Karnataka High Court
P S Acharya vs The Chairman And Managing Director on 25 May, 2012
Author: Ashok B. Hinchigeri
Bench: Ashok B. Hinchigeri
1
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 25"' DAY OF May, 2012
PRESENT
THE HON'BLE MR. JUSTICE ASHOK B. HINCHIGERI
AND
THE HON'BLE MR. JUSTICE A.S.PACHHAPURE
WRIT APPEAL NO.1044 of 2008 [5-DIS]
Between:
P.S.Acharya,
S/o.Venkataramana Acharya,
Aged about 56 years,
Residing at CS No.6695,
Sector No.10, "Sri Krupa",
M.M.Extension, Anjaneyanagar,
Belgaum 590 016.
-- .... Appellant
(By Sd P.S.Rajagopal, Senior Counsel for Sri R.K.Kulkarnl,
Advocate)
And:
1. The Chairman & Managing
Director, Indian Overseas Bank,
Central Office,
No.151, Anna Salai,
Chennai 600 002.
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2. General Manager,
Appellate Authority,
2
I d 'jc ca ar
LenLal Office, No 151,
Anna Satan
e r 002
ne ueputy renerat f'anagm,
p a t i )
Indan Overse as Bank,
Central Office No 151
P n Saai
Chenna 600 002. Respondents
(y n Ia oh Ce aL 14 oca e or 1 o 3)
1[ s vnt apoeal s filed nndcr ect.on 4 of the Karnataka
High Court Act, 1961. rayino to set aside te order dated
202W a er i a -
V\.P Nofl167, 2002
I Via rjb r cdi e r d r r
On £).U 2011, vOrnrig on for pronouncement th;s cay Ashnir
B Hit hicen C, delivered lie oiiowVq'
JUDGMENT
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thereafter as Manager in Middle Management Grade Scale-Il and finally as Senior Manager in Middle Management Grade Scale-Ill based on his work-performance, honesty and dedication to the said Bank.
3. It is his further case that he was given the Best Zonai Branch Award when he was working as Manager at Kavalande Branch in Karnataka. He again won the Best Zonal Branch award when he was working as Manager in Belgaum Branch. He was posted to Kolhapur Branch, which was not doing well. The appellant claims to have converted the said Branch into a profit- making Branch by his painstaking endeavours.
4. The Bank Management initiated the disciplinary proceedIngs by issuing a chargesheet, dated 17.7.1997 (Annexure-A) alleging that the appellant transferred funds to MIs. Bobby Silk Mills Ltd. without any authorisation letter or confirmation cheques. The allegations pertained to the period when he was working as Branch Manager at Andheri Branch, Bombay. On noticing certain acts of commission and omission, when he was working as Senior Manager of Koihapur Branch, he C. r o€. 91 C ft Y at Ic
- U U - t n o a t e I to C 2 p a' a e h 0 C e t 0 e C. tel s a h e t s is t yo C t a e 1 e 0 f 6 to heI,c the tn ;r reg'csed en 'vie 4?VD I D!D RESLSqEC 7-1 9 e tn onf he o n after ot p dural rrc.g dnties, s 0 tends S ajaqopal. But the same cannot be strained to Lake as the appellant'c admission of the misconducts alleged 10 1 °arned Coun bmits t sect or t 0 rrc V ancing submi he re c r the D Courts iudgment in 'lie case of JAGDISH PRASAD SAXENA. v. THE STATE OF MADHYA BHARATH (now Madhya Pradesh) eDorted in AIR 1961 Sc 10O. The raievaflt portion of the said juagment is acttci elow .1. VO.) oØDE Ifl statc's . w' -• a.. tec the sq ,.
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:-iculd :ertainiy onsr:rure a ser,os .pfirm(y n the order
3* a,sn,ss& oacec aga'nst him
11. The iear.led Senior Louns& also referred to this .irt's dec isio 1 ease of G.CH NNARAMAKRISI' CANARA BANK n hF 3 423, v e .5 0 in gane hasad o tiefirstct i sation of the LA ARD facility an he has not ad ed the secono charge or failure to clear the overdues. Based on this authority, the learned Senior Counsel would advance the contention that at 'he most the appellaat can be punished only ne procedurai 'aose. For the rroeeA iral lapse, thc aprellant ur t ot be g'vc. hest p .i f disnissa he or, me i tin. t" d 'laa tI c'j r this r'kz 1 it:' . I . jiJ J' .(,4,fl . r, t 1 .,a.r cow. t ne d'rp'ssai :rcer s eld' be ":s,istairi,til% E. i•I :'k'"r . 'i.qçpe et' ":0. ,'c.c. 4 nfjSp" rs' 1 % 'ik 'a, 8 Sr iago wot iso olair the ach Regulation 6(171 of the Indian Overseas Bank Officer Employees' )isc'pii andl peai R gulatlu 1976 "1976 Regula ons' to r o ea fo "6. PRQ,frDURfr F)R IMPOSING tt'JOR PEI'.ALUES
117) me Inquv'ng Authoity 3 ma ' , after the off'ce;
enplokee dose0 tc evicierce, and shall f the off -er
cot i Se! urn ge
tion Oil Cu 'S p LW
in the evidence fr the pLeDose of enabling the oer
employee to expiain any c.'rcu'nstances appearing 'n the ev den..e against "m S i. ar ou app g the respondent Nos.1 to 3 submits that the non questicninq o lie apoelant by the Enqu:rv Officer hac not put apDeiiant t ce. 'i h a h ii "41 r ting h& pi edura' apses, r o rejt. cc s C ed a i'm in t'w n.ILI!r/ flff,rer. I1 rPad ou' 'he i-I.-?d tJo'c from t'.e a tSU LKU RB ERiE S. OP ST GA o I 1$.
9
"The appellant was terminated following a departmental enquiry the non-examination of the
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appellant by the Enquiry Officer does not violate Rules 8(1A) of the All India Services Disciplinary Rules, 1969, -
The Appellant must establish prejudice against The -
Vigilance commissioner's Report was not supplied But -
the Authority in consultation with the Vigilance Commission gave the order This does not leave the
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order improper - The decision was taken by the disciplinary authority independently the appellant must
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provide prejudice against him the person who drafted
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the charges and made a prima fade case can be appointed as Enquiry Officer does not constitute
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prosecution as Judge the appellant to a substantial part
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cross-examine the prosecution witness and defence witness - at a belated stage filed an application for lawyer
- the application rightly rejected no bias can be inferred
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- appeal dismissed.
15. Sri Harsh Desal has also relied on the Division Bench judgment of this Court in the case of HINDUSTAN AERONAUTICS LIMITED v. SHANMUGAM, reported in ILR 1991 KAR 3382. It is held therein that there is no need for holding further enquiry where the delinquent has admitted the guilt. It is further held that the non-observance of the principles of natural justice also will not weigh much.
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falls for our consideration is whether the appellant has made a categorical admission that he has committed the misconduct.
Our perusal of the statements made by the appellant, which are extracted hereinabove clearly indicate that the appellant's admission is confined only to the committing of the procedural IrregularIties. Further, such statements are Immediately followed by the following statements: -
a) The Bank Is not exposed to any loss.
b) It Is only to resurrect a particular Branch of the Bank.
c) The loans granted are repaid in the normal course.
19. The Appellate Authority and the Reviewing Authority are not justified In considering only the first sentence to the exclusion of further or accompanying sentences. If a delinquent or chargesheeted employee has admitted his procedural mistake, the same cannot be used to mean that he has admitted all the misconducts alleged against him. In taking this view, we are fortified by this Court's decision In the case of GChennanmakrlshna (supa). On the strength of some ASH 12 statements, which amount to admission, the appellant could not have been removed from the service without holding the enquiry adhering to the 1976 RegulatIons.
20. We also notice with concern that none of the enquiry proceedings including the enquiry report would indicate that the appellant has unlawfully enriched himself. Though the serious word 'fraud' Is used in some places, nowhere it is stated that the appellant has derived any benefit from his acts of committing the procedural lapses. The neutral meaning of the term 'fraud' is committing of some acts to deceive another party. In the instant case, it Is not even the case of the DiscIplinary Authority that the appellant has cheated the Bank or has caused any loss to the Bank by his cunning, deception and artifice.
21. We do not find any grave moral culpability. If the Disciplinary Authority, Appellate Authority or the Reviewing Authority were only to consider the extenuating circumstances, they would have arrived at different conclusions. It is not in dispute that the Bank's Branch at Kolhapur turned the corners when the appellant was heading it. The appellant's version that ARK 13 o B ct as srk B ct d 3t v ir I on the serge of clocure when he wac sent there. is alsn not being 10 C outc 22 The next question that rises fur cur consideration is et' t er r o di a°v e n to o a non-compliance with the provisions contained in Regulation 70 1 L 3 a j r h s extracted hereinabove reoutres the Enou'ry Officer to cjuestion e r re .j a I- i evidence, if the officer has not got himcelf examined In the a a 't p a a o t is e i i e enquiry proceed:ngs Therefore, the said provsbns have to w c y I' I at p crbs a i ia a ro Juiflu d cart;cdiar Vt, 'ts€it d' t r..jst ce 'Ju'ie 'n that ;'•ani'.u f T auoi q' 4 die p I 31) be '• " ': he •nt.y •,i. s judqriierr .- -' n KUNWAR PAL ING'1 (DEAD BY L S. STAT 0 U AND 0 4',. 2007)!SCC85.
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23. We are unpersuaded to accept the submission urged on behalf of the respondent Nos.1 to 3 that no prejudice is caused to the appellant by not questioning the appellant on the circumstances appearing against him In the evidence. The Inquiring Authority's quizzing the appellant would have brought out the circumstances under which the appellant acted In a hurry and without following the prescribed procedural requirements.
24. The adherence to Regulation 6(17) of the 1976 Regulations cannot be dispensed with. The Apex Court in the case of S.L.KAPOOR v. JAGMOHAN AND OTHERS reported in AIR 1981 SC 136 has this to say:
'Well, even If the case had been properly conducted, the result would have been the same.' That is mixing up doing justice with seeing that justice is done (per Lord Widgery C). at p.1375).
In our view the principles of natural justice know of no exclusionary rule dependent on whether it would have made any difference If natural justice had been obseived.
The non-observance of natural justice Is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is unnecessary.
5 Thus, on both the g by his learned 3e i 'r Counsel the ippellant is ent tc succeed. Vie cet aside the learned Single Judgts order by allowing P No.27161/2002 in part The orders oassed by the Disdplinary Authority, Appellate Authority and Reviewing Authority, impugned iii the writ petit on are quashed. In the normal course, we would have remanded the matter to the respondents for holding a fresh enqu!ry for adhering to the equ.rements of Regulation 6(171 of 1975 Regulations. But the t p ellant has already attained t[e f uperannuation. We e find it apDropriate t) r iment order and to the matter ittedli, a ed th fee g th ejulantiE-s, i' '"'rvie '3 mohat'c r o hn F5dnk has rd ry 4 r,s (,r. accou • o ent' 'r,-EdLrai H It rt.'t , h( j:i( JdtiO 1 •_ C .,l! '.i', .th.' 'Ire 'C ati plat asdc.v bte c rot committing th' prncelural lapses 21 Therefore, in o"r cor's;dered JlCvV, t'e ends of juctic.e '.oU.d be met by sca)'ng down the punisnmerit :rom aismissal to c rpuo i Yki. fl 015 .b9 fle 3t of us uspen br tilt e datc. 0 hs ipea u tio al b taken into actount dS his continued service period for the limited urposc of corw ng ftc rctira. bcnefits 2L th's appeal s arcordingly ailoh'ed i' part. ho order C 'S 'f