identity was known to him. In and by the said letter, the petitioner has also brought to the notice of the appellate authority certain facts for consideration. According to the learned Senior counsel for the petitioner, the appellate authority, atleast should have taken the letter dated 17.04.2014 of the petitioner into consideration. On the contrary, the appellate authority went on to hold that the petitioner has not brought to his notice any new facts or produced any other evidence for his consideration. Such an order passed by the appellate authority is contrary to the material evidence on record. When the appellate authority received the letter dated 17.04.2014 from the petitioner, without referring it in the order of confirmation or giving any finding thereof, the order of the appellate authority confirming the order of the disciplinary authority is vitiated for non-consideration of material particulars.
29. I find considerable force in the submission of the learned Senior counsel for the petitioner. It is seen from the order dated 08.05.2014 of the Appellate Authority that while considering the evidence of the enquiry officer as also the conclusion arrived at by the disciplinary authority, the appellate authority has grossly ignored the letter dated 17.04.2014 submitted by the petitioner. In fact, the appellate authority held that the petitioner has not brought any new facts or he has not produced any new material evidence for consideration when admittedly the appellate authority has received the letter dated 17.04.2014 of the petitioner. In the order dated 08.05.2014 of the appellate authority, it is stated as follows:-
"In your submissions made in the appeal as well as in the personal hearing, apart from alleging that the disciplinary authority had passed the order in a casual manner, you had not produced any new facts or evidences to reconsider the decision of the Disciplinary Authority.
I find no new facts/evidence to reconsider/modify the decision of the disciplinary authority. Hence, I find that the penalty of 'dismissal' already imposed by the Disciplinary Authority is justly warranted and necessary in the instant case.
In view of the foregoing, I do not find it necessary to interfere with the D.A.'s decision and as such, I confirm the penalty already awarded by the Disciplinary Authority on merits as well as on the quantum of penalty.
Your appeal, therefore, stands dismissed."
30. Thus, it is evident that the appellate authority has not considered the letter dated 17.04.2014 submitted by the petitioner during the pendency of the appeal. The appellate authority ought to have considered the letter dated 17.04.2014 while passing the order of confirmation by giving some reasons. In this context, it would be useful to refer to the decision of the Honourable Supreme Court in the case of ([2008] 16 VST 181 (SC), Steel Authority of India Limited vs. Sales Tax Officer, Rourkela-I Circle and others held that reasons are the heart beat of any conclusion. In this case, in the order of the appellate authority, no reason at all has been given for not considering the letter dated 17.04.2014 of the petitioner.
31. In the decision rendered by the Karnataka High Court n the case of (A.M. Sugunasundaram vs. Syndicate Bank, Manipal) reported in ILR 2001 Karnataka 4052, which was relied on by the learned Senior counsel for the petitioner, it was held that an when an order of removal is not preceded by a valid enquiry or the enquiry was not conducted fairly and legally, such enquiry is vitiated. It was further held that if the delinquent is able to establish that prejudice has been caused to him, the punishment preceded by such enquiry is vitiated.
32. In this context, as mentioned supra, this Court finds no reason to interfere with the order passed by the disciplinary authority. However, this Court is of the view that when the petitioner could establish prejudice having been caused to him by raising certain facts in the letter dated 17.04.2014 before the appellate authority, the appellate authority is expected to consider the letter dated 17.04.2014. In fact, in the letter dated 17.04.2014, the petitioner has brought to the notice of the appellate authority that prejudice has been caused to him by reason of the varied punishments imposed on the delinquents and therefore the punishment imposed on him by the disciplinary authority is grossly disproportionate, harsh and excessive. According to the petitioner, the officers, who were also subjected to disciplinary proceedings along with him were either imposed with minor punishment such as increment cut etc., or let of or exonerated from the charges. However, he alone has been discriminated by imposing major punishment of dismissal from service. In such event, this Court is of the view that the appellate authority ought to have considered the letter dated 17.04.2014 especially when it is shown by the petitioner that prejudice has been caused to him in the matter of infliction of varied punishment to the delinquents who are subjected to disciplinary proceedings by the disciplinary authority. As the letter dated 17.04.2014 has not been considered by the appellate authority, this Court is only inclined to issue a direction to the appellate authority to consider the letter dated 17.04.2014 of the petitioner leniently and to pass appropriate orders on the statutory appeal preferred by the petitioner, including the quantum of punishment imposed by the disciplinary authority.
33. In such view of the matter, this Court is of the view that the order dated 08.05.2014 of the appellate authority alone is liable to be set aside for non-consideration of the letter dated 17.04.2014 of the petitioner. The appellate authority shall consider the letter dated 17.04.2014 of the petitioner with respect to the grounds mentioned therein. Further, the request of the petitioner that varied punishment has been given to delinquents who are subjected to disciplinary proceedings and he alone has been inflicted with capital punishment of dismissal from service may also be considered by the appellate authority after affording the petitioner an opportunity of hearing. Thereafter the appellate authority shall pass orders on merits and in accordance with law.
34. In the result, the order dated 30.10.2013 of the disciplinary authority is confirmed and the order dated 08.05.2014 of the appellate authority/second respondent herein is set aside. The writ petition is partly allowed. The matter is remanded back to the appellate authority for fresh consideration of the statutory appeal preferred by the petitioner as indicated above in the preceding paragraph. No costs. Connected MP No. 1 of 2014 is closed.
31.08.2016 rsh Index : Yes / No Internet : Yes / No To
1. The Chairman and Managing Director Indian Overseas Bank 763, Anna Salai Chennai - 600 002
2. The Appellate Authority/Executive Director (ADMC) Indian Overseas Bank 763, Anna Salai Chennai - 600 002
3. The Disciplinary Authority/General Manager (NKG) Indian Overseas Bank 763, Anna Salai Chennai - 600 002 B. RAJENDRAN, J rsh WP No. 15462 of 2014 31.08.2016