Karnataka High Court
Mohan K Horahatti vs Syndicate Bank on 12 December, 2012
Author: Subhash B.Adi
Bench: Subhash B. Adi
:1:
IN THE HIGH COURT OF KARNATAKA
CIRCUIT BENCH AT DHARWAD
DATED THIS THE 12TH DAY OF DECEMBER 2012
BEFORE
THE HON'BLE MR.JUSTICE SUBHASH B. ADI
WRIT PETITION NO.19441/2002 (S-DE)
BETWEEN:
Mohan K.Horahatti
Aged about 54 years
S/o Krishnaswamy
Earlier working as Deputy Chief Officer
An Officer in Middle Management
Grade Scale-II at Syndicate Bank
Zonal Office, Calcultta since
Compulsorily retired and residing at
No.C-126, Shivagiri Layout
Opp: V Block, Vidhyagiri, Bagalkot-587 101
Bagalkot District. ...PETITIONER
(By Sri.Sunil C.Desai, Adv.)
AND:
Syndicate Bank
A body constituted under the
Banking Companies (Acquisition and
Transfer of Undertakings) Act, 1970
Rep. by its General Manager (P)
Industrial Relations Division
Head Office, Manipal-576 119
Udupi District. .. RESPONDENT
(By Sri.Abhilash Raju, Adv. for
M/s.Sundaraswamy Ramdas & Anand, Advs.)
:2:
THIS PETITION IS FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DT.31.12.2002 BY THE DISCIPLINARY AUTHORITY VIDE ANN-R
AND ORDER DT.27.2.2002 BY THE APPELLATE AUTHORITY
VIDE ANN-T AND DIRECT THE RESPONDENT TO REINSTATE
THE PETITIONER INTO THE SERVICES OF THE BANK
FORTHWITH WITH ARREARS OF SALARY, CONTINUITY OF
SERVICE AND ALL OTHER SERVICE BENEFITS FLOWING FROM
QUASHING ANN-R AND T.
*Corrected
vide chamber
THIS *PETITION COMING ON FOR FINAL HEARING THIS order dated
DAY, THE COURT MADE THE FOLLOWING: 7.1.2013.
ORDER
In this Writ Petition, the petitioner has called in question the order dated 31.12.2001 passed by the Disciplinary Authority produced at Annexure-R, confirmed by the Appellate Authority by order dated 27.2.2002 produced at Annexure-T.
2. In the year 1976, petitioner was appointed as a Clerk in the respondent - Bank and was promoted to the Officer Cadre w.e.f. 3.6.1985. During 1993 to 1996, he was working as a Branch Manager at Pattadakal. In respect of transaction during this period, complaints were received as regard to the alleged misappropriation. In this regard, the Bank made a preliminary investigation and after getting the report, show cause notice was issued and thereafter Articles :3: of Charges were served on the petitioner interalia alleging that, he has misappropriated depositors' fund to the tune of Rs.30,096/- out of Rs.1,05,000/- handed over by one B.R.Tuppad for deposit. Out of the amount handed over to the petitioner, petitioner was required to deposit Rs.60,000/- in the name of three children of said Tuppad. However, petitioner had made adjustment to the tune of Rs.43,079/- towards the crop margin money to the fresh loan in respect of loan account Nos.5/1995 and 6/1995 without the written mandate from Sri.Tuppad/without informing him and thereby cheated an illiterate person. It as further alleged that, the petitioner violated the procedural aspect in the matter of sanction of loan, and had and obtained inflated quotations for pump sets, pipes, etc., from M/s.Ashok Electrical Stores. In pursuance of the Articles of Charges and by considering his reply, the Management appointed an Enquiry Officer.
3. Before the Enquiry Officer, on behalf of the Bank, nine witnesses were examined as MW-1 to MW-9. From amongst them, MW-6 is the complainant, another depositor :4: in the respondent - Bank, who had alleged the misappropriation by the petitioner. The remaining witnesses MWs-5, 6, and 9 were independent witnesses, who were also customers of the Bank. MW-1, the Investigating Officer and MW-2 was the Officer of the Bank. MW-6 in his evidence has stated that, he had borrowed money of Rs.10,000/- from his friend, and was required to discharge the said loan. Since he had land measuring 3 acres 6 guntas and was not fetching any income, he sold the said land for consideration of Rs.1,05,000/- and, had handed over the said amount to the Bank Manager, the petitioner herein to deposit in the Bank. However, when he received the recovery notice, he came to know that, the said amount has not been deposited to the loan account. Even in the cross-examination, he stated that, he is an illiterate person, he does not know reading and writing, he had only put his thumb impression and denied thumb impression in respect of withdrawal receipt.
4. Defence of the petitioner was that, he had not received Rs.1,05,000/- from MW-6. He had only received :5: Rs.92,525/- for which voucher was issued. Petitioner in support of his case, he had also examined two witnesses as DW-2 and DW-3.
5. The Enquiry Officer by his detailed report held that, the charge as far as inflated quotations is concerned, it was held as not proved. However, the charge of misappropriation is concerned, it was held proved and held that, the petitioner had misappropriated an amount to the tune of Rs.22,475/- i.e., Rs.10,000/- out of Rs.14,000/- to be deposited and misappropriated Rs.12,475/-.
6. In pursuance of the said report, the Disciplinary Authority after issuing second show cause notice and considering the report and the explanation passed an order of dismissal. Aggrieved by the same, the petitioner filed an appeal before the Appellate Authority. The Appellate Authority by a detailed order concurred with the findings of the Disciplinary Authority as far as charge No.1 is concerned, i.e., charge of misappropriation, however, as far as charge No.2 i.e., violation of procedural aspect is :6: concerned, the Appellate Authority held that, there is no procedural irregularities. Having regard to the gravity of the charge, it confirmed the order of Disciplinary Authority. It is against the said order of dismissal and the order of the Appellate Authority, the petitioner is before this Court.
7. Learned Counsel for the petitioner submits that, the Bank by appreciating the work of the petitioner had awarded him. Further, in respect of the very same allegations, on enquiry, a report was submitted, holding that there is no procedural irregularities nor there is any misappropriation. However, the Enquiry Officer without giving an opportunity to the petitioner has submitted an erroneous report. He relied on Annexure-J wherein petitioner had sought for supply of certain documents as mentioned in Annexure-J, however, they were not supplied and the enquiry without giving adequate opportunity to the petitioner concluded the enquiry. Thus, the enquiry was not fair and proper. He also submitted that, there is no evidence to prove that, MW-6 had paid Rs.1,05,000/- to the petitioner. The evidence of MW-6 is mutually contradicting as MW-6 himself has stated that, :7: he sold the land at Rs.1,15,000/-, but at the same time, he states that it is sold for Rs.1,05,000/-. Though misappropriation is alleged earlier as Rs.30,096/-, however, the Enquiry Officer giving go-by to the documentary evidence holds that the petitioner has misappropriated to the tune of Rs.22,475/- only on the ground that, MW-6 being an illiterate villager and there is no enmity between the petitioner and MW-6, his version is credible and acceptable, accordingly, based on the same, he submitted the report. The Appellate Authority also failed to re-appreciate the evidence and erroneously concurred with the findings of the Enquiry Officer.
8. On the other hand, learned Counsel for the Bank submitted that, though earlier reports show that, there was no procedural lapse on the part of the petitioner, however, serious complaints were made by the customers as to the irregularities in their deposit made in the Bank. It is in this regard, an investigation was made. Based on the investigation report, a show cause notice was issued. After considering the explanation, the Article of Charges was :8: issued. To support the charge, as many as 9 witnesses were examined by the Bank. MW-6 himself is the complainant, who has no enmity with the petitioner. In his evidence, he has stated that, he had given Rs.1,05,000/- to the petitioner and the petitioner does not dispute that, he had received the amount from MW-6, but the petitioner's defence is that, he had only received Rs.92,525/- for which he had issued a voucher. However, MW-6 in his examination-in-chief as well as in the cross-examination has stated that, he had not put his thumb impression on the withdrawal receipt. This evidence has been appreciated by the Enquiry Officer and also by the Appellate Authority. This being a pure finding of fact, the jurisdiction of this Court under Article 226 of the Constitution being limited, this Court will not go into the disputed question of facts. Even otherwise, the Bank has produced not only the oral evidence but also documentary evidence. The deposit receipts by themselves speak of the misappropriation and submits that, in case of the allegation of misappropriation, the punishment should have been :9: dismissal, however, Bank has taken lenient view by ordering the compulsory retirement.
9. The Enquiry Officer has submitted a detailed report. Petitioner does not dispute that, MW-6 is an illiterate villager. He also does not allege that, there was no enmity between the petitioner and the MW-6. It is also not in dispute that, MW-6 was a depositor. According to MW-6 and other witnesses, MW-6 sold the land measuring 3 acres 6 guntas to discharge loan of Rs.10,000/- borrowed by him and was to deposit the amount in the Bank. It is in this context, he had given money to the petitioner, who was a Branch Manager of the said small village. Petitioner also does not dispute that he knows the customers personally. However, the defence taken by the petitioner is that, only Rs.92,525/- was deposited for which it was accounted by voucher also. There is nothing to disbelieve the version of MW-6. It is not only MW-6, the said evidence is also supported by other evidence. The Enquiry Officer by a detailed report on proper appreciation has held that the charge as regard to misappropriation is proved. He has : 10 : considered the voucher receipts and has found that, out of Rs.14,000/-, only Rs.4,000/- was deposited and Rs.10,000/- misappropriated and out of Rs.1,05,000/- only Rs.92,525/- was made and remaining was misappropriated. It is in this context, he had given a finding that misappropriation is to the tune of Rs.22,475/-. The Appellate Authority also concurred with the said finding by giving cogent and valid reasons.
10. This being a Writ Petition under Article 226 of the Constitution of India, this Court will not sit in appeal against the finding of facts. Even otherwise, I do not find any merit in the case of the petitioner nor there is any dis- proportionality in the order of punishment.
11. Having regard to these evidence and material produced by the Bank before the Enquiry Officer, I find it is not a fit case for interference with the order of the Disciplinary Authority as well as the Appellate Authority. : 11 :
Accordingly, the Writ Petition fails and same is dismissed.
SD/-
JUDGE KNM/-