JUDGMENT (Prayer: Writ Petition filed under Article 226 of Constitution of India, praying for issuance of Writ of Certiorarified Mandamus, calling for the records relating to the proceedings of the first respondent dated 08.09.2011 and quash the same and for a consequential direction, directing the respondents to reinstate the petitioner with attendant service benefits.) 1. The relief sought by the petitioner in this writ petition is to call for the records calling for the records relating to the proceedings of the first respondent dated 08.09.2011 and quash the same and for a consequential direction, directing the respondents to reinstate the petitioner with attendant service benefits. 2. The facts of the case in a nutshell: The petitioner was appointed as Assistant Administrative Officer in the respondent corporation on 29.01.1992 and posted at Hyderabad. Subsequently, the petitioner was transferred to a newly opened branch Visakhapatnam in the year 1995 as Branch Head. Being the newly opened branch, the petitioner worked hard by way of marketing and developed the business of the branch to Rs.40 crores. Later in the year 1997, the petitioner was promoted a Senior Executive and subsequently in the year 1997, the petitioner was posted as Branch head at Hyderabad. The petitioner developed the business of the branch by good marketing strategy from Rs.40 crores to 80 crores. While working at Hyderabad branch, the petitioner received consolation prize for the period 2002-2003 for customer service on all India Basis. Even since his appointment, the petitioner has had an unblemished record of service with devotion to duty and discharged his duties sincerely and honestly to the utmost satisfaction of his superiors and gave no room for anybody to complain. 2.1. The petitioner was transferred to Chennai on 10.05.2005 as Area Manager. While transferring the petitioner as Area Manager (Branch Head), one Mr.S.Ravi, who was functioning as Branch Head in Chennai was asked to look after the recovery of NPA accounts in the branch. Further, the Branch was facing serious problems such as high Non-Performing Assets to the tune of Rs.25.59 crores. This being so, the petitioner, during the year 2009, sought for transfer on health grounds to Hyderabad but the respondents transferred the Recovery Department Head Mr.S.Ravi to Trichy. Further, the Branch was facing serious problems such as high Non-Performing Assets to the tune of Rs.25.59 crores. This being so, the petitioner, during the year 2009, sought for transfer on health grounds to Hyderabad but the respondents transferred the Recovery Department Head Mr.S.Ravi to Trichy. Thereafter, the petitioner was placed under suspension vide order dated 10.05.2010, stating that the petitioner committed certain irregularities, manipulated and falsified the accounts and the account entries were made in violation of the rules and regulations of the General Insurance Corporation Housing Finance Ltd., (hereinafter referred as “GICHFL”) during his tenure as Branch Manager. The suspesnion was made under Rule 20 of the GICHFL conduct, Disciplines and Appeal Rules, 2009. 2.2. The petitioner was paid only 50% of the Subsistence Allowance on the old pay scale for fifteen months only. The petitioner was not paid salary for the month of April 2010 and he was not paid subsistence allowance for the month of August 2010 and September 2011. Thereafter, the petitioner was issued with memorandum of charges on 20.07.2010, asking the petitioner to submit his explanation within 15 days for holding the enquiry. The petitioner was surprised to receive another memorandum dated 22.10.2010 with additional charges and he has submitted his explanation dated 09.11.2010, denying all the charges as baseless. Moreover, the petitioner was not served with any documents mentioned in the memorandum of charges and without considering the explanation properly and without even conducting any enquiry, the first respondent issued the impugned order dated 08.09.2011, terminating the service of the petitioner. Aggrieved over the same, the petitioner has come forward with the present writ petition. 3. Learned counsel for the petitioner submitted that the impugned order of termination has been passed without holding any enquiry, as contemplated under Rule 25 of GICHFL (Conduct, Discipline and Appeal Rules, 2008), before imposing major penalty. The entire set of charges framed against the petitioner is biased and arbitrary for the reason that the petitioner was only looking after the development of business and all the other concerned departments like recovery and accounts departments were involved in making entries and disbursing the loans and recovery and accounts departments were headed by senior executives namely S.R.Ravi and C.H Sai Babu. The petitioner was not directly responsible for the mistakes committed in the recovery / accounts department in preparing statement of accounts. The petitioner was not directly responsible for the mistakes committed in the recovery / accounts department in preparing statement of accounts. However, the petitioner alone is imposed with the punishment of termination of service. On the other hand, the said S.R.Ravi was given promotion as Area Manager. Hence, the impugned order is exfacie discriminatory and illegal. 4. Learned counsel for the petitioner further submitted that the respondents failed to consider the fact that all the NPA accounts were sanctioned and disbursed by the predecessors of the petitioner, prior to his reporting at Chennai area office. Further, the mistakes in accounts entry were made in the recovery department. Hence, at the most, the petitioner could only be warned, being the Head of the Branch. Moreover, all the charges framed against the petitioner did not result in monetary loss to the respondent and the mistakes committed by the concerned departments were also subsequently corrected by reversing those entries. The nature of charges would themselves show that the petitioner did not derive any benefit directly or indirectly and as such, the imposition of punishment of termination of the service of the petitioner is highly improper. 5. Learned counsel for the petitioner contended that the sanction of loan to Rajivnath, and AVK Janaki were done only after closure of earlier loans and without violating any of the prevailing norms and the service record of the petitioner, the sequence of facts and events, as stated above, would disclose that the impugned order is clearly vitiated by malafides, apart from being arbitrary and discriminatory. 6. Learned counsel for the petitioner further contended that the impugned order is liable to set aside for the reason that the punishment imposed is shockingly disproportionate to the offence. The petitioner has not committed any such grave misconduct warranting the imposition of dismissal. The penalty of recovery of Rs.89,55,382/- was imposed on the petitioner for which no charge was framed and no explanation was called for. For this reason alone, the impugned order is liable to be quashed. The petitioner brought to the notice of the respondents about the irregularities in sanctioning the loans with regard to NPA accounts, but respondents have failed to take proper action and to cover up their lapse, made the petitioner as scapegoat. 7. Learned counsel for the petitioner further submitted that the Charge Memo dated 29.07.2010 and 22.10.2010 are vague and ambiguous. The petitioner brought to the notice of the respondents about the irregularities in sanctioning the loans with regard to NPA accounts, but respondents have failed to take proper action and to cover up their lapse, made the petitioner as scapegoat. 7. Learned counsel for the petitioner further submitted that the Charge Memo dated 29.07.2010 and 22.10.2010 are vague and ambiguous. Moreover, the respondents failed to appreciate the fact that during his tenure stretching over a period of 18 years as area manager of marketing department, (wherever the petitioner was posted) maintained good track record and by his devotion and dedication, he developed the business of those branches and under such circumstances, the impugned order is arbitrary and improper. Hence, he prayed for allowing this writ petition. 8. Per contra learned counsel appearing for the respondents filed a counter affidavit and for better appreciation, the relevant paragraphs are extracted hereunder: “7. Howsoever, the disciplinary authority of GICHFL considered ever aspect of explanation offered by the petitioner in respect of each article of charge on the basis of the documentary evidence available and concluded that the explanation was far from satisfactory and the petitioner was guilty of the charges beyond any doubt. In the circumstances, the disciplinary authority namely the first respondent herein passed a very detailed order after adverting to each one of the Submissions made by the petitioner in respect of each article of charge and imposed the impugned penalty of recovery of Rs.89,55,382/- and the penalty of dismissal of service from GICHFL with immediate effect. In fact, the petitioner has an appeal remedy available under Rule 31 of GIC Housing Finance Limited (Conduct Discipline Appeal Rules, 2008) and without exhausting the same, he has approached to this Hon''ble Court. 8. It is respectfully submitted that in case the petitioner is aggrieved on the findings of guilt by the disciplinary authority, he has efficacious remedy of appeal before the Board and there would be proper consideration of appeal as to the procedure adopted, findings, penalty imposed, etc. under Rule 37 of the GIC Housing Finance Ltd., Conduct Discipline Appeal Rules, 2008. Therefore it cannot be gainsaid that the petitioner has not been afforded reasonable opportunity to defend himself. It is further submitted that the grounds raised by the petitioner in the writ petition are untenable and the same cannot be countenanced in law.” 9. under Rule 37 of the GIC Housing Finance Ltd., Conduct Discipline Appeal Rules, 2008. Therefore it cannot be gainsaid that the petitioner has not been afforded reasonable opportunity to defend himself. It is further submitted that the grounds raised by the petitioner in the writ petition are untenable and the same cannot be countenanced in law.” 9. Subsequently, the petitioner has filed a rejoinder dated 10.06.2012 and for better appreciation, paragraph 7 is extracted hereunder: “11. The petitioner submits that after suspension, the respondents without conducting the enquiry and without following the procedure contemplated under Rule 25 of the GICHFL (Conduct, Discipline and appeal) Rules, 2008 for imposing the major penalties, passed the impugned order imposing two punishments i.e recovery of Rs.89,55,382/- and terminating the services of the petitioner. The petitioner further submits that Rule 23 does not contemplate imposition of double punishments. The respondent did not make any specific charge with regard to the amount and did not mention in any of the 11 charges framed by them. The petitioner further submits that as the order is exfacie illegal, unjust and unsustainable in law, hence, the petitioner has approached this Hon''ble Court for redressal of his grievance. The petitioner further submits that there is no appeal against an order made by the respondent company of his grievance. The Petitioner further under rule 20 or rule 23.” 10. In turn, learned counsel appearing for the respondents submitted that the Bank is covered under Section 2(3) of the Tamil Nadu Shops and Establishments Act, 1947 and the petitioner has to file an appeal under this Act. For better appreciation, Section 2(3) of the aforesaid Act is extracted hereunder: “2(3) “commercial establishment” means an establishment which is not a shop but which carries on the business of advertising, commission, forwarding or commercial agency, or which is a clerical department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, broker''s office or exchange and includes such other establishment as the State Government may be notification declare to be a commercial establishment for the purposes of this Act;” Hence, this writ petition is not maintainable for the reason that since, the petitioner can file an appeal under Section 2(3) of the Tamil Nadu Shops and Establishments Act, 1947. 11. 11. The first and foremost contention of the respondents is that the respondent company is not a “State” and will not come under the purview of Article-12 of the Constitution of India, and therefore, nor amenable to the writ jurisdiction of this Court. Further, the learned counsel relied on the judgment of the Hon''ble Apex Court in the case of Federal Bank Vs. Sagar Thomas and others reported in (2003) 10 SCC – 733. For better appreciation, the relevant paragraphs are extracted hereunder: “2. Respondent I challenged the order of his dismissal by filling a writ petition in the High Court. A preliminary objection about maintainability of writ petition seems to have been taken in defence by Federal Bank, saying that it is a private bank and not a State or its agency or instrumentality, within the meaning of Article 12 of the Constitution of India, hence a writ petition under Article 226 of the Constitution is not maintainable against it. 4. The question thus, which falls for consideration is as to whether the appellant Bank a private body or falls within the definition of the State or local or other authorities under the control of the Government. A body or organization which is an instrumentality or agency of the State or a company owned and controlled by the State are all included in the expression "the State". If it is found that the petitioner falls within the latter category, there would be no hurdle in holding that such a body or organization would undoubtedly be amenable to the writ jurisdiction under Article 226 of the Constitution of India. On the other hand, if it is found that the appellant is a private body, in that event it may have to be examined whether a writ petition would be maintainable or not and the extent to which such powers can be exercised.” 12. Learned counsel appearing for the respondents further relied on the judgment passed by this Court in W.P.No.3843 of 2015, relating to another employee viz., Cheruvu Saibabu, who was also dismissed from service, this Court has held that the respondent is not a state and therefore, the writ petition is not maintainable. But, liberty was granted to approach the appropriate authority. Since, the issue in the above case is identical to the case on hand, the judgment of the above order binds this Court. 13. But, liberty was granted to approach the appropriate authority. Since, the issue in the above case is identical to the case on hand, the judgment of the above order binds this Court. 13. Learned counsel appearing for the respondents drew the attention of this Court to the letter dated 05.06.2002, issued by the respondent corporation, in which, it is stated that the petitioner was promoted to the cadre of Group Head and the same was also accepted by the petitioner vide endorsement dated 06.06.2002. Hence, he prayed for dismissal of this writ petition. 14. Heard the learned counsel on either side and perused the materials available on record. 15. The petitioner was working as Area Manager (Branch Head) in the respondent corporation. The memorandum of Charge Sheet dated 20.07.2010 was issued by the first respondent to the petitioner in which, five charges were framed against the petitioner. The termination order dated 08.09.2011 was issued by the first respondent to the petitioner and the same is extracted hereunder: “(F) In considering penalties to be imposed on Mr.Potu Srinivas, I am of the opinion that the penalty should commensurate to the gravity of misconduct and concurrently deterrent to other employees and therefore, I am of the view that the penalty of recovery of Rs.89,55,382/- from him under Rule 23 (i) (c) and the penalty of dismissal from the services of the company as per Rule 23 (i) (i) on Mr.Potu Srinivas would be reasonable, adequate and would meet the ends of justice”. 16. In regard to the Charges 1,2,3 and 4, none of the entries were made by the petitioner in the computer and the Non-Performing Assets (NPA) recovery team made the entries, which were also subsequently reversed and the same was also brought to the notice of the Senior Vice President dated 06.04.2010 by the petitioner. In regard to the 5th charge, the Non-Performing Assets (NPA) recovery department under the supervison of the Senior Executive only prepared the statement and the petitioner signed and forwarded the same with utmost good faith and the petitioner has no role to make any such wrong entries, which were subsequently reversed. In regard to the 5th charge, the Non-Performing Assets (NPA) recovery department under the supervison of the Senior Executive only prepared the statement and the petitioner signed and forwarded the same with utmost good faith and the petitioner has no role to make any such wrong entries, which were subsequently reversed. In regard to the 6th charge, which is related to the mortgage loan in the name of A.V.K.Janaki and Veeraraghavan under file No.GO8996 and the said account was opened by the earlier officer, who sanctioned the loan and the petitioner has no role in regard to sanctioning of the loan. In regard to the 7th charge, the file No.001297 of Ponni Ranganathan was declared as NPA. The property was valued by the panel valuer and the report was sent to the head office with recommendation from the recovery department. After approval from the dead office, auction notice was published on 02.03.2009 in Indian Express. Only one bidder namely Mrs.Manomani participated and paid 70% of the bid amount. Later, she applied for loan under file No.GO8694. After clearing by the recovery and credit department, the loan was disbursed by the disbursing officer. Following the required norms, auction was conducted in accordance with the rules and as such there is no deviation from the procedure and no pecuniary loss was caused to the company by the petitioner. In regard to the 8th charge, the insurance premium of Rs.22,155/- was paid by Mr.S.B.Prabhakar towards the insurance premium of the petitioner, since he is working in the united insurance company and the same was remitted to his loan account No.GO7693 and the petitioner has not committed any irregularities. In regard to 9th charge, the entries were made by the Accounts department and for the mistakes committed by the accounts department, the petitioner, who is the branch head cannot be liable for the mistakes committed. In regard to 10th charge, the assets of Govindarajan and R.R.Sridharan were declared as Non-Performing Assets, after obtaining permission from the head office, properties were put to auction and one Ramdoss''s wife and son participated in the auction. Mr.Ramdoss did not participate in the auction as alleged. Both the bidders paid an amount of Rs.2,20,742/- as initial bid amount and at the time of confirmation, the said bidders turned down the offer and requested for refund of the amount. The company refused to refund the amount. Mr.Ramdoss did not participate in the auction as alleged. Both the bidders paid an amount of Rs.2,20,742/- as initial bid amount and at the time of confirmation, the said bidders turned down the offer and requested for refund of the amount. The company refused to refund the amount. In regard to the 11th charge, the loan was granted to Mr.Rajiv Nath after he cleared the earlier loan amount for closing the account No.002190. After clearance from the recovery department only, the new loan was processed. From the above 11 charge framed against the petitioner, it is crystal clear and evident that the petitioner has no role in regard to the above 11 charges and he has been falsely implicated for the said charges. Hence, the removal of the petitioner from the service by the first respondent by order dated 08.09.2011, is not sustainable in law and the same is liable to be quashed. 17. It is pertinent to extract Rule 23 of the GIC Housing Finance Limited (Conduct, Discipline and Appeal) Rules, 2008: “23. Penalties:- Without prejudice to the provisions of other rules, any one or more of the following penalties may for good and sufficient reasons, and as hereinafter provided, be imposed by the competent authority on an employee who commits a breach of discipline, or who is guilty of any other act prejudicial to good conduct:- Minor Penalties:- (i) (a) Censure; (b) Withholding of one or more increments for a specified period; (c) Recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the company by negligence or breach of orders; (d) Reduction to a lower stage in the time-scale for a period not exceeding three years without cumulative effect. Major Penalties:- (e) Withholding of one or more increments permanently; (f) Reduction to a lower service or post or to a lower time-scale, or to a lower stage in a time- scale; (g) Compulsory retirement; (h) Removal from service which shall not be a disqualification for future employment; (i) Dismissal. 18. It is pertinent to extract Rule 31 of the GIC Housing Finance Limited (Conduct, Discipline and Appeal) Rules, 2008: “31. Right of Appeal: Every employee shall have a right of appeal to the appellate authority against an order imposing upon him any of the penalties specified under Rule 23. 18. It is pertinent to extract Rule 31 of the GIC Housing Finance Limited (Conduct, Discipline and Appeal) Rules, 2008: “31. Right of Appeal: Every employee shall have a right of appeal to the appellate authority against an order imposing upon him any of the penalties specified under Rule 23. An appeal against an order of suspension passed under Rule 20 shall be on the authority to which the authority which made or is deemed to have made the order of suspension is immediately subordinate. Notwithstanding anything contained in this rule, no appeal shall lie against an order made by the Company under Rule 20 or Rule 23.” In the above Rule 31, it is clearly stated that notwithstanding anything contained in this rule, no appeal shall lie against an order made by the Company under Rule 20 or Rule 23 and in this case, the order of penalty and recovery of Rs.89,55,382/- from the petitioner under Rule 23 (i) (c) and dismissal of petitioner from the service of the company, as per Rule 23 (i) (i). Hence, it is crystal clear and evident that there is no appeal remedy against the order passed under Rule 23. 19. Learned counsel appearing for the respondents submitted that the petitioner has to approach the competent authority under Section 2(3) of the Tamil Nadu Shops and Establishments Act, 1947 is not sustainable. Even in the counter affidavit, the respondents have stated that there is an appeal provision under Rule 31 of the GIC Housing Finance Limited (Conduct, Discipline and Appeal) Rules, 2008, which is not sustainable for the reason that, the Rule itself clearly stated that no appeal shall lie against an order made by the Company under Rule 20 or Rule 23. In this case, the order of penalty and dismissal was passed under Rule 23 of the GIC Housing Finance Limited (Conduct, Discipline and Appeal) Rules, 2008. 20. The counter affidavit was filed by the respondents dated 07.12.2011 and in the rejoinder dated 10.06.2012 of the petitioner has clearly stated that there is no appeal against the order dated 08.09.2011, issued by the respondent company under Rule 20 or 23, for which, the respondents have not filed any reply affidavit, denying the same and stating that the petitioner has to approach the competent authority under Section 2(3) of The Tamil Nadu Shops and Establishments Act, 1947. 21. 21. In view of the above facts and circumstances, it is crystal clear and evident that there is no appeal provision under the penalty imposed under Rule 23 (i) (c) and the penalty of dismissal from service of the company, as per Rule 23 (i) (i). 22. Hence, this Court is of the considered view that the writ petition is maintainable and the order passed by the first respondent dated 08.09.2011 is liable to be quashed and the same is quashed. 23. In the result, this writ petition stands allowed and the respondents are directed to pay all the attendant service benefits and all other consequential benefits to which the petitioner is entitled, as per GIC Housing Finance Limited (Conduct, Discipline and Appeal Rules, 2008), within a period of six weeks from the date of receipt of a copy of this order. 24. Post the case under the caption “For Reporting Compliance” on 18.07.2023.