Karnataka High Court
Venkatesh V Nayak vs Dy General Manager Syndicate Bank on 3 November, 2010
Bench: V.G.Sabhahit, B.Manohar
IN THE HIGH COURT OF' KARNATAKA, BANGALORE
DATED THIS THE 312:» DAY OF' NoVEMBE1§..2§fj'1jT. VA
PRESENT
THE HON'BLE MR.
AND _ _ _ V A
THE HON'BLE MR. J
WRIT AppEA.1;;No. 1s'64sg*%2§Q0(s--DAis)
BETWEEN:
Venkatesh
S/0.Late Vasud.e1f~N.Nayak,: »
Major, j " ' '
Assistant M
Syndicate Bank,' * M
Saraswathipuraxn. * "
Mysore. * 2 " % ' APPELLANT
(By Sri.K5S-ubbaT'Rsp;'Se1Ti'0r.:Counsei for M / s. Subba Rao and
.. ..... ..
'DEpVuty«(}.?snV£§Tal Manager,
Syndicate. Bank,
Zonal office,
E Gandh1--Nagar,
Banga1ore--9.
I\)
2. The Inquiring Officer,
Sri.J. Hariharan,
Asst.Personne1 Manager,
Syndicate Bank,
Zonal Office,
Gandhinagar, --.
Bangalore--O9.
(By Sri.Ramdas, Senior Counsel for 0M/is.Sundaragsvfarrisk'"arid.L'
Ramdas Assts for R1 8: 2)
Writ appeal filed U/s_.4 of "Karn_ata1.{a" Htighgéourt Act,
praying to set asid§:_"'*~i.t1;he'_V §orpd'ei'»_p""passed in Writ
Petition.No.17509/92 dated:
This Writ and reserved and
coming on for of order this day,
B.1\/IANOHAR.J§';;'deiifi;rere'd,the roiiouzmgz
"'JUD§MENT
Appeliaiit is rhrepetitaoner in W.P.No.17509/1992 being
byj'the.ord.er dated 1-2-2000, passed by the learned
L» Single this writ appeal.
appellant filed a writ petition initially challenging
Charges dated 14-10-1991 framed against him
/5/
on 14-5-1991, a letter was addressed to him calling upon the
petitioner to answer certain charges levelled against him in
the said letter. The basis of the said letter is that
written by the Vigilance Cell of the year
letter issued has been produced at _AnneXu_re¥'B'.::inlllthewritd
petition. The petitioner made "~repr'es'entation
respondents bringing to their that"-by ~a..1'eport=ii
of the Vigilance Cell, chargesgpynrere "'already..._fra;Ened and departrnental enquiry agndhe had already undergone punishment. letter on the basis of is contrary to law.
Followed sheet dated 14-10-1991 was issued Being aggrieved by the e'ha'1*ge theppetitionevr got issued a legal notice through his' out the fact that he was already _:""'pL1nished..__earlicrfhience he cannot be punished for the second ""--itin1e"'for thevsame cause of action. Since the respondents ._'V"'hav.e' not viiithdrawn the said charge sheet, the petitioner flied A« has only issued legal notice that has been produced at Annexure--D in the writ petition dated 31-1-1992. In the said legal notice, the petitioners called upon the responjd~ents"--,,to desist from proceeding with the enquiry action will be taken against the resporidentd 2 notice cannot be treated as a reply. there order of stay of Disciplinary and._ the was' proceeded With. In fact, appeared: for the enquiry on 24-4-1992, he thereafter, he never appeared Enquiry Ofiicer submitted The Enquiry report was forwarded to» uthel "to" make his submission on 24-7-1992, ..Theupe.titioner"-through his letter dated 28-8-1992 svoughtfor so'rne'lrnore time to submit his explanation. Hence, it clear that"-.tl1effpetitioner is fully aware of the proceedings the lE<nqu_ir'y~ the report submitted by the Enquiry f_.Fhe"i"petitioner also sought for time to make his on enquiry report. Suppressing all these facts, fif 10 the petitioner has contended that he came to know about the order passed by the Disciplinary Authority only the u .
witness and after anaiysing the evidence. appre'c1ating"the' evidence submitted the report. given elaborate report holding ttiat against the petitioner are proved. been given to submit his the petitioner failed to make Disciplinary Authority after reapp1'eciatingV concurring with the views expressed. Officer passed the order on 29-9-1992 _ adopted by the respondents is in azccordarilcle With'l' law. finding recorded by the Enquiry Disciplinary Authority is purely a "question faet._7i'he same is not liable to be interfered with ' * this gHgon'ble"Court in exercise of its power conferred under A 12 same cause of action on Which, he has already been punished. Pursuant to the report submitted by the Vigilance Cell of the Syndicate Bank, the charge sheet has on 27~11- 1989. Thereafter, holding an enquiry,...th:eVv .. has been punished with reductionlgof u'increrne»nt__s, 14-5-1991. On the Very same day-.'__ one 'Jznore 1 issued on the basis of the very v.igilar1c-errepoyirt calling upon the appeliant to furnisldihis_ it is not open to the respondents to iss1ie--~--f.r.e:sh voffdharges, which was already abandoned. on earlier occa.s1oyns. Further there is inordinate issuing fresh Article of Charges the basis of the Vigilance report, the .. already been punished and he second time on the same cause of to double jeopardy and action of the lV'vV..'11're'spondents ..__is -liable to be quashed. The learned Senior 1 further contended that there is no fairness in the the respondents. There is no charge regarding A~ z dishonesty, corruption. Even though the appellant did not appear before the Enquiry Officer, the duty cast Enquiry Officer to conduct proper enquiry correct conclusion. There is no specific .f_indi:rl1gl 1:5' ' the each charges levelled against the:'pet}tioner'.'- charge is not proved by examiningany of ' the custoifiiers of the Bank. Since the appellant. has 'eonteinpt. oflthe court against the respondent been taken to terminate his sergvi-ce amount to bias against the Departmental Enquiry against the"'before the Disciplinary Authority, been transferred to Uttar Pradesh, is,linorel""llthan 2000 Kms away from saidiransfer order has been questioned before The transfer order has been stayed thelfiijgh In spite of the stay order issued by this he h'asl*been relieved from the said post in View of that gl'lilas.,_ifnitiated contempt of court proceedings in CCC A~ 795/2002. In the Contempt proceedings, the respondents have submitted apology and he was allowed to continue4:l_in_ the same post. With this malafide intention in ordeifto the petitioner, an enquiry has been conducte'd'hu_rri'edl'y . 1 termination order has been passed 'wt!-T16 principles of natural justice. The 'a._c_tion'of'th.e Inan.age.m'ent is-it malafide in law. The appeal filedy__t§y_V_appe1iant against the order of termination was appellate Authority without consideringpany raised by the petitioner. Filing is not an empty formality and the to consider the matter in proper instant case, the Appellate Authoritypbyx 13-1-1993 was pleased to $1i3l?€all/Vllyyithout considering any of the
-'sought for setting aside the order passed the learned féilngle Judge as well as the order passed by l H ".'thAe--.respond.ents by allowing this appeal. /8"
10. Sri.K.Subba Rao, learned Senior Counsel relieéfiupon the foiiowing judgments:
With r_(;L1'd to delay in initiation of Enqui.1;y_: H 2 "
1.JT 2005 ('7) SC 417 ( P.V.i\/IAHADEVAN V/s. Mipf xH C5'USs'ING BOARD) ..
2.AIR 1998 sc 1833 % L .
[STATE OF AN1jHiRA1ii9:éA:i:msHiwgQRADHAKRISHNA) 3.1990 sc 1308" " ' " ' [THE s"1'2iTE:oE":ii;ixDHjrA V/s BANI SINGH AND AnI01'1i:iiER)«.i 1 . 9
4.ILR 1999 3596 V V' V [NKRISHNA MiiRTHir V/s. THE SYNDICATE BANK AND .' V. 'I V. . . . . . .i 5.19§34{2)"SI;R;:'1€§3. '_j..
(A.ié§AUr_3US--TiNE V/s. supm. OF POST OFFICES, ' H ALWAYEJ 'V 4' to Bias:
/W
1.AIR 2001 SC 24 (KUMAON MANDAL VIKAS NIGAM LTD., v/s.
SHANKAR PANT AND OTHERS)
2. 2000(8) SCC 395 (BADRINATH V/s GOVERNMENT OF=.TAMIL§'Nz4.1_31'Ij44' ' AND OTHERS) _ M
3.AIR 1973 SC 2701 (SPARTHASARATHI v/s.:0'sTAT:::0'FI i5t2ADEsH) With regard to holding-{of 1 0' ILR 1986 sc 839.. 4' 0 00 (KAMATH "
With regard 'Vdispro00rfi0r:'a._'ré' fienaltv
1.AIR 200.3 1t3'7.?4 = NAT"H_0UprA\}/s ENQUIRY OFFICER (R.K.RAI), 0 _ BAK AND OTHERS ISZVQAIR 1983 0 ~ .. f V/s STATE OF HIMACHAL PRADESH AND ,_O«THERS) 'V--3.20O1S{6] KLJ 304 W"
N.P.KUDVA V/s. SYNDICATE BANK, HEAD OFFICE, MANIPAL AND OTHERS Lack of Evidence:
1.2009 (2) SCC 570 (STATE or PUNJAB AND OTHERS %i_.Ai; A GOYAL} Not a speaking, order:
1.AIR1985SC1121 _ V' Double ieopardv V 1.1972 SLR 6oi (PRAKASH: NA'I§i1?I'D'E*s:t'\.IDIJA;«NAIB TEHSILDAR v/ s THE FINANCIAL' CO?J[r&4ISS1AQNER (REVENUE) PUNJAB, cmaNot1oARH.ANpg.oTHERs} 1_»1";~ ..v_On':othe;»_-otizter hahd';"'Sri.Ramdas, learned Senior Counsel apj5ea1*in_g' 'fortheureispondents contended that the enquiry has CO11£CihuCte.do' accordance with law after foflowing the
-:.f_p:foce-dure preiscribed under the law. The appellant while a Manager at Merces~Goa branch, during the A"
18
period between 12-7-1982 to 5-7-1986 exceeding the..__power conferred on him sanctioned the loan and also saiicfioned certain credit facilities to some of the ciistciniiers = discretionary power of the Manager. dis.creti.onary'poWcr T has been misused. Acting beyond one's authorityamountsy tog misconduct and in such cases,"'--it"'--i,s not'--.nece':3sary"for the Bank to establish proof of occasioned by the unauthorised act of the The learned counsel further conitleiidetil of Charges relate to sanc'ilion;:.4"" V. to 6 persons and availing the by the appellant.
Whereas issued on 14-10-1991, the charges relatesflto..:lgr'antCloflcredit facility to 14 customers -- Twas thewsubject matter of Article of Charges issued Ascould be seen from Annexures-A and B by..__'tlie-appellant, the Article of Charges are different
1. Though an opportunity has been given to 'before the Enquiry Authority, only once he has Aw 19 appeared and sought for time thereafter, he did not appear before the Enquiry Committee. The enquiry has'.:Tb.een proceeded with and thereafter the Enquiry _ forwarded to the appellant to furnish his remai*}~:s;.. 2 has been furnished to the enquiry re:'p4ort._p;~ .. Vabse:n.ce::of the same, the Disciplinary Authority considered'ltljre./_Hen.t;uiI'y.i* report submitted by the §:3nquiry___llO:fti_c*er and"«reappreciating the same came to the conclusion _ t'if1'a.tu thj€*.:lc11arges have been proved against hiIn*'a_nd ucyylltlgnninating the service of the appellai:1t..';'--_VTlieappeal the appellant was also dismislsfied The Appellate Authority orderhas questioned in the writ petition. Hence, th.e..appel'iant not entitled for any relief and sought 'of 12;». Theryylearnletdi' i-counsel has relied upon the following ' l'i'~A..,.v§»11dgI1ii33'.lts:
/5"
23
and the Enquiry Officer submitted a report and the charges are proved against the appellant accordingly punishmxent'rhas been imposed withholding two increments _ effect. During the pendency of the saidgggenqui_ry;»t.h:e :Vitgilarlce"'~ Cell sent one more report in the year:'»._19E»}0 more irregularities. T his factrfearne to 'the "of respondent after issuance of the fir_st'charge the year 1988. On the basis of furnished by the Vigilance Cell, the _second""st1;$y;rV'causedI came to be issued and the1'veaftei:_.';'.A;rtir;le--,_of" Charges was issued on 14-10-199the Article of Charges issued earlier Article of Charges, the first Article of Charges relate ftoffthe sanctioning of the loan and regard to six customers. The fof:'.Charges relates to grant of credit facility C' 14 cuS«tonie1'sV;.:'~" None of which was the subject matter of the C Charges issued earlier. The irregularity mentioned of Charges dated 14-10-1991 is totally different 5* 24 and distinct from the irregularities mentioned in the first Article of Charges. If the respondent found soméjgnore materials after completion of enquiry, there initiating one more enquiry against thedelinquent 'officer; We T found no irregularity in issuing the with regard to the omission and..c'ommission;v..Which "came to light subsequently, which necessitate_:'initi.ation of disciplinary proceedings against the There is no impediment for the-flank of Charges dated l4--I0--20§O'l"":y1rasf" writ petition before this Hon'blev"Cou_rt;q refused to grant an interim order,' 'The appointed an Enquiry Officer to enquire intothe"mat.terv_arid the date was fixed to appear before Instead of filing objections to the Article of issued legal notice dated 31- 1-1992 advocate calling upon the respondents to desist .:fglproceeding the enquiry and the matter is subjudice, the is pending before the High Court though the éw 25 interim prayer was rejected. The Enquiry Officer conducted enquiry on Various dates. The date was informed. delinquent officer also. The enquiry was held « _ 9-4-1992, 10~»4m1992, 24-4-1992, i8--5:1992_ar'id:'i:i~f$¥€'i:-1-992'. The appellant appeared only on 2444- time thereafter he never turnecilup. The Man,a'g5e1r:ent3 has,"
examined their witnesses and the dloeulrnerits. The appellant has not cross--e§§srr1ineC};-,' :nan'agement witnesses.
Thereafter, the Enquiry a report on 22-7-1992. A was forwarded to the Calling upon the
appellant .~*1'1r1e appellant vide his letter dated 20;8.--l9El2 ._:inforrnedll"'the respondent that the writ eonlsideration before the Hon'ble High Court his-stibjudice not to proceed further. In order give one opportunity, the respondents vide letter l 19r9'23=Q--l992 called upon the appellant to furnish his a period of 3 days. In spite of the same, A"
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appellant has not furnished any reply. The Disciplinary Authority after considering the Enquiry report in appreciating the documentary and oral evidenc-e:.:'carne'i'to conclusion that the charges levelled against are proved. Further, taking into consideration they-past that earlier he was punished for'-§"w-timevs 'for"wtt1.e irregularity' committed by him, Disciplinary .passed"thVe order on 29-9-1992 terminating his of its power conferred under Regulation 24 of the Syndicate Banekfi tconduct] Regulation 1996. T11ei«§aiVd quashed before the Hon'ble Higla by amending the writ petition and i"o.rf-- order. This Hon'ble Court by iij.S~V.OrC16r':i.jre}e-cted..the prlayler of the appellant for stay of the order dated 2959- 1992.
""3§1i3*;.__l'Being.' aggrieved by the rejection of the interim order, 9 4/ 1992 was filed by the appellant, which came to £~ 27 be dismissed by this Hon'ble Court on 4-11-1992. Thereafter, the appellant preferred a statutory appeal before Authority. The Appellate Authority after "
memorandum of the appeal and :a'Js'o'*the--, grouiir:1sv'r'aised it therein by its order dated 13~l-l992lA:rejec_ted said The appellant has not challenged:"'t,he the Appellate Authority dated ¥i~:3f_f 1~ the learhed Single Judge.
17. The learnedfbihgfiglle aftefivflloolnslidering the matter by its orderfl iyr.it.':appeal was pleased to dismiss by giving elaborate reasons. The"..learnled_RV counsel contended that the second cause" cannot be issued for the same cause agctiyon is contrary to the law laid down by this Hon'ble.VlCouVrt 'reported in ILR 1986 KAR 839 in the case of we i§.s.R.T.C. As could be seen from the Article of f 'Char *'es issued earlier and the resent one, it is clear that in .5 , _ P Article of Charges the enquiry was confined to the A~ 28 irregularity with regard to 6 customers. During the process of enquiry some new materials has come to light. The tVigil;ance Cell has submitted one more report with or irregularity of sanctioning of creditv-facility to .l4xV'cListon1ers. 7 The respondents issued one moreV*Ar'ticle Charg-es".on, l4~ 10-1991, which is a distinct oi' the appellant cannot be Enquiry Officer has given sufficienlthlift}-ie appellant to have his say in only once before the he remained exparte.
He has theuularticle of Charges except issuing The Enquiry Officer after considering each and every charge levelled against the elaboratingv the evidence led by the parties subinitted' Reading of the said report makes °'--itvery clear appellant acted beyond one's authority
-4fan__"sanct1o'n.ed the loan and other facilities to the customers recovery of the said loan amount has become ii 30 the enquiry officer and accept the reasoning given by him, in support of such finding, it necessary for the punishing authorities"-i'..'ta:
reappraise the evidence arriving ' conclusion."
19. The Hon'ble Supreme Cour.t:v"ir1_ the clearly held that the Regi.1lationt---alsgo does 'not'-'obligate the Appellate Authority to -'._for its order.
Assuming, that by regulation also requires the reasons, still its order cannot be in'vaE--id:a;tedl,'fias it has discharged its obligation by l' "record and proceedings pertaining to ..disciplinarydaction. Further, with regard to ..:_iiala'fi;de»_A-allegation'"made against the respondent during the'c_o"ur_s'e. necessary foundation has not been and.__alsoV.nloi::pIeading is made with regard to the bias or
-.l.l.l'1nalafide allegation against the officer. Though the allegation rnade agaisnt Sri.U.M.Kini, he is not made party to /9"
manner in which decision is made. The relevant portion of the judgment reported in AIR 1996 SC 1232 in STATE or TAMIL NADU AND SSUBRAMANIAM reads as under:
" It is well settled law that "Tribunal:§ i only power of judicial review'r«iofi the adrr1i'11istrative action of the appellant on theicpornplaintls'relating to service conditionsfiopfc lt is the exclusive domain of 'authority to consider the "'eviderice: record findings the been proved or not. lt__I_s technical rules of evidence for the disciplinary proceedingsand_.é'thel:_aa;thority is to consider the material record.A'.In"'.judicial review, it is well V set_'iVlt?d21_paW__that"'th.e...CJourt or the Tribunal has no to --,:t~rench upon the jurisdiction to 5-.ciat'e.VplV_tlax,evevidence and to arrive at its own coii.cplusion_;JVudicial review is not an appeal from 'u__the decisjion but a review of the manner in which "'..:r*thei'-decision is made. It is meant to ensure that thedelinquent receives fair treatment and not to A"
33
ensure that the conclusion which the authority re-aches is necessarily correct in the View of Court or the Tribunal. When the conelnsioii reached by the authority is based on exd.den*ee.'~tl1e Tribunal is devoid of power towreapp-reciate'-the"' evidence and would come to lconc'I'n'sio.n the proof of charges. The only consideratio«n"'the"j Court/Tribunai has in its 'review to consider whether coiicinsionllis--based. on "evidence on record and supports the oryirliether the conclusion is based or1'no.:'etrit1-eince.'-' In the instant' arxived at by the Disciplinary----Au.thor:£ty*;.;is evidence. In View of that the order j_7asseé{l.'ijy lvth<L§_'l'i'17:li:sciplina1y Authority cannot be find fauit ..lI~£'etice,AAWe*~"hold that there is no delay in i1ai';iatingf_' th¢.,,pro_eeedin' ' ' angle, the appellant has not made out ..l_lj'an.y'wcase to iiiterfere with the order passed by the learned W Single Judge and also the order impugned in the writ pe!',3§tion. Accordingly, We pass the following:
The appeal is dismissed.
Parties to bear their own costs.-..
%%%% .. Judgé Judge