Madras High Court
State Bank Of India vs N.Palanisamy on 2 February, 2022
Author: Pushpa Sathyanarayana
Bench: Pushpa Sathyanarayana, Krishnan Ramasamy
W.A.No.22 of 2020 and C.M.P. No.287 of 2020
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 12.08.2021
PRONOUNCED ON : 02.02.2022
CORAM
THE HONOURABLE MRS. JUSTICE PUSHPA SATHYANARAYANA
AND
THE HONOURABLE MR.JUSTICE KRISHNAN RAMASAMY
W.A.No.22 of 2020 and
C.M.P. No.287 of 2020
1.State Bank of India
Rep. by its Chairman & Managing Director
Corporate Centre, Post Box No.12
Mumbai 400 021
2.The Reviewing Committee
Appeals & Review Department
Corporate Centre, Post Box No.12
Mumbai 400 021
3.The Chief General Manager
State Bank of India
Local Head Office, "Circletop House",
16, College Lane, Nungambakkam
Chennai - 600 006
4.The General Manager-1
HR Department, LHO
State Bank of India
Local Head Office, "Circletop House"
16, College Lane, Aparna Complex
Chennai - 600 006 .. Appellants
Vs.
N.Palanisamy .. Respondent
____________
Page No.1/26
https://www.mhc.tn.gov.in/judis
W.A.No.22 of 2020 and C.M.P. No.287 of 2020
***
Prayer : Writ Appeal filed under Clause 15 of Letters Patent against
the order dated 23.10.2019 in W.P.No.57 of 2012.
***
For Appellant : Mr.S.Ravindran, Senior Counsel
for Mr.K.Chandrasekaran
For Respondents : Ms.R.Vaigai, Senior Counsel
for Mr.K.M.Ramesh
JUDGEMENT
PUSHPA SATHYANARAYANA, J.
This intra-court appeal is filed by the State Bank of India against the order dated 23.10.2019 made in W.P.No.57 of 2012, allowing the writ petition by setting aside the order passed by the 4th appellant dated 05.01.2005 dismissing the respondent from service, which was confirmed by the third appellant and the review of which was also rejected by the second appellant.
2. The respondent herein joined the appellant bank as a clerk on 15.09.1978 and was promoted as Junior Management Grade-I on 01.08.1988. He was further promoted as Middle Management Grade-II on 21.08.2001, with effect from 01.11.1996. He was functioning as ____________ Page No.2/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 Branch Manager of Swaminathapuram Branch, Palani Taluk, Dindigul District from 30.6.1995 to 25.02.2002. Thereafter, he was transferred to Commercial Branch, Tiruppur as Deputy Manager, wherein he was issued with an order of suspension on 03.02.2003. A charge memo was issued on 16.09.2003 based on a preliminary report and thereafter, after enquiry, the respondent was terminated from service on 05.01.2005. An appeal preferred before the third respondent was rejected on 02.07.2005 and also the review filed by him was rejected by the authorities on 20.04.2009.
3. The allegations against the respondent are that when he was working as Branch Manager in the appellant bank, he committed certain misconducts: (1) The respondent had unauthorisedly sanctioned sundry loans amounting to Rs.29.00 Lakhs to 10 of the account holders in respect of bank deposits held by them and credited to his S.B. Account No.18/2546 during February 2000 to July 2001. (2) During the same period, the respondent had unauthorisedly transferred amounts totalling to Rs.9,29,000/- from five customers, to his bank account. (3) The respondent also has sanctioned loans totalling to Rs.3.49 Lakhs to 11 customers, but transferred them to his S.B. Account, which was admitted by him in his letter dated 20.12.2002. (4) In respect of eight customers, the respondent had sanctioned loan ____________ Page No.3/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 amounting to Rs.8.67 Lakhs without security either by mortgage or immovable property or third party guarantee and also sanctioned additional loans to the same borrowers. The respondent also had not adverted to the materials alterations in the document sanctioning loans in respect of persons, who are residing beyond the service area of the branch and sanctioned loans based on old loan documents and loan document of other persons.
4. The further charge was that the respondent had disproportionate cash remittance to his known source of his income in his S.B. A/c No.18/2546. In respect of a customer, namely S.Venkatachalam, the respondent did not make entries of the remittance in the bank records after making entires in the pass-book. In this regard a letter was given by the respondent on 20.12.2002 wherein he has accepted that he had sanctioned the loans to several persons without obtaining the land records and closed the accounts with the altered land records, etc. The respondent also had given a list of names and the type of loan that were sanctioned to various persons like Kissan Credit Card (KCC) and Agricultural Cash Credit (ACC). He has further stated that the funds borrowed in the name of borrowers, were all repaid and closed.
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5. On 03.02.2003, the respondent was placed under suspension on the grounds of serious irregularities/lapses while servicing as Branch Manager in Swaminathapuram Branch. Thus following Rule No.50(4) of State Bank of India Officers Service Rules, 1992, the respondent had written to the authorities on 27.03.2003 requesting them to revoke the order of suspension.
6. As many as 14 charges were framed against the respondent of which, 11 and 14 were held to be partly proved and the other charges were fully proved. An explanation was given by the respondent on 20.10.2003. The enquiry report was filed on 19.07.2004, which was conducted in the trial and the report concluded that excepting Charge Nos.11 and 14, which were partly proved, the rest of the charges were proved. By order dated 05.01.2005, the respondent was dismissed from service and his appeal and review were also dismissed. The above dismissal order was challenged before this court in W.P. No.57 of 2012 and the learned single Judge, by order dated 23.10.2019, held that the charges relating to the alleged un-authorised transactions of loan amount from the customers' accounts to the respondent's SB Account, were not proved. In respect of charges relating irregularities in sanctioning of the loan, it was held by the writ court that it was only a ____________ Page No.5/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 procedural flaw and no loss was caused to the bank.
7. Regarding Charges 1 to 3, the learned Judge had found that the deposit holders, who were examined before the Enquiry Officer, had admitted that they only came to the bank, borrowed money and executed the document. The monies borrowed were lent to one Marathal, who is none other than the wife of the writ petitioner. The Enquiry Officer rejected the evidence of the depositors, as the borrowed monies in their names, were given to the said Marathal, without any security. The findings of the Enquiry Officer regarding charges 1 to 3 were that DW2 and DW4 have specifically deposed that they did not know about the extension of the equitable mortgages cover to the additional facility. Similarly, DW7 also had stated that he did not remember anything with regard to the extension of the equitable mortgage cover to the additional facility. Similarly, the documentary evidences Exs.P49, 62 to 73 would go to prove that the additional crop loans were sanctioned to the same borrowers. Therefore, the Enquiry report had held that when the equitable mortgages were not extended to cover the additional facilities, but the borrowers were allowed to enjoy different credit facilities. However, the learned single Judge had found that the appellant bank had not produced any material or evidence to prove the fact that the depositors ____________ Page No.6/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 mentioned in charges 1 to 3 did not borrow and execute the documents and further held that there is no evidence to show that the writ petitioner/respondent had sanctioned sundry loans and credited them to his joint account and wrongfully utilised the amounts for his personal benefits.
8. The finding of the learned single Judge is different from the opinion of the Enquiry Officer in this regard. Even with respect to charges 4 to 12, the finding of the Enquiry Officer was that DW9 and DW1 appeared before the Enquiry Officer and the Enquiry Officer had found them to be ambiguous. Though DW9 had stated that she did not own any land in her name, but cultivated the land in the name of her daughter, the finding was otherwise.
9. Similarly, charge No.7 also was found against the respondent on the basis of Exs.P77 to P81, wherein crop loans were sanctioned and disbursed by CSO to the parties as per the details mentioned in the statement of imputations. But the copies of Chitta and adangal enclosed shows that the names of the borrowers had been clandestinely included by obliterating the original names appeared therein. Further, the letters of the Village Administrative Officer in Exs.P82 and 83 confirm that the said borrowers were not available in ____________ Page No.7/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 the given addresses. From the above act also, the respondent was found guilty of sanctioning loans with altered land records. Same was the allegations with respect to KCC. The delinquent officer had sanctioned KCC loan to one K.Palanichamy s/o.Kandasamy Gounder, Kumarapalayam, based on the land records in the name of M.Palanichamy S/o.T.Murugesa Gounder, Kumarapalayam. The delinquent officer had failed to identify the borrower before sanctioning the loan. The particulars of the same land holdings have been incorporated in the loan applications Exs.P100 and 101. These findings were also proved as per the enquiry report, as the delinquent officer himself had admitted the fact. The above said findings of the enquiry officer and the report, were simply held it to be a procedural lapse by the learned single Judge and further it was held that the bank had not suffered financial loss due to the procedural lapses on the part of the respondent/writ petitioner.
10. As regards charge No.13, which related to the disproportionate cash remittance to the delinquent officer's known sources of income, upon enquiry, it was found that a number of high value debit and credit entries had been routed through the account. The balance in the account had reached the highest level of Rs.18.50 Lakhs as on 17.07.2001. It was stated by the delinquent officer that ____________ Page No.8/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 his wife Marathal had obtained temporary loans from various customers of the bank, repayable in one or two days and credited the same into the said account for the purpose of showing a sizeable balance in order to procure visa for their son's higher education abroad. The Enquiry Officer had found that the delinquent officer ought not to have indulged in such dubious transactions, especially when he was dealing with public money and gave a finding against him. The above said delinquency is also held in favour of the respondent by the learned single Judge, as the actual borrowers did not complain about the irregularity committed by the respondent. Therefore, the amounts deposited in the name of his wife would not amount to disproportionate remittance to the known source of income of the petitioner and held that said charge was also not proved.
11. Similarly, charge No.14, which was partly said to have been proved as per the report of the Enquiry Officer, was said to have been disproved as per the findings of the learned Single Judge.
12. The learned counsel appearing for the appellant bank argued that the enquiry report of the authorities/fourth appellant was based on records and it was absolutely untenable to state that the recordings of the findings are done in a mechanical manner. The confession letter given by the delinquent officer was not discredited. Even excluding the ____________ Page No.9/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 same, there were ample evidences to substantiate the charges framed against him. The delinquent officer had not even chosen to examine himself and therefore the counsel urged that an adverse inference has to be drawn against him.
13. It was submitted that the order of the learned single Judge in setting aside the order of termination, by re-appreciating the evidence as an appellate court, is unsustainable and placed his reliance in the decision of the Hon'ble Apex Court in G.M. (Operations) S.B.I. vs. R.Periyasamy reported in (2015) 3 SCC 101. The learned counsel appearing for the bank added that, in order to prove the charges in a domestic enquiry, it is only the preponderance of probabilities and only when there is no evidence, the findings of the enquiry officer can be set aside. In the instant case, the report of the enquiry officer had analysed the evidence threadbare and had categorically found that the delinquent officer had abused his power as Manager to sanction loans to various persons even without any security. Besides the witnesses, who have deposed during the enquiry, the documents maintained in the course of the banking transactions proved by itself that the delinquent officer had used his powers to sanction the loans randomly. Placing reliance on the decision of the Hon'ble Apex Court in State Bank of India vs. Narendra Kumar Pandey reported in (2013) 2 ____________ Page No.10/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 SCC 740, the learned counsel contended that the charges are proved from the documents available in the normal course of business, no oral evidence or any other evidence is necessary to prove the charges. However, the learned Judge had held that non-examination of the depositors was fatal to the case of the bank as they have not given any individual complaint. Even presuming that the delinquent officer had power to sanction loans without security, there is no authority for him to transfer the amounts from their accounts to his account. Certainly the above said act is a misconduct on the part of the respondent. Though two of the witnesses have stated that they had authorised the delinquent officer to transfer amount to his account, the other eight customers have pleaded ignorance of the same. In support of his contention, the learned counsel placed his reliance on the decision of the Hon'ble Supreme Court in Disciplinary Authority-cum-Regl. Manager v. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69.
14. Regarding charge No.13, whether the amount sanctioned by the delinquent were credited to the account of his wife, as if it was a personal borrowing by his wife is an unauthorised act and it is a deliberate act of abuse of power.
15. Per contra, Ms.R.Vaigai, learned senior counsel appearing for the delinquent officer, who is the respondent, contended that the ____________ Page No.11/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 scope of interference in this writ appeal is delineated. She supported the order of the learned single Judge on the ground that there was no complaint from any of the customers that the amounts sanctioned in their names were deposited in Manager's account. There was no whisper from any of the borrowers that the Bank Manager had used their money thereby cheating the bank. She supported the transactions of these borrowers as that of borrowal from the friends and in the absence of any complaint by any of the loanees that it is an unauthorised transaction, the same cannot be called as a delinquent act. There was no criminal complaint given by any of the borrowers and all those documents that were marked in the proceedings were not marked in the manner known to law through any witness and therefore, they are unacceptable as the delinquent officer had already put in 27 years of service and there was no FIR filed against him and the bank also did not suffer any monetary loss nor it lost its customers. The writ court, had rightly set aside the order. In support of the said contention, the learned senior counsel placed her reliance on the decision of the Hon'ble Apex Court in Roop Singh Negi vs. Punjab National Bank & Others reported in (2009) 2 SCC 570, wherein, paragraph Nos.14, 18, 21 and 23 read thus:
"14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a ____________ Page No.12/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 quasi-judicial function. The charges levelled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the investigating officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the enquiry officer on the FIR which could not have been treated as evidence.
18. In Narinder Mohan Arya v. United India Insurance Co. Ltd. [(2006) 4 SCC 713 : 2006 SCC (L&S) 840] whereupon both the learned counsel relied, this Court held:
(SCC p. 724, para 26) “26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das [(1970) 1 SCC 709] .) (2) In ____________ Page No.13/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India [AIR 1958 SC 300 : 1958 SCR 1080] and State of U.P. v. Om Prakash Gupta [(1969) 3 SCC 775] .) (3) Exercise of discretionary power involves two elements—(i) objective, and
(ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L. Tripathi v. SBI [(1984) 1 SCC 43 : 1984 SCC (L&S) 62] .) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan [(1986) 3 SCC 454 : 1986 SCC (L&S) 662] .) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-
matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra [(1987) 2 Cal LJ 344] .) (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain [AIR 1969 SC 983 : (1969) 1 SCR 735] and Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10 : 1999 SCC (L&S) 429] .)” ____________ Page No.14/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020
21. Yet again in M.V. Bijlani v. Union of India [(2006) 5 SCC 88 : 2006 SCC (L&S) 919] this Court held: (SCC p. 95, para 25) “25. … Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”
23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a ____________ Page No.15/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."
16. The learned senior counsel also relied on yet another decision of the Hon'ble Apex court in Union of India and others vs. Gyan Chand Chattar reported in (2009) 12 SCC 78, wherein, in paragraphs 21, 31 and 34, it has been held thus:
"21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities.
31. In Municipal Committee, Bahadurgarh v. Krishnan Behari [(1996) 2 SCC 714 : 1996 SCC (L&S) 539 : AIR 1996 SC 1249] this Court held as under: (SCC p. 715, para 4) “4.…In a case of such nature—indeed, in cases involving corruption—there cannot be any other punishment than dismissal. Any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated ____________ Page No.16/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 may be small or large; it is the act of misappropriation that is relevant.” Similar view has been reiterated by this Court in Ruston & Hornsby (I) Ltd. v. T.B. Kadam [(1976) 3 SCC 71 : 1976 SCC (L&S) 381 : AIR 1975 SC 2025] , U.P. SRTC v. Basudeo Chaudhary [(1997) 11 SCC 370 : 1998 SCC (L&S) 155] , Janatha Bazar (South Kanara Central Coop. Wholesale Stores Ltd. v. Sahakari Noukarara Sangha [(2000) 7 SCC 517 : 2000 SCC (L&S) 962] , Karnataka SRTC v. B.S. Hullikatti [(2001) 2 SCC 574 : 2001 SCC (L&S) 469 : AIR 2001 SC 930] , Rajasthan SRTC v. Ghanshyam Sharma [(2002) 10 SCC 330 : 2003 SCC (L&S) 714] , NEKRTC v. H. Amaresh [(2006) 6 SCC 187 : 2006 SCC (L&S) 1290 : AIR 2006 SC 2730] and U.P. SRTC v. Vinod Kumar [(2008) 1 SCC 115 : (2008) 1 SCC (L&S) 1] , wherein it has been held that the punishment should always be proportionate to gravity of the misconduct. However, in a case of corruption, the only punishment is dismissal from service. Therefore, the charge of corruption must always be dealt with keeping in mind that it has both civil and criminal consequences.
34. In Sawai Singh v. State of Rajasthan [(1986) 3 SCC 454 : 1986 SCC (L&S) 662 : AIR 1986 SC 995] this Court held that even in a domestic enquiry, the charge must be clear, definite and specific as it would be difficult for any delinquent to meet the vague charges. Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not save the enquiry from being vitiated for the reason that there must be fair play in action, particularly, in respect of an order involving adverse or penal consequences.
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17. The writ court also had not set aside the order of dismissal but only modified the same into one of compulsory retirement. It has only stated that the period from 03.02.2003 to 31.03.2013, the date of superannuation, shall be calculated for terminal and pensionary benefits alone of the delinquent and the delinquent will not be entitled to any salary from the date of dismissal till the date of superannuation. Therefore, it was argued that the bank cannot have any grievance in treating the order of dismissal into one of compulsory retirement.
18. Heard both parties and perused the materials available on record.
19. The case of the appellants is that when the respondent was working as Branch Manager in the appellant bank, he committed certain misconducts and irregularities. Fourteen charges were framed against the respondent, of which 12 charges were fully proved and 2 charges were partially proved. Hence the respondent was vested with a dismissal order. Challenging the said dismissal order, the respondent herein had filed an appeal followed by a review, but the same were unsuccessful. As against the dismissal order, the respondent herein had filed a writ petition in W.P. No.57 of 2012 and the same was ____________ Page No.18/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 allowed holding that charges 1 to 3 were proved, as the bank did not examine the depositors and as regards the charges 4 to 12 and 14 levelled against the respondent herein were procedural lapses and that the respondent was not entitled to any salary from 03.02.2003 to 31.03.2013, the date of superannuation, but the same shall be counted for terminal benefits as well as for pensionary benefits and further held that the respondent is not entitled to any salary from the date of dismissal till the date of his superannuation, but he is entitled to terminal benefits and pensionary benefits treating the period from 03.02.2003, the date of suspension to 31.03.2013, the date of superannuation as duty period. Aggrieved by the same, the bank has approached this court.
20. The Branch Manager of a bank is a pivotal one. He should command utmost confidence of the management. His devotion to duty should be unquestionable. Any financial dealing benefitting him personally by using/misusing customers money is unpardonable. Sanctioning of loans without adhering to the procedures and throwing the caution in open air, is a conduct shaking the very foundation of the bank. Whether bank suffered loss or not is irrelevant. 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 ____________ Page No.19/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 of socio-economic empowerment. Their acts and conduct should be in discharge of that constitutional objectives and if they derelict in the performance of their duty, it impinges upon the enforcement of the constitutional philosophy, objective and the goals under the rule of law.
21. In Disciplinary Authority-cum-Regional Manager and Others vs. Nikunja Bihari Patnaik reported in (1996) 9 SCC 69, the Hon'ble Apex Court held that when bank officer dismissed for acting beyond his authority in allowing advances and overdrawals, several of which became sticky and irrecoverable, the request of the delinquent to reduce the punishment cannot be accepted and the same was rejected. The relevant paragraph in the said judgment is extracted hereunder:
"8. We must mention that Shri V.A.Mohta, the learned counsel for the respondent, stated fairly before us that it is not possible for him to sustain the reasoning and approach of the High Court in this case. His only submission was that having regard to the age of the respondent (37 years) and the facts and circumstances of the case, this court may substitute the punishment awarded to the respondent by a lesser punishment. The learned counsel suggested that any punishment other than dismissal may be imposed by this court. We considered this request with the care it deserves, but we regret that we are unable to accede to it. The learned ____________ Page No.20/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 counsel for the Bank, Shri V.R.Reddy, Additional Solicitor General, also stated, on instructions of the Bank, that it is not possible for the Bank to accommodate the respondent in its service in view of his conduct."
22. In Mihir Kumar Hazara Choudhury vs. Life Insurance Corporation and Another reported in (2017) 9 SCC 404, the Hon'ble Supreme Court held that an employee while discharging his duties is required to exercise higher standard of honesty and integrity and take all possible steps to protect interest of his employer. It further held that when he deals with money of depositors and customers, because he deals with money transactions for and on behalf of his employer, any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct. In the said judgment, the Hon'ble Apex Court in parargraph 26 to 30, held as under:
"26. An employee, in discharge of his duties, is required to exercise higher standard of honesty and integrity. In a case where he deals with the money of the depositors and customers, it is all the more necessary for him to be more cautious in his duties because he deals with the money transactions for and on behalf of his employer. Every such employee/officer is, therefore, required to take all possible steps to protect the interest of his employer. He must, therefore, discharge his duties with utmost sense of integrity, ____________ Page No.21/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 honesty, devotion and diligence and must ensure that he does nothing, which is unbecoming of an employee/officer. Indeed, good conduct and discipline are inseparable from the functioning of every employee/officer of any institution and more when the institution deals with money of the customers. Any dereliction in discharge of duties whether by way of negligence or with deliberate intention or with casualness constitutes misconduct on the part of such employee/officer. (See some observations in Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain [Damoh Panna Sagar Rural Regional Bank v. Munna Lal Jain, (2005) 10 SCC 84 : 2005 SCC (L&S) 567] .)
27. There is no defence available to a delinquent to say that there was no loss or profit resulting in a case when officer/employee is found to have acted without authority. The very discipline of an organisation and especially financial institution where money is deposited of several depositors for their benefit is dependent upon each of its employee, who acts/operates within the allotted sphere as custodian of such deposit. Acting beyond one's authority by itself is a breach of discipline and thus constitutes a misconduct rendering the delinquent to suffer the adverse orders (see some observations in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik, (1996) 9 SCC 69 : 1996 SCC (L&S) 1194] ).
28. In our opinion, having regard to the seriousness of the charges coupled with virtually no defence taken by the appellant in answer to the charges and lastly, the findings of the enquiry officer, the punishment of dismissal was appropriate as provided in the service regulations and hence does not call for any leniency in awarding such punishment.
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29. The learned counsel for the appellant employee made sincere attempt in his oral as well as written submissions to find fault in the conducting of the departmental proceedings and also urging from interfering in the quantum of punishment by imposing lesser punishment but we are afraid we cannot interfere in either.
30. As held supra, the departmental proceedings were conducted strictly in accordance with law by following the principle of natural justice in which the appellant duly participated. The appellant neither set up any defence nor denied the factum of charges, yet the respondent proved the charges with the aid of relevant evidence, which found acceptance with the Division Bench and this Court too. As an appellate court, neither we can sit over the findings of the enquiry officer and find fault in it nor can we reappreciate the evidence of witnesses examined in departmental enquiry."
23. Applying the ratio of these decisions, we are of the view that the bank having proved the delinquency of the respondent by adducing documentary evidence, it cannot be stated that the charges against the respondent have not been proved. Now, coming to the quantum of punishment, whether it is disproportionate to his delinquency, in view of the aforesaid discussion and narration of facts, we are of the view that the quantum of punishment is shockingly disproportionate.
24. In the case on hand, though the learned single Judge, has held that some of the charges are not proved and some of the charges ____________ Page No.23/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020 against the respondent, are procedural lapses and held that the respondent is not entitled to salary from the date of suspension from service and till his superannuation, namely 31.03.2013, but entitled to terminal and pensionary benefits from the date of his suspension till the date of superannuation, in our considered view, is not sustainable in the eye of law. In the case on hand, the respondent joined the services of the bank on 15.09.1978 and that he had put in more than 26 years service till the date of his dismissal. Admittedly, the respondent was under suspension from 03.02.2003 and was dismissed on 05.01.2005 and he has attained the age of superannuation on 31.03.2013. Admittedly, in the case on hand, from the date of dismissal, namely 05.01.2005, the respondent was ceased to have been in service and that he was receiving subsistence allowance for no work from 03.02.2003 till the date of dismissal. When a person was held to be not eligible for salary for a particular period, the principle of "no work no pay" will apply. For the period one who had not worked and one who had ceased to have been dismissed from service, he is not entitled to any benefits, from the date of dismissal.
____________ Page No.24/26 https://www.mhc.tn.gov.in/judis W.A.No.22 of 2020 and C.M.P. No.287 of 2020
25. In view of the decisions quoted supra, while setting aside the order of the learned single judge insofar as ordering terminal and pensionary benefits from 03.02.2003 to 31.03.2013, we modify it to be a compulsory retirement from 05.01.2005, namely the date of dismissal and that the respondent is not eligible for any benefits beyond that date.
26. In the result, the writ appeal is allowed. The order of the learned single judge dated 23.10.2019 is set aside and modified to the effect that the respondent is deemed to have been voluntarily retired from 05.01.2005 and that the respondent is eligible for monetary and pensionary benefits up to that date alone namely, 05.01.2005. However, there is no order as to costs. Consequently, the connected civil miscellaneous petition is closed.
[P.S.N., J.] [K.R., J.]
02.02.2022
Index : Yes/No
Asr
PUSHPA SATHYANARAYANA, J.
AND
KRISHNAN RAMASAMY, J.
Asr
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W.A.No.22 of 2020 and C.M.P. No.287 of 2020
W.A.No.22 of 2020 and
C.M.P. No.287 of 2020
02.02.2022
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