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2010 DIGILAW 245 (MAD)

K. N. Anantha Raman v. Canara Bank & Another

2010-01-21

M.M.SUNDRESH, R.BANUMATHI

body2010
Judgment : R.BANUMATHI, J. This Writ Appeal is preferred against the dismissal order in W.P.No.2039 of 1990 dated 31.08.2001 challenging punishment of censure and recovery of a sum of Rs.31,000/-. 2. Appellant joined in the service of Respondents as a Clerk in 1970 and he was promoted as Accountant with effect from 01.07.1979 and posted at Delhi Diplomatic Enclave Branch till 15.11.1981. Thereafter, Appellant was transferred to Kanpur. At that time, Appellant was served with a charge memo alleging that Appellant had sanctioned an additional loan of Rs.62,000/-on 18.08.1981 against the Security of F.D.R.No.44/79 standing in the name of M/s.Carmel Convent School, contrary to the regulations of byelaws of the Apostolic Carmel Educational Society. Appellant submitted his explanation and in the enquiry, Enquiry Officer found that Petitioner had improperly granted the loan and charges have been proved. On the basis of the report submitted by Enquiry Officer, in its Proceedings dated 31.12.1988, Disciplinary Authority imposed punishment of censure and recovery of the entire loss of Rs.62,000/-. 3. Aggrieved by the order of Disciplinary Authority, Appellant preferred an Appeal. By the Proceedings dated 09.6.1989, Appellate Authority [Managing Director] reduced the amount to be recovered from the Appellant by 50%. Challenging the order of Appellate Authority, Appellant filed W.P.No.2039/1990. Observing that Appellant had sanctioned the loan and disbursed the amount and thereby Bank sustained loss to the tune of Rs.62,000/-, learned single Judge dismissed the Writ Petition which is challenged in this Writ Appeal. 4. Mr.N.G.R.Prasad, learned counsel for Appellant submitted that only the Bank Manager asked the Appellant to sanction Rs.62,000/-and learned single Judge erred in saying that Appellant had sanctioned the amount. It was further contended that earlier loan amounts were paid to V.Krishnan on the request of Sr.Joyce Lobo and therefore, Appellant had no doubt about its acceptability and it was under similar conditions, Appellant had sanctioned the loan. It was further argued that Banks letter [Ex.D9] supports stand of the Appellant. Grievance of the Appellant is that there was violation of principles of natural justice and inspite of direction from the Court, material witnesses were not examined by the Enquiry Officer. Placing reliance upon (2009) 2 SCC 541 [union of India and others v. Prakash Kumar Tandon], learned counsel for Appellant contended that departmental enquiry was not conducted fairly and therefore, presumption has to be drawn that prejudice has been caused to the Appellant. 5. Placing reliance upon (2009) 2 SCC 541 [union of India and others v. Prakash Kumar Tandon], learned counsel for Appellant contended that departmental enquiry was not conducted fairly and therefore, presumption has to be drawn that prejudice has been caused to the Appellant. 5. Countering the arguments, Mr.V.Karthik, learned counsel for Respondents submitted that if there is any negligence on the part of the earlier Officer, it does not mean the same has to be followed. Drawing Courts attention to Ex.M3, learned counsel for Respondents submitted that only the Appellant had sanctioned the amount and Enquiry Officer rightly recorded finding that there was no evidence of sanction of loan to Krishnan by Bank Manager. Placing reliance upon (2009) 8 SCC 310 [State of U.P. and another v. Man Mohan Nath Sinha and another], learned counsel for Respondents contended that exercising jurisdiction under Article 226 of Constitution only decision making process has to be tested and not merits of the decision. 6. There is no dispute that Appellant had disbursed a sum of Rs.62,000/- on the FDR No.44/79 standing in the name of M/s.Carmel Convent School. First contention of Appellant is that only the Manager has asked the Appellant to sanction the amount and Appellant had only disbursed the amount. Drawing our attention to Ex.M3, learned counsel for Appellant contended that in Ex.M3, Appellant had only signed as Accountant and while so, Enquiry Officer erred in finding that Appellant had sanctioned the amount. In his evidence, Management witness Mr.P.V.Naik has stated that Appellant himself sanctioned the advance which is evident in Ex.M3. In his evidence, Mr.P.V.Naik has further stated that Appellant had also signed on F-1228 amounts to sanctioning of advance. In Ex.M4-Debit slip dated 18.8.1981, Appellant had signed. Management witness Mr.P.V.Naik has stated that signature in Debit slip [Ex.M4] amounts to disbursal of the loan. Ex.M3 does not contain signature of Manager. Enquiry Officer rightly found that Appellant was not able to show any proof of sanction from the Manager incharge of the Branch. 7. Main plea of Appellant is that earlier Nagasamy and Kameshwar have also sanctioned the loan on FDR of Apostolic Carmel Educational Society on the strength of the letter given by Sr.Joyce Lobo and while so, the Authorities were not justified in saying that Appellant was responsible for sanction of additional loan of Rs.62,000/-on 18.08.1981. 8. 7. Main plea of Appellant is that earlier Nagasamy and Kameshwar have also sanctioned the loan on FDR of Apostolic Carmel Educational Society on the strength of the letter given by Sr.Joyce Lobo and while so, the Authorities were not justified in saying that Appellant was responsible for sanction of additional loan of Rs.62,000/-on 18.08.1981. 8. Learned counsel for Appellant mainly contended that it was the past practice to sanction loan on FDR on the request given by Sr.Joyce Lobo who was a Treasurer. It was submitted that Sr.Joyce Lobo is one of the member of governing body of Apostolic Carmel Educational Society and also signatory of Fixed Deposit Account and therefore, there was nothing wrong in disbursing the loan based on her letter. In support of his contention, learned counsel for Appellant placed reliance upon Ex.D9 [21.10.1985] sent by the Bank to the Principal of M/s.Carmel Convent School stating that "Sr.Joyce Lobo had been operating Savings Bank Account till recently and there was no reason for suspecting her bonafides". Appellant lays emphasis upon Ex.D9 where Senior Manager of the Bank has stated that "there has been no negligence on the part of the Bank and fraud if any in respect of Society/School rest squarely on Sr.Joyce Lobo". Learned counsel for Appellant contended that when the Bank itself has stated that there was no negligence on the part of the Bank, no negligence could be attributed to the Appellant. 9. Learned counsel for Appellant has also drawn our attention to the letter addressed by Krishnan to Senior Manager dated 18.11.1985 in which the said Krishnan has stated that "Sr.Joyce Lobo helped him in his business by getting loan for him and that he could not make profits in his Computer business and Bank has nothing to do with the loan except that it has disbursed against FDR and that the matter has to be settled between him and the School". Main contention of Appellant is that the Authorities as well as learned single Judge did not keep in view Ex.D9 and letter of said Krishnan. 10. Ofcourse, earlier Nagasamy and Kameshwar had sanctioned similar loan against the signature of Sr.Joyce Lobo who was one of the governing member of Apostolic Carmel Educational Society. The past transaction will not justify in disbursing further loan amount on FDR. 10. Ofcourse, earlier Nagasamy and Kameshwar had sanctioned similar loan against the signature of Sr.Joyce Lobo who was one of the governing member of Apostolic Carmel Educational Society. The past transaction will not justify in disbursing further loan amount on FDR. As pointed out by the Enquiry Officer, when further loan was sought for, Appellant ought to have insist upon specific proof of Sr.Joyce Lobo to raise loan. Previous sanction and disbursal of loan amount is of no avail to the Appellant. Appellant ought to have verified whether Sr.Joyce Lobo was competent to make a request for further loan. In case of doubt, Appellant ought to have obtained clarification from the Manager. Absolutely, there is no material to show that Manager has issued direction to sanction the loan amount. 11. In so far as Ex.D9, it was sent to M/s.Carmel Convent School in 1985 long after raising of additional loan. As pointed by Enquiry Officer, Ex.D9 can only be treated as response of the Manager to the claim made by the School and any statement made thereon cannot be taken advantage by the Appellant. Letter can at best be seen as explanation by the Bank to defend its action of its Officer in granting additional loan. As found by the Enquiry Officer, Ex.D9 cannot constitute sanction or approval of loan by the Bank and action of the Appellant has to be judged independently on its own merits applying the relevant rules and regulations. Appellant is not right in contending that learned single Judge erred in appreciating the contents in Ex.D9. 12. Placing reliance upon 1971 (1) LLJ 180 [191], learned counsel for Appellant contended that Court has to find out that whether finding of Enquiry Officer is contrary to the evidence. Placing reliance upon 1972-I-MLJ 374 [The State of Madras, rep. by the Secretary to Government, Home Department and another v. M.Kandaswamy], it was further contended that jurisdiction of the Court to examine the evidence and satisfy itself on the correctness of the complaint is not ousted. In the said decision, it was held that "it is open to the High Court to find whether there is evidence or not justifying the conclusion". 13. In the said decision, it was held that "it is open to the High Court to find whether there is evidence or not justifying the conclusion". 13. Observing that High Court is not constituted as a Court of Appeal over the decision of the Authorities holding departmental enquiry against a public servant, in AIR 1963 SC 1723 [State of A.P. v. S.Sree Rama Rao], the Supreme Court held as follows:- "7. ..... The High Court is not constituted in a proceeding under Article 226 of the Constitution as a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution". 14. 14. Referring to Chitra Venkata Raos case [ (1975) 2 SCC 557 : 1975 SCC (L&S) 349] and other decisions, in (2009) 8 SCC 310 [State of U.P. and another v. Man Mohan Nath Sinha and another], the Supreme Court held as under:- "15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court." 15. Exercising jurisdiction under Article 226 of Constitution of India, Court is not an Appellate Court. Findings of fact reached by an inferior Court or Tribunal as a result of the appreciation of evidence are not re-opened or questioned in Writ proceedings. Only if a finding of fact based on no evidence, it would be regarded an error of law which can be corrected by Writ of Certiorari. High Court does not interfere with the finding of fact on the ground that evidence is not sufficient or adequate. 16. The evidence which was considered by the Disciplinary Authority and Appellate Authority cannot be scanned by the High Court to justify. Referring to the evidence and materials on record, Enquiry Officer gave reasons for the conclusions arrived at by him. It is not possible for the High Court to say that no reasonable person could arrive at those conclusions. 17. Alleging that no opportunity was given to him to examine the material witnesses – (1)G.G.Kameshwar; (2)M.Nagaswamy; (3)R.N.Chopra, Appellant had filed W.P.No.2039/1990. By the order dated 23.08.1999, the Writ Petition was allowed directing the Disciplinary Authority to make an attempt to procure those three witnesses. Thereafter, Disciplinary Authority fixed the enquiry on 17.12.1999. Notice was also sent to the Appellant. 17. Alleging that no opportunity was given to him to examine the material witnesses – (1)G.G.Kameshwar; (2)M.Nagaswamy; (3)R.N.Chopra, Appellant had filed W.P.No.2039/1990. By the order dated 23.08.1999, the Writ Petition was allowed directing the Disciplinary Authority to make an attempt to procure those three witnesses. Thereafter, Disciplinary Authority fixed the enquiry on 17.12.1999. Notice was also sent to the Appellant. According to the Appellant, he has also booked a ticket for his journey and that he has suddenly fallen ill and therefore could not attend the enquiry. According to the Appellant because of his sudden illness, he could not travel and that no further opportunity was given to him to examine the above three witnesses and that there was violation of principles of natural justice. Grievance of Appellant is that inspite of specific direction given by the High Court in the earlier order, no opportunity was given to the Appellant to examine the above three witnesses. 18. Contention of learned counsel for Appellant that there was violation of principles of natural justice does not merit acceptance. Alleging that due to his illness, he could not attend the enquiry on 17.12.1999 and that no further opportunity was given to him, Appellant had filed WP MP No.5491/2000. Pointing out that Appellant ought to have informed the same to the Bank well in time and should have sought for adjournment and that it is not open to the Appellant to further seek a direction to hold enquiry after providing opportunity, by the order dated 23.3.2001 the said WP MP No.5491/2000 was dismissed. That order was not challenged and became final. While so, it is not open to the Appellant to make grievance of violation of principles of natural justice. 19. Principles of natural justice cannot be put into any straight jacket formula and it depends upon facts and circumstances of each case. In (2007) 4 SCC 54 [Ashok Kumar Sonkar v. Union of India and others], it was held that to what extent principles of natural justice to be complied with would depend upon fact situation obtaining in each case. Principles of natural justice cannot be applied in vacuum and they cannot be put into any straight jacket formula. What is needed is the objective criteria for the employer. Principles of natural justice cannot be applied in vacuum and they cannot be put into any straight jacket formula. What is needed is the objective criteria for the employer. Keeping in view the facts situation obtaining in the present case, in our considered view sufficient opportunity was afforded to the Appellant and Appellant cannot complain of violation of principles of natural justice. 20. Referring to the earlier order passed in this Writ Petition, learned single Judge rightly negatived contention of the Appellant as to violation of principles of natural justice. Appellant has not made out any substantial ground warranting interference with the order of learned single Judge and the Writ Appeal is liable to the dismissed. 21. In the result, the Writ Appeal is dismissed. No costs.