K.K. SASIDHARAN, J.

1. This is the case of a Bank employee involved in a case of temporary misappropriation to tide over the financial difficulties caused on account of the illness of his wife and detention of son under Goondas Act, which ultimately resulted in his dismissal from service, notwithstanding the 30 years of unblemished service.

The facts in nut shell:

2. The appellant was employed as an accountant In the Karaikudi Branch of Union Bank of India. While so, a charge sheet was issued to him on 21.11.2002. The said charge sheet reads thus:

1. Failure to take all possible steps to ensure and protect the interest of the Bank;

2.Failure to discharge his duties with utmost integrity, honesty, devotion and diligence.

3. According to the Bank, on 13.8.2002, the appellant sanctioned a loan of Rs. 2,00,000/- to Thiru. A. Mohammed Mustafa, against the NRE deposit which stood in the name of his brother Thiru. Mohammed Ibrahim. The loan was disbursed in two installments. A sum of Rs. 50,000/- was paid by way of demand draft in the name of Ms. Flora Nesamani of Pudukottai. Another sum of Rs. 1,50,000/- was paid on 24.8.2002 by way of another demand draft taken in the name of A. John Bosco and payable at Madurai. Though the Branch Manager was very much available in the branch, he was not informed about the transaction. Subsequently, on 4.9.2004, the Branch Manager received a phone call from Mr. Mohammed Ibrahim requesting him to consolidate his deposit receipts into one. He made further Inquiry with respect to the prevailing rate of interest. This made the Branch Manager to verify the fixed deposit receipts in the name of Mr. Mohammed Ibrahim. When it was found that a sum of Rs. 2,00,000/- was taken as loan against the fixed deposit, the said information was passed on to Mr. Mohammed Ibrahim. However, Mr. Mohammed Ibrahim informed the Manager that he has not taken any loan. Thereafter, the Branch Manager contacted Mr. Mohammed Mustafa, elder brother of Mr. Mohammed Ibrahim with regard to the loan taken by him. The said Mr. Mohammed Mustafa Inturn informed the manager that he has not come to the Bank on 13.8.2002. However, he admitted his signature in the application for loan. Immediately on 5.9.2002, the Branch Manager directed the appellant to deposit the amount. Accordingly, the appellant deposited the amount. Thereafter, disciplinary proceedings were taken against him.

4. The Bank appointed a retired Bank employee as the Inquiry Authority. Before the Inquiry Officer, the Branch Manager, Clerk in-charge of the loan disbursement Section and Thiru.Mohammed Mustafa were examined. Documents such as loan application, loan sanctioning Order, payment voucher etc. were marked. The appellant was examined as a witness in defence. Thereafter, the Inquiry Officer submitted his report concluding that the charges were proved. The Inquiry Report was accepted by, the Disciplinary Authority and accordingly, punishment of dismissal from service was awarded. The said Order was unsuccessfully challenged before the Appellate Authority. The Order was once tested by way of review before the review authority. The review was also dismissed.

5. The Order of dismissal was challenged by the appellant in W.P. No. 11331 of 2004. Before the Writ Court, the appellant contended that the loan was sanctioned with the knowledge of the Branch manager and he was made a scapegoat. It was his further contention that Bank Drafts above Rs. 50,000/- should contain the signature of two officers. The Bank manager was also a signatory to the demand draft for Rs. 1,50,000/-. The holder of the account Mr. Mohammed Ibrahim has taken loan earlier also through his brother Mr. Mohammed Mustafa. Therefore, there was nothing unusual in taking a loan. The petitioner in his additional affidavit contended that he was very much in need of money and as such, he made a request to Mr. Mohammed Ibrahim to grant him loan and it was only with his permission, the application was submitted through Mr. Mohammed Mustafa for sanctioning loan against his fixed deposit receipts. Therefore, the transaction in question was a bona fide one. It was the further contention of the appellant that the notice calling upon him to submit his explanation with regard to the findings recorded by the Inquiry Officer was sent in Hindi. Since he was not aware of the contents of the said letter, he did not submit his explanation. In short, the appellant projected a case of prejudice on account of sending the notice in Hindi.

6. The Chief Manager, Union Bank of India, filed a counter in answer to the contentions raised in the affidavit filed in support of the Writ Petition. According to the Bank, the appellant by misusing his office, took a loan against the deposit receipt of a total stranger and the amount was withdrawn by way of two demand drafts taken in the name of his wife and son. Inquiry was conducted with due participation of the appellant and the fraudulent transaction was amply proved. Therefore, the Bank very rightly imposed the maximum punishment of dismissal from service.

7. The learned single Judge opined that there was nothing on record to show that the Bank manager has sanctioned the loan or his order was obtained. Therefore, it cannot be said that the loan was taken with the knowledge of the manager. The learned Judge opined that honesty, integrity, good conduct and discipline are inseparable from the functioning and therefore, it would not be proper to deal with the matter leniently. Accordingly, the writ petition was dismissed.

8. Dissatisfied with the said Order, the appellant is before this Court by way of this intra Court appeal.

9. The learned counsel for the parties reiterated the submissions made before the writ Court.

Consideration:

10. The appellant joined the service of the respondent Bank as a clerk in the year 1974. He was later promoted as accountant. While he was functioning as accountant at Karaikudi, the subject loan was taken against the fixed deposit receipt maintained in the name of Mr. Mohammed Ibrahim. According to the appellant, due to long service in the Bank, he has developed a personal relationship with Mr. Mohammed Ibrahim and his brother Mr. Mohammed Mustafa. In the additional affidavit filed before the writ Court it was stated that he approached Mr. Mohammed Ibrahim for a loan of Rs. 2,00,000/- to meet his pressing financial demand and Mr. Mohammed Ibrahim in turn .advised his brother Mr. Mohammed Mustafa to do the needful. Mr. Mohammed Mustafa signed the necessary loan documents and accordingly, Rs. 2,00,000/- was taken as loan. The demand draft was taken in the name of his wife and son on two different dates. Subsequently, on 5.9.2002, the Branch Manager directed the appellant to deposit the amount and accordingly, the amount was deposited with interest.

11. The learned counsel for the appellant raised two questions, one relating to the findings with regard to the guilt and the other pertaining to the proportionality of punishment.

First issue:

12. There is no dispute about the factum of taking a loan by the appellant against the fixed deposit account of Mr. Mohammed Ibrahim and the disbursement of the loan amount. Though Mr. Mohammed Mustafa has issued a letter of request to sanction a loan as per Exhibit MEX-10 dated 13.9.2002, the format of the loan application does not contain the name of either the holder of fixed deposit or Mr. Mohammed Mustafa. The debit voucher marked as Exhibit MEX-4 was signed only by the appellant. The corresponding credit voucher and the demand draft in favour of Flora Nesamani of Pudukottal for a sum of Rs. 50,000/- and the voucher made for the said purpose were again signed only by the appellant. Another sum of Rs. 1,50,000/- was taken through debit voucher marked as Exhibit MEX-6 dated 24.8.2002. It was signed only by the appellant. The clerk in-charge of loan Section was very much available on the date of sanctioning the loan. However, this particular transaction was not brought to the notice of the said official. Similarly, the appellant did not obtain the sanction of the Branch Manager for the purpose of granting loan against fixed deposit. All these aspects were dealt with in detail by the Inquiry Officer. It is true that the demand draft for a sum of Rs. 1,50,000/- taken on 24.8.2002 contains the signature of the Branch Manager. However, that alone will not go to show that the transaction was a bona fide one and the charges were false.

13. Thiru. Mohammed Mustafa appears to have given a letter to the Bank informing that the loan was taken with the permission of his brother. However, there is also an indication that the said letter was given to save the appellant from departmental proceedings. Therefore, on an overall consideration of the entire evidence, it cannot be said that the finding arrived at by the Inquiry Officer was without adequate materials. We have therefore, no hesitation in concluding that the guilt against the appellant has been established.

Second issue:

14. The remaining issue relates to the proportionality of punishment. While considering the punishment in a case of this type, the nature of service should also be taken into consideration. The appellant was an employee of the Bank. Therefore, integrity should be the hall mark. There is no question of retaining a tainted officer even after arriving at the conclusion regarding his guilt. Similarly, there is no question of retaining the appellant in service by giving lesser punishment.

Whether punishment was disproportionate:

15. Though the appellant has not made out a case for setting aside the finding with regard to guilt, still, a further question would arise as to whether dismissal was warranted in the facts and circumstances of the case.

16. The appellant in his defence produced documents to show that on earlier occasions also, loan was taken by Mr. Mohammed Mustafa against the fixed deposit account of his brother Mr. Mohammed Ibrahim. Though the voucher was not signed by the Bank Manager, the fact remains that the demand draft for a sum of Rs. 1,50,000/- contains his signature. The appellant projected a case of loan taken with the permission of the fixed deposit account holder. He has also produced a letter signed by the brother of the account holder. The demand drafts were taken in the name of the son and wife of the appellant. Various factors like disbursement of loan by way of demand draft for a sum of Rs. 1,50,000/-, which requires the signature of two officers; the issue of demand drafts in the name of wife and son of the appellant; availability of the entire records pertaining to the loan transaction in the Bank Itself for scrutiny by the manager and other officials, repayment of the amount on 5.9.2002 immediately on receipt of instructions from the Manager etc., would give a clear idea that it was only to tide over the difficulties faced by the appellant that he has taken this loan.

17. Since the appellant had completed about thirty years of service as on the date on which he was dismissed, we have asked the learned counsel for the Bank as to whether the appellant was involved in any previous misconduct. The learned counsel fairly submitted that this was the only misconduct and the appellant was having a clean record of service.

18. The appellant has taken up a contention that the Bank called upon him to submit his views with respect to the Inquiry report. The said communication was in Hindi. Since he was not conversant with Hindi, he has not submitted his response. This is also a factor to be taken note of for the purpose of awarding proper punishment.

19. The various documents exhibited by the appellant as well as the Bank and the evidence adduced before the Inquiry Officer though confirms the misconduct, suggests a lesser punishment. Incase the intention of the appellant was to cheat the Bank, he would not have taken the demand draft in the name of his wife and son. Similarly, he could have taken a demand draft for a lesser amount as it would not require the signature of the Bank manager. The case projected by the appellant that it was only with the knowledge of the Bank manager the loan was taken appears to be prima facie reasonable on account of the signature of the manger found in the demand draft. All these factors taken cumulatively would indicate that the punishment was disproportionate.

20. The Supreme Court in Chairman cum Managing Director, Coal India Ltd. and Another v. Muktd Kumar Choudhuti and Others 2009 (11) Scale 608 [LQ/SC/2009/1723] : LNIND 2009 SC 1720 : 2009-IV-LLJ-672 : (2009) 8 MLJ 460 [LQ/SC/2009/1723] , considered the doctrine of proportionality as a well recognized concept of Judicial review in our jurisprudence and I analyzing the earlier judgments on the point, observed thus at p. 470 of MLJ:

26.The doctrine of proportionality is, thus, well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault. Award of punishment which is grossly in access to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied white dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances Obviously, a reasonable employer is expected to take into consideration measure, magnitude and decree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

21. The Supreme Court in State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya 2011 (4) Scale 56 [LQ/SC/2011/342] : LNIND 2011 SC 247 observed that the Court should not lightly disturb the finding of guilt arrived at by the Bank. In the said case, the Bank employee was dismissed from service. There was a criminal case charged against him with respect to the very same misconduct. The criminal case ended in acquittal. Subsequently, the employee filed writ petition before the High Court. Though the single Judge dismissed the writ petition, it was allowed by the Division Bench. The Division Bench set aside the order of dismissal and directed reinstatement with full back wages and consequential benefits. The Supreme Court while setting aside the order passed by the High Court, substituted the punishment from dismissal to compulsory retirement.

22. In the instant case, we have scrutinized the records and on a careful consideration of the matter, we are satisfied that the punishment is disproportionate to the charges.

23. Reasons for modifying the punishment:

(i) Thirty years of unblemished service rendered by the appellant;

(ii) There was no monetary loss to the Bank in view of the repayment made by the appellant with interest;

(iii) Even though the deposit holder has not signed the loan application form, his brother, who was dealing with the Bank with respect to the NRE account maintained by his brother, has given a letter to the Bank to sanction the loan. The signature in the said document was duly admitted by him.

(iv) On an earlier occasion also, Mr. Mohammed Mustafa took a loan against the account of his brother Mr. Mohammed Ismail. The documents relating to the said transactions were marked as defence exhibits;

(v) Similar loans were sanctioned against fixed deposit receipts in the absence of the deposit holder. Those documents were marked as Exhibit D-1(a) to (e).

(vi) Mr. Mohammed Mustafa subsequently gave a letter to the Bank indicating that it was only with his permission, loan was taken. Though in his evidence Mr. Mohammed Mustafa has also stated that the letter was given only to save the appellant from the departmental proceedings, the fact remains that the letter of request for grant of loan contains the signature of Mr. Mohammed Mustafa.

(vii) There was no act of tampering with records. The loan records were available with the Bank. There was no attempt made by the appellant at any time to destroy the records with a view to suppress the evidence.

(viii) The demand draft for a sum of Rs. 1,50,000/- contains the signature of Bank Manager. As per the banking practice, any demand draft for a sum exceeding Rs. 50,000/- should contain the signature of the Bank Manager or another officer. Therefore, the defence taken by the Manager that he has signed the demand draft without inspecting the papers cannot be believed in its entirety.

(ix) The Branch Manager directed the appellant on 5.9.2002 to deposit the entire amount. The appellant complied with the said direction and accordingly, the entire amount with interest was deposited on 5.9.2002 itself.

(x) The demand drafts were taken in the name of the wife and son of the appellant. In case, his intention was to cheat the Bank, he would not have taken demand drafts in the name of his close family members.

(xi) The report of the Inquiry Officer was sent to the appellant along with a covering letter written in Hindi. It was the case of the appellant that he was not conversant with Hindi and as such, he was not aware of the necessity to submit a reply to the notice given by the Bank, enclosing a copy of the Inquiry report. Therefore, he failed to submit a detailed explanation to the finding recorded by the Inquiry Officer. The act of sending notice in a language not known to the appellant appears to have caused prejudice to him.

(xii) The prevailing family circumstances of the appellant appears to have prompted him to take the loan.

24. Now that we have arrived at a finding that the punishment of dismissal disproportionate to the misconduct, as borne out by records, the next question is whether we should remand this matter to the Disciplinary Authority for passing appropriate orders regard to punishment.

25. The misconduct in question relates to the year 2002, The appellant was dismissed from service as early as on 19.5.2003. The appellant has already attained the age of superannuation. Therefore, there is no question of remanding the matter to the disciplinary authority for the purpose of awarding appropriate punishment.

26. The Supreme Court in Union of India and Another v. S.S. Ahluwalia, 2007 (10) Scale 344 [LQ/SC/2007/1039] : LNIND 2007 SC 996 observed that in normal cases, if the Court finds that the punishment is disproportionate to the charges, the matter should be remitted to the Disciplinary Authority for reconsideration of punishment. In the said judgment, the Supreme Court further observed that in appropriate cases, with a view to avoid delay, the Court can itself impose a lesser penalty.

7.The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The Court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the Court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the Court can itself impose lesser penalty.

(emphasis supplied).

27. We would have sent the matter back to the Disciplinary Authority for reconsideration on the question of punishment. However, in the facts and circumstances of the case and taking note the age of the appellant, we are of the view that remand may not be proper. We are also of the considered opinion that in view of the peculiar facts and circumstances of the case, punishment of compulsory retirement would meet the ends of justice.

Result:

28. Accordingly, we uphold the finding of guilt arrived at by the disciplinary authority. However, we modify the punishment from dismissal to one of compulsory retirement.

29. In the upshot, we allow the appeal in part. No costs.