Karnataka High Court
S.Srinivas S/O Naga. S vs Canara Bank on 23 March, 2018
Author: K.N.Phaneendra
Bench: K.N.Phaneendra
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IN THE HIGH COURT OF KARNATAKA
DHARWAD BEN CH
ON THE 23 R D DAY OF MARCH 2018
BEFORE
THE HON'BLE MR. JUSTICE K .N . PHA NEENDRA
WRIT PETITION N O.64627- 2009 (S- DIS)
BETWEEN :
S.SRINIVAS,
AGED ABOUT 49 YEARS,
S/O NAGA .S WORK ING AS OFFICER
IN JUNIOR MANAGEMENT GRADE
SCALE-I , CANARA BANK, KAIKINI ROAD,
KARWAR AND RESI DING AT BHAGYOD AYA
APARTMENT, C BLOCK, HUBBEWADA ,
KARWAR-580 020.
...PETITIONER
(BY SRI G.M.BHAT & SHANKAR P HEDGE, ADVOCATES)
AND:
1. CANARA BANK
A BODY CONSTITUTED UNDER THE
BANKING COMPAN IES (ACQUISITION &
TRANSFER OF UND ERTAKINGS) ACT , 1970
HAVING ITS HEAD OFFICE AT NO.112,
J.C.ROAD , BANGALORE-560 002.
REPRES ENTED BY ITS GENERA L MAN AGER ( P) .
2. CANARA BANK
D.A.CELL, HRM S ECTION,
CIRCLE OFFI CE, B.N.NAGAR,
HUBLI REPRESENT ED BY ITS
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DEPUTY GENERA L MANAGER (P)
...RESPONDENTS
(BY SRI A .P.KAMOJI, ADV OCATE)
THIS WRIT PETITION IS FILED UNDER ARTICLE
226 OF T HE CON STITUTION OF IN DIA PRAYING TO
QUASH ORD ER BEARING REF NO.MGC/DAC/ HRM
/311/2007 DATED 29.12.2007 ( UN DER ANNEXURE-K
TO THE WRIT PETITION) PASSED BY THE
DISCIPLINARY A UTHORITY AND ORDER DATED
13.09.2008 PASS ED BY THE APPELLATE AUTHORITY
COMMUNICATED T O THE PETITIONER BY PROCEEDINGS
BEARING NO.MGC/DAC/HRM/166/2008 DATED
22.09.2008 (UND ER ANNEXURE-M TO THE WRIT
PETITION) PASSED BY THE APPELLATE AUTHORITY BY
ISSUE OF A WRIT IN THE NATURE OF CERTIORARI AN D
GRANT ALL CONSEQUENTIAL BENEFITS FLOWING
THERE FROM INCLUDING RESTORATION OF PAY ,
INCREMENTS AS IF THE PENA LTY ORDER PASSED BY
THE DISCIPLINA RY AUTHORITY WAS NOT IN
EXISTENCE AND ETC.
THIS WRIT PETITION COMING ON FOR FINAL
HEARING THIS DAY, THE COURT MADE THE
FOLLOWING:
ORDER
Heard the learned counsel for the petitioner and the respondents and perused the records.
2. The petitioner has called in question the order passed by the Disciplinary Authority i.e., Respondent No.1 :3: in imposing major penalty in No.MGC/DAC/HRM/311/2007 dated 29.12.2007 as per Annexure-K, which is confirmed by the Appellate Authority i.e., Respondent No.2 in No.MGC/DAC/HRM /166/2008 dated 22.09.2008 as per Annexure-M.
3. The record discloses that the petitioner was working as a Bank Officer under Respondent No.1 at Circle Office, Hubballi. Earlier to that, he was working at a place called I F Section, C O, Mangalore branch from 24.11.2003 to 05.06.2006. During the period from 07.11.2005 to 10.12.2005 he was posted to undergo external and in house training at Bengaluru. It was found that he stayed Bengaluru in some hotels and clamed excess amount by producing fake bill in order to cause wrongful loss to the Bank. Therefore, respondent No.1 decided to hold a departmental enquiry against the petitioner. Accordingly articles of charges were framed against the petitioner, which reads as follows;
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"Articles of Charges You are presently working as an Officer at B.C.Setup, Margao, Goa, from 15.06.2006. Earlier you were working as an Officer at I F Section, C O Mangalore from 24.11.2003 to 05.06.2006.
You were identified & posted to undergo External U In- House Training on COBOL/LINUX & IBBS PHASE-I at Bangalore during the period from 07.11.2005 to 10.12.2005 vide proceedings dated 29.09.2005 of SS(O) C.O, Mangalore. On completion of the training programme, you have submitted TA bill to SS(O), CO, Mangalore for Rs.53104/-. In the said T A bill, among others, you have claimed Rs.30968/- towards lodging expenses and enclosed the lodging bill No.7238 dated 10.12.05 for Rs.30240/- obtained from M/s Hotel Pushpamala Pvt. Limited, Bangalore, along with another lodging bill for Rs.728/-, in proof of the said claim. Room tariff quoted in the bill is Rs.875/- plus tax at Rs.70/- per day. Subsequently it is observed that the room tariff claimed by you is in excess of the normal tariff prevailing/charged in that lodge.
The investigation conducted into the matter revealed that prevailing rent/tariff in the said hotel for the room occupied by you is just Rs.325/- plus tax of Rs.13/- per day. You have obtained lodging bill from Hotel :5: Authorities for the inflated amount & submitted the same along with the TA Bill.
Thus, you have made false claim on the Bank by submitting inflated lodging bill to derive undue pecuniary benefit from the Bank. You have thus behaved in a manner which is unbecoming of an officer employee.
The details of charges are more clearly enumerated in the statement of imputation to this Articles of Charge.
Explanation in the matter was called from you but the reply submitted by you is neither convincing nor satisfactory.
By your above actions, you have failed to ensure and protect the interest of the Bank and to discharge your duties with utmost honesty, integrity, devotion and diligence. You have thus, contravened Regulation 3(1) read with Regulation 24 of Canara Bank Officer Employees (Conduct) Regulations 1976 which is punishable under the provisions of Canara Bank Officer Employees (Discipline & Appeal) Regulations 1976."
4. On the basis of the said article of charges, opportunity was given to the delinquent employee to file his objections. After receiving the objections, enquiry was :6: held by a competent enquiry officer. During the course of enquiry, it is seen from the records that the respondents have also examined three witnesses on their side and produced several documents and the delinquent employee also examined one witness on his side as DW.1 and closed his case. Thereafter the enquiry officer has given a detailed report as per Annexure-F considering all the grounds urged by the delinquent employee and considering all the material enquiry officer has held that employee was guilty of misconduct, as alleged against him.
5. The Disciplinary Authority after receiving the report, has also in detail considered the evidence on record led by the department and as well as the delinquent employee, has come to the conclusion that the enquiry officer is right in holding the delinquent employee guilty of misconduct. Therefore it agreed with the findings of the enquiry officer and thereafter passed the penalty in the following manner:
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"Reduction to a lower stage in time scale of pay by two stages for a period of two years during which period, the officer employee shall not earn increment of pay and on expiry of the said period, the reduction shall have the effect of postponing future increments of his pay"
6. Being aggrieved by the said order the petitioner has approached the appellate authority i.e., the 2nd respondent and the 2nd respondent vide orders dated 22.09.2008 has re-appreciated and reconsider the materials on record has come to the same conclusion as that of the Disciplinary Authority and dismissed the appeal confirming the penalty imposed by the Disciplinary Authority. Being aggrieved by the above said three findings, the petitioner is before this court.
7. The learned counsel Shri Ganapati M Bhat strenuously arguing before this court on a legal point and submitted that, according to the Canara Bank Officers and Employees (Disciplinary and Appeal) Regulation, 1976 and particularly Regulation No.6.(17) the procedure :8: contemplated under the said regulation has not been followed. He further contends before this court that the disciplinary authority or the appellate authority have not properly considered Annexure-F and as well as the evidence of DW.1, but mainly relied upon the evidence of MW.3 in order to penalize the petitioner. Therefore he submits that, the order passed by the Disciplinary Authority and as well as the Appellate Authority deserves to be interfered by this court.
8. The learned counsel for the respondents on the other hand submits that, this court cannot interfere with the orders of the disciplinary authority or the appellate authority on facts but can, only if any irregularity or illegality committed by the authorities, while exercising the power under Article 226 of the Constitution of India.
9. The factual aspects which are concluded by the Enquiry Officer, Disciplinary Authority and as well as the :9: Appellate Authority cannot be lightly interfered with. Therefore, he prays this court to dismiss the petition.
10. After hearing the submission of the learned counsel, first let me consider, the grounds urged by the petitioner's counsel with reference to the legal aspects i.e., Regulation 6(17) of the Canara Bank Officer Employees (Discipline and Appeal) Regulations, 1976, said provision reads in the following manner.
6. Procedure for imposing Major Penalties :
1) xxxxxxxx to
16) xxxxxxxx
17) The inquiring authority may after the officer employee closes his evidence, and shall if the officer employee has not got himself examined generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him.
(emphasis supplied) : 10 :
11. Of course the discretion vest with the inquiring authority to formulate the questions on the basis of the evidence adduced by the department and question the circumstances appearing against the accused by putting the said question to the delinquent employee. But it is mandatory, when the employee does not examine himself before the authority.
12. In that context, he also relied upon a decision of this court reported in (2006) 6 Kar.L.LJ 696 between V.V.Kamath Vs. The Assistant General Manager, Bank of Baroda, Bangalore and others at head note (C), the court held in the following manner.
"In terms of Regulation 6(17) of the Canara Bank Office Employees (Discipline and Appeal) Regulations, 1976, if an employee has not examined himself, the Enquiry Officer shall generally question him on the circumstances appearing against him in the evidence for purposes of enabling him to defend his case to the extent of circumstances appearing in the evidence against him . . . . Having regard to : 11 : the failure on the part of the Enquiry Officer in not conforming to the mandatory provision and this being an admitted position, the enquiry is vitiated. Since it is not possible to hold that the petitioner was in a position to rebut the evidence against him by way of defence, the obligation was mandatory on the Enquiry Officer in this regard. The Enquiry Officer having failed in this regard, the further contentions need not be addressed at all. The entire enquiry stands vitiated on account of this. In this view of the matter, the petition deserves to be allowed and the order of compulsory retirement requires to be se at naught."
13. Though the above said provision creates some rights in favour of the delinquent employee, but the court has to examine under what circumstances, not following of the procedure affects the rights of the delinquent employee or it causes prejudice to him.
14. So far as this case is concerned, as could be seen from the enquiry officer's reports on the side of the department, three persons were examined and they were : 12 : fully cross examined by the petitioner. On the side of the petitioner also one witness, DW.1 was examined and several documents particularly DEX 5/1 to 8 documents have been marked.
15. Apart from the above, the delinquent employee also filed detailed written arguments explaining as to why the evidence of the witnesses of the department should not be believed. The detailed written argument shows that, he has meted out all the allegations made against him as spoken to, by the witnesses examined on the side of the department. Therefore, it clearly goes to show that, opportunity was given to the petitioner to lead the evidence and in fact he led evidence examined DW.1 and closed his case. Therefore in my opinion the above said provision is not in a strait jacket manner applies the present case.
16. On careful meticulous understanding of the above said regulation it says that, it is the discretion vest : 13 : with the inquiring authority that, he may after the officer employee closes the evidence, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the officer employee to explain any circumstances appearing in the evidence against him. However, the same provision is mandatory, if the employee has not got himself examined. Here the words 'the employee not got himself examined' has to be understood in such manner that, he has not led any evidence on his side, though he was given with an opportunity by the Enquiry Officer. Whether he examined himself or he examined any other witnesses on his side that would suffice that, he has utilized that opportunity to lead the evidence on his side. Therefore, When the officer has examined a witness on his side and closed his evidence the first part of the above said regulation is applicable.
17. Further added to that, the purpose of examining the delinquent employee by explaining the : 14 : circumstances appearing against him is for the purpose of enabling the officer to explain the circumstances appearing in the evidence against him. In fact that has been very effectively done by the petitioner in this particular case by in-detail filing his written arguments. Therefore, very purpose of said the provision has been very well taken care of by the enquiry officer by providing opportunity to the petitioner to file his written arguments. Therefore, when there is absolutely no iota of materials to show that any prejudice was caused to the petitioner even accepting not following the said regulation that would not vitiate the enquiry itself. Therefore, the said ground in my opinion is not available to the petitioner.
18. On perusal of the entire materials on record, a detailed report has been submitted by the Enquiry Officer. Much pain has been taken by the enquiry officer for meticulously considering the evidence of DW.1 and the documents produced during the course of evidence of DW.1. Each and every document has been taken into : 15 : consideration and reasons have been assigned to come to a definite conclusion.
19. Apart from that, after the receipt of the enquiry officer's report the disciplinary authority has also in detail considered the enquiry officer's report and the appreciation of the materials by the enquiry officer and disciplinary authority has also in addition to the enquiry officer appreciation, also re-appreciated the factual aspects and found that, the misconduct of the petitioner has been proved. The Appellate Authority has also in fact bestowed its contentions to the main grounds urged by the delinquent officer in the evidence of DW.1 and also with reference to the tariff of Rs.875/- pertaining to the room which he occupied and also with reference to the investigation done by the department by examining those rooms came to the conclusion on facts that excess amount has been claimed by the petitioner.
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20. Therefore, looking to the above said facts and circumstances of the case on evaluating the factual aspects in the case three authorities i.e., the enquiry officer, the disciplinary authority and the appellate authority have bestowed their attention and appreciated the evidence and come to the same conclusion. In my opinion under Article 226 of the Constitution, this court cannot re-appreciate factual aspects, which are already concluded by the disciplinary authority and appellate authority. There is no materials placed before the court that there was total miscarriage of justice caused to the petitioner on ground that the disciplinary authority or the appellate authority have not at all looked into any evidence on record and came to the conclusion which is bereft of any appreciation of evidence, only in such an eventuality, this court in rare cases can interfere with such orders. But I don't find any such irregularity or illegality committed either by the disciplinary authority or by the appellate authority so as to interfere with reference to the : 17 : factual aspects. Therefore, I don't find any reasons to interfere with the orders of the disciplinary authority and the appellate authority.
21. Now coming to the proportionality of the penalty imposed, as could be seen from the regulation No.4, the minimum major penalty prescribed is at regulation 4 (f) which reads as follows;
"4. Penalties :
The following are the penalties which may be imposed on an officer employee for acts of misconduct or for any other good and sufficient reasons.
a) xxxxxx to
e) xxxxxx
f) Save as provided for in (e) above, reduction to a lower stage in time scale of pay for a specified period with further directions as to whether or not the officer will earn increments of pay during the period of such reduction and whether on expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;"
Compared to the other major penalties, one which was imposed by respondent No.1 is the minimum penalty : 18 : prescribed under the regulation. The authority has no jurisdiction to impose the penalty less than that, when it decide to impose a major penalty.
22. Under the above said facts and circumstances, a lenient view has been already taken by the disciplinary authority and the appellate authority, by imposing minimum major penalty on the delinquent employee. Therefore, that also does not call for any interference at the hands of this court.
23. For the above said reasons, I don't find any strong reasons to interfere with the orders of the disciplinary authority or the appellate authority. Hence the writ petition is devoid of merits, the same is liable to be dismissed, accordingly dismissed.
SD/-
JUDGE E M/ -