The General Manager & Ors. vs K.Perumal

The Appeal in W.A.(MD)No.963 of 2012 is directed against the order of a learned Single Judge of this Court dated 23.09.2011, made in W.P.(MD)No.1239 of 2008.

The Appeal in W.A.(MD)No.979 of 2013 is directed against the order of a learned Single Judge of this Court dated 10.08.2012, made in Review Application (MD)No.58 of 2011 in W.P.(MD)No.1239 of 2008.

The case of the respondent before the learned Single Judge is that he joined in Canara Bank in the year 1984 and he was made permanent employee on 26.06.1984. Thereafter, he became sub staff (Peon) on 01.12.1986. He was employed as cash peon from 1999 onwards and he was working in Currency Chest, Canara Bank, Madurai. While so, he had applied for Two wheeler loan from the third appellant herein and he was granted the loan amount of Rs. 37,000/- and he had paid Rs.7,502/- towards margin amount. The total cost of the vehicle was Rs.44,502/-, which was handed over by the third appellant to the respondent by way of demand draft drawn in favour of Nagappa Motors, Madurai. When the respondent went to take delivery of the bike, he was informed by Nagappa Motors that the delivery of the bike was taken away by one Mechanic Srinivasan. The bike was delivered to the said Srinivasan without any authorization letter. He was not able to get back the motor bike. The bike was handed over by the said Srinivasan to one Govindarajan, who was also working along with the respondent. Hence, he filed a petition before the District Consumer Redressal Forum, Madurai, for delivery of a new motor bike. The District Consumer Forum, accepting the case of the respondent, ordered the Nagappa Motors to deliver a new bike after completing RTO and insurance formalities, or refund the cost of the vehicle, within a month along with Rs.5,000/- for mental agony and Rs.1,000/- towards cost. Aggrieved over the same, an appeal has been filed by Nagappa Motors before the State Consumer Disputes Redressal Commission, in A.P.No.158 of 2004 and the same is pending.

While the matter stood thus, the respondent was charged with the following charges : "REF: MDUC:DAC:969:F 253:(W-01/2002-03)

C H A R G E

You are presently working as peon at our Currency Chest, Madurai.

You have availed LHV Loan of Rs.37,000/- at our Gnanavolipuram Branch on 24.05.2002 to purchase a Brand New Hero Honda to the Branch nor submitted the copy of the RC Book, receipt etc Deposits several reminders from the branch, you have not complied with the sanction conditions and were giving evasive replies to branch enquires. An enquiry with the supplier of the vehicle (M/s.Nagappa Motors, Madurai) reveled that you have taken delivery of the vehicle on 1.6.2002 after making payment by way of Demand Draft. One Sri.G.Amarnath had informed vide his letter dated 18.07.2002 that you have authorised him to take delivery of the above vehicle from the dealer directly as security for the amount of Rs.53,000/- borrowed from him by you and that the vehicle is at present under his custody. It has been reported that you have executed a bond in his favour to this effect. It has been reported in one of the local Tamil Dailies on 12.08.2002 that a case has been registered against you by the Andalpuram Police authorities in connection with your non repayment of Rs.53,000/- obtained from Sri.G.Amarnath on the assurance of getting him a motor cycle through Bank loan. A legal norice dated 26.11.2002 has also been issued against you by this said Sri.G.Amarnath.

You were instructed by Staff section(workmen) Circle Office, Madurai vide their letters MDUC;SSW:1549:EP:DN dated 16.07.2002 and MDUC:SSW:2294:EP;RVN dated 26.08.2002 to produce the vehicle for inspection at the branch and to submit the relevant documents (RC book, reciept etc) But you were giving evasive/unconvincing replies.

It has come to light, that the vehicle purchased under the LHV Loan has been delivered to one Mr.Srinivasan by the vehicle dealer at your specific request. You have allowed an outsider to take delivery of the vehicle in settlement of your personal financial dealings with third parties.

Thus you have mis-utilised the credit facilities extended to the employee of the bank and colluded with an outsider to defraud the bank.

Our Gnanavolipuram Branch vide their letter STAFF:LHV: 20:VRR:2002 dated 18.08.2002 had recalled the entire advance and requested you to close your account immediately. You have not responded to the instructions and failed to produce the vehicle/comply with the terms and conditions of the sanction.

By your above acts, you have failed to discharge your duties with utmost integrity, honesty, devotion and diligence. Thus you have committed a gross misconduct within the meaning of regulation 3, clause (d) of Chapter XI of the Canara Bank service Code.

By your above acts, you have caused damage to the properties of the bank, thus committed a gross misconduct within the meaning of Regulation 3, Clause (j) of Chapter XI of the Canara Bank Service Code.

Your above acts being prejudicial to the interests of the Bank. You have committed a gross misconduct within the meaning of Chapter XI Regulation 3, Clause(m) of the Canara Bank Service Code."

The respondent gave his explanation to the charges denying the allegations levelled against him. However, not being satisfied with the reply/explanation given by the respondent, the appellant bank appointed an Enquiry Officer to look into the charges. The Enquiry Officer held the respondent guilty of charges. The disciplinary authority, concurred with the finding of the Enquiry Officer, imposed the punishment on the respondent, by order dated 29.11.2003, which reads thus: "Grade down to lower stage in time-scale of pay by two stages for a period of one year with cumulative effect."

Aggrieved over the same, the respondent has filed an appeal before the appellate authority, who, in turn, has also confirmed the punishment imposed by the disciplinary authority, by order dated 27.04.2004. Therefore, the petitioner has apporoached this Court by filing the Writ Petition seeking to quash the order dated 29.11.2003.

The learned Single Judge, by order dated 23.09.2011, has allowed the Writ Petition and set aside the order of punishment holding that the impugned order, being based on the finding of the Enquiry Officer, cannot be sustained in record, in view of peculiar facts of this case. Aggrieved over the same, the appellants are before this Court with W.A.(MD)No.963 of 2012.

The learned Single Judge has assigned the reasons for allowing the Writ Petition, based on the judgment of the District Consumer Redressal Forum, wherein M/s.Nagappa Motors, Sri Srinivasan and Shri Amarnath were held guilty of deficiency in service and directed to supply a new motorcycle to the respondent, or in alternative, pay Rs.50,000/- along with damages of Rs.5,000/- as compensation for mental agony and deficiency in service. After the disposal of the Writ Petition, the appellants came to know that the appeal filed by M/s.Nagappa Motors in A.P.No.158 of 2004 was allowed as early as on 13.04.2007 i.e., much earlier to the order passed by the learned Single Judge in W.P.(MD)No.1239 of 2008 filed by the respondent. Hence, based on the order passed in A.P.No.158 of 2004, the appellants have filed a Review Application in Review Application (MD)No.58 of 2011. However, the learned Single Judge, by order dated 10.08.2012, dismissed the Review Application. Aggrieved over the same, the appellants have filed W.A.(MD)No.979 of 2013.

The learned counsel for the appellants submitted that the learned Single Judge has set aside the order of punishment imposed on the respondent merely based on the judgment of the District Consumer Redressal Forum. However, the State Consumer Disputes Redressal Commission, by order dated 13.04.2007, has partly allowed the appeal preferred by Nagappa Motors, as against the order of Consumer Forum. In fact, in the said order, the Commission has specifically observed that the respondent has not come to the Court with clean hands. Moreover, an adverse finding was given as against the respondent herein. The said order was suppressed by the respondent before the learned Single Judge. That is the reason why, the learned Single Judge, by relying upon the order passed by the District Consumer Redressal Forum, set aside the order of punishment imposed on the respondent herein. Since the respondent has not approached this Court with clean hands, the order of the learned Single Judge has to be set aside.

In support of the above said contention, the learned counsel for the appellants has relied upon the following judgments: (i) Prestige Lights Ltd. v. State Bank of India [2007(8) SCC 449]. (ii) Dalip Singh v. State of U.P. [2010(2) SCC 114].

Adding further, the learned counsel for the appellants submits that the learned Single Judge, while exercising the power under Article 226 of the Constitution of India, cannot act as an appellate authority and re-appreciate the evidence and substitute its own findings and the Court can interfere, only if the finding is perverse. In support of the said contention, he has relied upon a judgment in B.C.Chaturvedi v. Union of India [1995(6) SCC 749]. Thus, the learned counsel sought for setting aside the orders of the learned Single Judge.

Countering the said submission, the learned Senior Counsel appearing for the respondent submitted that it is incorrect to state that the respondent has suppressed the order passed by the Commission. In fact, he had stated in the Writ Petition about the pendency of the appeal before the Commission. But the respondent was not aware of the order passed by the Commission on the date of making submission before the learned Single Judge. Further, the learned Senior Counsel for the respondent submitted that the Commission, while modifying the order dated 09.12.2003, in C.C.P.No. 34/2003, on the file of District Consumer Redressal Form, has confirmed the finding of the Forum that without any authorization from the respondent, the vehicle was delivered. The crux of the allegation in the charge memo is that the respondent has allowed one G.Amarnath, to take the vehicle to settle his personal financial dealings and the same has been disproved, in view of the categorical finding. Hence, mere disposal of the appeal makes out no difference in this present case. In fact, on the very same ground, Review Application was filed and the same was also dismissed by this Court. Thus, he sought for dismissal of the Writ Appeals.

Keeping in mind the submissions made by the learned counsel on either side, we have carefully gone through the entire materials available on record.

It is the submission of the learned counsel for the appellants that the learned Single Judge has set aside the punishment imposed by the disciplinary authority and confirmed by the appellate authority, as against the respondent merely based on the order passed by the District Consumer Redressal Forum in in C.C.P.No.34/2003. The appeal preferred as against the order by Nagappa Motors was partly allowed by the Commission, by order dated 13.04.2007, in A.P.No.158 of 2004. The Writ Petition was heard and disposed of only on 23.09.2011 i.e., after a period of four years from the date of the order passed in A.P.No.158 of 2004. Therefore, the respondent has wantonly suppressed the said material fact.

Per contra, it is the submission of the learned Senior Counsel for the respondent that the respondent was not aware of the order passed in A.P.No.158 of 2004. Therefore, absolutely, there is no suppression on the part of the respondent.

However, in our considered view, except the oral statement of the respondent, there is no substantive material to prove the fact that the respondent came to know about the order passed in A.P.No. 158 of 2004 only after a period of four years. In fact, in paragraph No. 10 of the order dated 13.04.2007, in A.P.No.158 of 2004, an adverse finding was made as against the respondent. The relevant portion from the order passed by the State Consumer Disputes Redressal Commission, Chennai, reads as follows: "10. From what is stated above, it would be clear that there something more than that what meets the eye in the present case. The complainant had not come to Court with clean hands. Apparently, it was only Amarnath who had passed the D.D. to the opposite party through mechanic Srinivasan and taken delivery of the vehicle. The opposite party as long as they got the D.D., it was not for them to suspect that there was something fishy about the whole thing. The moment they got the D.D. They though that they had to handover the vehicle to mechanic Srinivasan. In our view, the whole thing has to be thrashed out in the proceedings stated to be pending before the District Munsif Court. According to the complainant the decree had been obtained on some fabricated document. The complainant ought to have appeared before the civil Court and resisted the suit. No doubt, there is an application filed by him to set aside the ex-parte decree passed against him. In case, he succeeds before the civil court that the suit is a vexatious one and that the document had been forged, then, the suit will be dismissed and the injunction granted against the complainant would stand vacated. We have already referred to the affidavit filed by one Premasundari in respect of some vehicle transaction between her husband and the complainant. All these only point to the fact that the complainant is in the business of raising loan from the bank, buying vehicles, disposting them of perhaps at a profit. The vehicle subject matter of the proceedings is in the custody of Govindaraj. There is an injunction restraining the complainant and anybody claiming under him from interfering with the custody of the vehicle with Govindaraj, father of Amarnath. In the above circumstances, the District Forum was not justified in directing the opposite party to deliver a new vehicle to the complaint. 11. We are however also of the view that the opposite party ought not to have delivered the vehicle to Srinivasan without proper authorisation from the complainant. To this limited extend, there was deficiency in service on the part of the opposite party. In our view, they should be penalised for this infraction on their part. 12. we therefore modify the order of the District Forum as follows: The direction by the District Forum to the opposite party to handover a brand new vehicle to the complainant will stand vacated. However, the direction to pay Rs.5,000/- as compensation to the complainant will stand as also the order for direction to pay cost of Rs.1,000/-. The complainant has to work out his remedies before the civil court. The appeal is disposed of on the above terms."

In reply, it is the contention of the learned Senior Counsel for the respondent that though there was an adverse finding as against the respondent in the appeal filed by Nagappa Motors, the Commission has partly allowed the appeal and directed Nagappa Motors, to pay a sum of Rs.5,000/- as compensation stating that there is deficiency of service on the part of Nagappa Motors for not delivering bike to the respondent.

Be that as it may, in the absence of any material to show that the respondent was not aware of the order passed by the appellate authority while making submission before the learned Single Judge, this Court has been left with no other option except to come to the conclusion that the said fact was purposely suppressed by the respondent before the learned Single Judge. Since there is suppression on the part of the respondent, we are of the opinion that the respondent has not approached this Court with clean hands.

At this juncture, a reference could be placed on some of the judgments relied upon by the learned counsel for the appellants. In Prestige Lights Ltd. v. State Bank of India [2007(8) SCC 449], at paragraph No.33, the Supreme Court has held as follows: "33. It is thus clear that though the appellant Company had approached the High Court under Article 226 of the Constitution, it had not candidly stated all the facts to the Court. The High Court is exercising discretionary and extraordinary jurisdiction under Article 226 of the Constitution. Over and above, a court of law is also a court of equity. It is, therefore, of utmost necessity that when a party approaches a High Court, he must place all the facts before the Court without any reservation. If there is suppression of material facts on the part of the applicant or twisted facts have been placed before the Court, the writ court may refuse to entertain the petition and dismiss it without entering into merits of the matter."

In Dalip Singh v. State of U.P. [2010(2) SCC 114], the Supreme Court, at paragraph No.10, has held as follows: "10. In K.D.Sharma v. SAIL the Court held that the jurisdiction of the Supreme Court under Article 32 and of the High Court under Article 226 of the Constitution is extraordinary, equitable and discretionary and it is imperative that the petitioner approaching the writ court must come with clean hands and put forward all the facts before the Court without concealing or suppressing anything and seek an appropriate relief. If there is no candid disclosure of relevant and material facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the threshold without considering the merits of the claim. The same rule was reiterated in G.Jayashree v. Bhagwandas S.Patel.."

In the instant case, undoubtedly, the respondent has approached this Court by suppressing the order passed by the Commission in A.P.No.158 of 2004. Therefore, he is not entitled for any relief.

Apart from that, while exercising the jurisdiction under Article 226 of the Constitution of India, this Court cannot sit as an appellate authority and re-appreciate the evidence. In this regard, a reference could be placed on the judgment relied upon by the learned counsel for the appellants in B.C.Chaturvedi v. Union of India [1995(6) SCC 749], wherein, at paragraph Nos.14 and 15, the Supreme Court observed thus: "14. In Union of India v. S.L.Abbas when the order of transfer was interfered with by the Tribunal, this Court held that the Tribunal was not an appellate authority which could substitute its own judgment to that bona fide order of transfer. The Tribunal could not, in such circumstances, interfere with orders of transfer of a government servant. In Administrator of Dadra & Nagar Haveli v. H.P. Vora it was held that the Administrative Tribunal was not an appellate authority and it could not substitute the role of authorities to clear the efficiency bar of a public servant. Recently, in State Bank of India v. Samarendra Kishore Endow a Bench of this Court of which two of us (B.P.Jeevan Reddy and B.L.Hansaria, JJ.) were members, considered the order of the Tribunal, which quashed the charges as based on no evidence, went in detail into the question as to whether the Tribunal had power to appreciate the evidence while exercising power of judicial review and held that a tribunal could not appreciate the evidence and substitute its own conclusion to that of the disciplinary authority. It would, therefore, be clear that the Tribunal cannot embark upon appreciation of evidence to substitute its own findings of fact to that of a disciplinary/appellate authority.

It is, therefore, difficult to go into the question whether the appellant was in possession of property disproportionate to the known sources of his income. The findings of the disciplinary authority and that of the Enquiry Officer are based on evidence collected during the inquiry. They reached the findings that the appellant was in possession of Rs.30,000 in excess of his satisfactorily accounted for assets from his known sources of income. The alleged gifts to his wife as stridhana and to his children on their birthdays were disbelieved. It is within the exclusive domain of the disciplinary authority to reach that conclusion. There is evidence in that behalf."

Therefore, relying upon the dictum laid down in the cases cited supra, we are of the opinion that the orders of the learned Single Judge are liable to be set aside and accordingly, set aside. The Writ Appeals are allowed. No costs. Consequently, the connected miscellaneous petitions are closed.