Karnataka High Court
Rajappa P vs The General Manager on 28 May, 2012
Author: H N Nagamohan Das
Bench: H.N. Nagamohan Das
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
TH
28
DATED THIS THE DAY OF MAY, 2012
BEFORE
THE HON'BLE MR. JUSTICE H.N. NAGAMOHAN DAS
WRIT PETITION No. 32267/2009 (S-DE)
BETWEEN:
Sri. RAJAPPA P
S/O. PARASAPPA
AGED 42 YEARS
SRINIVASA
KAMBALAKODI HOUSE
NEAR MAHALINGESHWARA
TEMPLE, PUTTUR 574201
-
D.K. DIST. ... PETITIONER
(By Sri. M V CHARATI, ADV.)
AND:
1. THE GENERAL MANAGER
PERSONAL ADMINISTRATION
DIVISION, CORPORATION BANK
HEAD OFFICE, MANGALADEVI
TEMPLE ROAD, P.B. No.88
MANGALORE 575 001.
-
2. THE DEPUTY GENERAL MANAGER
APPELLATE AUTHORITY
PERSONAL ADMINSITRATION
DIVISION. CORPORATION BANK
HEAD OFFICE MANGALADEVI
TEMPLE ROAD P B No 88
MANGALORE -575 001.
3. THE ASST. GENERAL MANAGER
DISCIPLINARY AUTHORITY
PERSONAL ADMINSITRATION
DIVISION, CORPORATION BANK
HEAD OFFICE, MANGALADEVI
TEMPLE ROAD, P.B. No. 88
MANGALORE 575 001.
- ... RESPONDENTS
(By Sri. ABHILASH RAJU &
Miss. SNEHA NAGRAJ, ADVS., FOR
MIS. SUNDARASWAMY & RAMDAS, ADVS., FOR R-2
R-I & 3 SD.)
THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA WITH A
PRAYER TO QUASH THE IMPUGNED ORDER DATED
3 1.12.2008 PASSED BY THE RESPONDENT AND ETC.
THIS WRIT PETITION COMING ON FOR HEARING
THIS DAY, THE COURT PASSED THE FOLLOWING;
ORDER
In this writ petition the petitioner has prayed for a writ in the nature of certiorari to quash the order dated 31 .12.2008 -- Annexure 3 E and the order dated 31.08.2009 -- Annexure H compulsorily retiring the petitioner from service.
2. Petitioner was appointed as Agricultural Field Officer on 18.01.1999. Subsequently in the year 2002 probationary period of the petitioner was declared. In the year 2007 the petitioner was working as Agricultural Field Officer in Puttur branch of respondent Bank. For certain irregularities and misappropriations committed by the petitioner articles of charges were issued as per Annexure B dated 28.12.2007 alleging as many as six charges. Since the explanation of the petitioner was not satisfactory enquiry was held and the impugned order of penalty came to be passed compulsorily retiring the petitioner from service. Even the appeal filed by the petitioner came to be dismissed. Hence, this writ petition.
3. Heard arguments on both the side and perused the entire writ papers.
/1 7 / 4
4. Out of six charges levelled against the petitioner the Enquiry officer held charge Nos. 1,3,4 and 5 as proved. Charge No. 2 and 6 as not proved. The charges proved are as under:
1. That, while working as such, on 10.04.2007, with a malafide intention of availing undue credit facility, you unauthorisedly and in the absence of adequate security inflated the drawing power and limit of your ECC account No. 2/06 from Rs.20,000I- to Rs.28,000I-
respectively. That, during the period between 11.04.2007 and 19.05.2007, you further inflatedlcaused to be inflated the drawing power and the limited of your said account upto Rs.80,000I- and Rs.70,000I- respectively, unauthorisedly and in the absence of adequate security. That, on 24.05.2007, you caused to further inflate the drawing power of your said account to Rs.80,000/- in the absence of adequate security. That, you utilised the limit to the fullest 5 extent of inflated limit under the said account, the present liability being Rs.81, 633.45.
3. That, on 10.04.2007, you claimedlreceived an amount of Rs. 1,5001- towards medical aid expenses for the year 2007, in excess of your eligibility. That you reimbursed the said excess amount only on 29.08.2007 when pointed out during the inspection of the Branch, thus you unauthorisedly utilised the Bank's funds during the said period, as aforesaid.
4. That an amount of Rs.9,8841- being the excess amount drawn towards TA was refunded by you only on 11.06.2007, disregarding the directions of the Zonal Office, Udupi, vide orders dated 15.02.2007, received by you on 19.02.2007, to refund the said amount immediately.
5. that, on 17.02.2007, you unauthorisedly, i.e., in the absence of mandate from the account holder and also without preparing required vouchers, transferred an I 6 amount of Rs.6,000/- from SB account No. 12179 of Smt. Vijayalakshmi to your SB account No. 12162 thereby misused your official position for personal gain.
5. The Supreme Court in the case of State of U.P. Vs. Manmohannath Sinha (2009) 2 SCC (L&S) 435 held as under:
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a court of appeal. The 7 approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court."
6. Keeping in view the dictum of the Supreme Court in the above decision it is necessary to find out any procedural irregularities in the present case. Though several grounds are urged in the writ petition relating to procedural irregularities I find no substance in them. Learned counsel for the petitioner has not shown to me the procedural irregularities which goes to the root of the matter so that this Court can set aside the enquiry. This Court cannot sit as an Appellate Court in the matter of assessing the evidence already on record. I find no procedural irregularities committed by the Enquiry officer in the matter of conducting the enquiry. 8
7. It is necessary to examine the proportionality of penalty. The Supreme Court in the case of Kailashnath Gupta Vs. Enquiry officer, Allahabad Bank and others, 2003 AIR SCW 1813 held as under:
"11. In the background or what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-reconsideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject matter of his removal from service. The stand of the appellant as indicated above is that though small advances may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money ('I 9 or had committed any act of fraud. If any loss has been caused tot he bank (which he quantifies at about Rs.46,000/-) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service.
8. Keeping the above principle in mind it is necessary to examine the proportionality of penalty in this case. It is not in dispute that from 1999 till 2007 the petitioner worked as Agricultural Field Officer in the respondent Bank. This past history of the petitioner is unblemished. No material is placed on record to show that between 1999 and 2007 the petitioner was involved in any irregularities. It is an admitted fact that petitioner worked as Agricultural Field Officer. From the evidence on record it is seen that first charge relates to inflation and the drawing power of the petitioner in respect of his two 10 accounts. Unilaterally it is not possible for the account holder to inflate his account unless and until the bank manager permits the same. In the instant case the respondent Bank has not examined the bank manager of the relevant period. Therefore the explanation of petitioner in respect of llrst charge. In respect of charge Nos. 3 and 4 the petitioner has refunded the amount immediately on pointing out the deficiency. In respect of charge No. 5 there is transfer of a sum of Rs.6,000I- without proper voucher from the account holder to the personal account of the petitioner. It is not in dispute that the account holder Smt. Vijayalakshmi was the landlord of the petitioner. The explanation of the petitioner that the account holder orally instructed the Bank Manager cannot be ruled out. This transfer of amount from the account of account holder Srnt Vijaylakshmi to the account of petitioner is done by the bank officials. This cannot be done unilaterally by the petitioner. In the facts and circumstances the explanation of petitioner is to be jJ 'I S a accepted. Having regard to the age, absence of past history, no loss to the Bank and no illegal favour to a third party and also having regard to the gravity of charge I am of the considered opinion that the penalty of compulsory retirement is on higher side. But at the same time petitioner against whom certain charges are proved shall not go unpunished. In order to balance the interest of petitioner and the respondent Bank I am of the opinion that the impugned order of penalty of compulsory retirement is to be modified.
9. From the date of order of compulsory retirement on 31.08.2009 till today the petitioner has not worked in the respondent Bank. Absolutely there is no contribution by the petitioner from the year 2009. Grant of backwages is not a matter of right In the facts and circumstances of this case I am of the considered opinion that the petitioner is not entitled for backwages. Petitioner contends that heisagedabout42yearsandheisthesoleeamingmemberofthe 12 family. In the circumstances the petitioner is entitled for reinstatement.
10. For the reasons stated above. the following;
ORDER
i. Writ petition is partly allowed
ii. The impugned order of penalty dated 31.08.2009 is
hereby modified withholding three increments with cumulative effect in place of compulsory retirement. iii. Respondent Bank to reinstate the petitioner into service without backwages. The continuity of service and consequential benefits are only for the purpose of extending retrial benefits. Ordered accordingly.
sd-I LRS/290520 I 2.