IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF AUGUST, 2019 BEFORE THE HON’BLE MR. JUSTICE ARAVIND KUMAR W.P. NO.49971/2018(CS-RES) BETWEEN:
NEERE BAILUR VYAVASAYA SEVA SAHAKARI BANK NIYAMITA, BAILUR – 574 102 KARKALA TALUK, UDUPI DISTRICT REP. BY ITS MANAGER/SECRETARY.
... PETITIONER (BY SRI. MANJUNATHA RAO BHOUNSLE K, ADVOCATE) AND:
1. THE ASSISTANT REGISTRAR OF CO-OPERATIVE SOCIETIES KUNDAPUR SUB-DIVISION KUNDAPUR – 576 201 UDUPI DISTRICT.
2. SMT. SHAKUNTHALA N RAO W/O LATE K. NARASIMHA RAO AGED ABOUT 63 YEARS ‘SUKESHA SADANA’ BAILUR – 574 102 KARKALA TALUK UDUPI DISTRICT.
... RESPONDENTS (BY SMT. KAVITHA H.C, HCGP FOR R-1;
SRI. PRASANNA V.R, ADVOCATE FOR R-2) THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER DATED:27.10.2009 PASSED IN DISPUTE NO.810/2003-04 VIDE ANENXURE-D PASSED BY THE R-1 AND THE ORDER DATED:31.07.2018 PASSED IN APPEAL NO.893 OF 2009 VIDE ANNEXURE-F PASSED BY THE HON'BLE KARNATAKA APPELLATE TRIBUNAL.
THIS PETITION COMING ON FOR ORDERS THIS DAY, THE COURT MADE THE FOLLOWING:
O R D E R Petitioner has called in question order dated 27.10.2009 passed in dispute No.810/03-04 - Annexure-D by first respondent and order dated 31.07.2018 passed by the Karnataka Appellate Tribunal (hereinafter referred to as ‘tribunal’ for short) in Appeal No.893/2009- Annexure-F 2. Second respondent was working as Senior clerk in the petitioner-Bank and on the allegation of she having misappropriated a sum of Rs.84,961/- during the year 2000-2001, imputation of charges came to be issued and domestic enquiry was held. A report came to be submitted on 04.06.2003 by enquiry officer holding that out of 5 charges, 4 charges were proved. For the enquiry report, petitioner issued second show cause notice dated 16.06.2003 to second respondent. On submission of reply, petitioner-Bank, by order dated 27.06.2003 (Annexure-C) terminated the services of second respondent and being aggrieved by the same, she raised a dispute No.810/03-04 before the Assistant Registrar of Co-operative Societies, Kundapura Sub- Division, Kundapura (for short ‘ARCS’), who after considering statement of objections filed by the petitioner – Bank and evaluating the evidence tendered, passed an order dated 27.10.2009 (Annexure-D) by allowing the dispute and awarding backwages including awarding of consequential benefits. Petitioner-Bank filed an appeal before the Karnataka Appellate Tribunal, Bangalore (for short ‘tribunal’) in Appeal No.893/2009 raising several grounds, which came to be dismissed for non- prosecution on 16-07-2014 and Misc.petition No.16/2014 filed by the petitioner – Bank was also dismissed. Said orders were called in question by the petitioner-Bank before this Court in W.P.No.43452/2015 and this Court by order dated 07.01.2016 allowed the writ petition and appeal was restored to its file with a direction to the tribunal to re-consider the appeal on merits and it was also ordered that petitioner-Bank should deposit 50% of backwages by making said condition precedent for hearing the appeal on merits by the tribunal. In the background of above stated facts, appeal was taken up by the tribunal and disposed of by order dated 31.07.2018 (Annexure-F) whereunder appeal filed by the petitioner-Bank came to be dismissed. Hence this writ petition.
3. I have heard the arguments of Sriyuths Manjunatha Rao Bhounsle, learned Advocate appearing for petitioner, Smt.H.C.Kavitha, learned HCGP appearing for respondent-1 and Sri Prasanna V R, learned Advocate appearing for respondent-2 and perused the records.
4. It is the contention of Sri Manjuantha Rao Bhonsale, learned Advocate appearing for petitioner that authorities below grossly erred in not considering the evidence that had been tendered by the Bank in proper perspective and thereby it has resulted in miscarriage in the administration of justice. He would also contend that with regard to charges levelled against second respondent having been proved before the enquiry officer, which was based on sound appreciation of material facts, in the dispute which was raised by second respondent – employee and as such, ARCS could not have sat in appeal over the said findings and such consideration would be alien to service jurisprudence. Hence, he submits that learned ARCS committed an error in allowing the dispute. He would further elaborate his submission by contending that grounds urged before the tribunal which plea was also raised in the dispute to contend same was required to be considered by the tribunal as it was the last fact finding authority and said material available on record did not receive its attention and tribunal ought to have considered the material evidence placed before it by the Bank which had been considered in proper perspective by the enquiry officer and on account of its non-
consideration, it called for interference at the hands of first appellate authority and this exercise having not undertaken by the tribunal, this Court in exercise of supervisory jurisdiction under Article 227 of the Constitution of India is empowered to set right the same also by exercising extraordinary power vested under Article 226 of Constitution of India. Hence, he prays for impugned order being set aside and writ petition being allowed.
5. Per contra, Smt.Kavitha H.C., learned HCGP appearing for respondent-1 would submit that authorities below have passed orders based on sound appreciation of evidence and prays for suitable order being passed.
6. Sri Prasanna V.R., learned Advocate appearing for respondent-2 would support the orders passed by the authorities below and contend that this Court sitting in supervisory jurisdiction ought not to interfere with well reasoned findings recorded by the first fact finding authority as well as findings of appellate authority which has re-appreciated the entire evidence and as such, he prays for dismissal of the petition.
7. Having heard the learned Advocates appearing for parties and on perusal of the records, it requires to be noticed that in all, five charges were leveled against second respondent out of which, four were held to have been proved by the employer against delinquent employee namely, second respondent herein. Charges imputed against second respondent is based on the audit report for the year 2000-01 alleging that she had misappropriated amount of Rs.3,450/-, Rs.21,306/-, Rs.42,077/-, Rs.16,628/- and Rs.1,500/- and in all, Rs.84,961/-. Insofar as said charge which was alleged against second respondent was relating to the period 1999- 2000 and as such, it was held that it would not fall within the purview of domestic enquiry and this finding is not in serious dispute. As such, this Court would not embark upon conducting an enquiry in that regard.
8. Insofar as charge No.1 which was held to be proved in the domestic enquiry and which has been reversed by ARCS – first respondent herein and affirmed by the tribunal relates to alleged payment of Rs.6,900/- by the second respondent twice. As could be seen from the order of the fact finding authority namely, tribunal, payment of Rs.6,900/- was made to M/s.Konkan Gas Company under cheque No.153998 though allegation was made that cash was also paid, oral evidence of the bank Manager discloses that Rs.6,900/- was paid to M/s.Konkan Gas Company under the cheque and Rs.6,900/- was paid to Reliance company on 11.10.2000 in receipt of Gas Lighter and as such, finding of fact has been recorded that said payments are separate and distinct and they relate to different companies and there is no payment made twice.
9. Insofar as charge No.2 relates to loss caused to Bank by second respondent in a sum of Rs.21,306/- by sanctioning loans and accepting fake gold ornaments by pledging them as genuine gold ornaments has also received the attention of the tribunal as well as ARCS to arrive at a conclusion said charge relates to the period five years earlier to 1999-2000 and for this period charge leveled against delinquent employee had already been dropped by the enquiry officer itself. That apart, amount so lent by the petitioner Bank had also been recovered. No doubt, an illegality or irregularity committed would not wipe out the act of a delinquent employee. However, in the instant case, for two reasons namely, (1) that a charge is relating to the period of five years earlier to 1999-2000 and would not fall within the purview of domestic enquiry; and (2) loan borrowed by debtors having been discharged, had swayed in the mind of first respondent – ARCS to exonerate second respondent from the said charge. Said finding is based on sound appreciation of facts.
10. Charge No.3 relates to recovery of lower interest amounting to Rs.42,077/- in respect of loan advanced during the years 1999-2000 and 2000-01 in respect of 56 loan accounts. In this regard, both the authorities below have categorically held that bank had not produced any material to fix the liability solely on the second respondent, but on the other hand, bank manager or other employees of the bank were also entrusted with the work of recovery proceedings during that period and there is no particular document to hold that second respondent was solely entrusted with the work of recovery of interest and she had failed to execute the work so entrusted to her and thereby resulting in dereliction of duty. In fact, bank manager who entered the witness box on behalf of the employer has deposed that there is error in calculation of interest in respect of these 56 loan accounts. In the absence of any positive material or evidence being available on record to arrive at a conclusion that interest amount of Rs.42,077/- had been rightly calculated, it came to be held that charges against second respondent cannot be held to have been proved.
11. Likewise, charge No.4 which related to causing financial loss of Rs.16,228/- to Bank for untimely auctioning of gold ornaments pledged to the Bank was held as not attributable to second respondent, inasmuch as, responsibility lies with the branch manager as well as board of directors and second respondent being only a clerk/employee and she having not been specifically entrusted with the work of conducting auction of pledged gold ornaments, it came to be held that she is not to be solely responsible for untimely conducting of auction and when there was no material on record to establish that she has been directed by an office order to discharge said duty and rightly so. Charge leveled against second respondent in this regard came to be negatived in the dispute raised before first respondent which has been affirmed by the tribunal also.
12. Insofar as fifth and final charge relating to second respondent having not deposited a sum of Rs.3000/- or had not taken into consideration amount of Rs.3000/- deposited on 08.11.2000, it has been held by both the authorities that said amount had been received by the cashier and receipt had been given to the depositor as per Ex.P-77B which reflected said amount had been deposited with the Bank. As such, question of causing financial loss to the Bank did not arise. These material evidence available on record has been considered by ARCS and re-appreciated by the tribunal and said findings does not suffer from any error namely, there has been neither erroneous appreciation of available evidence or non-appreciation of evidence on record.
13. Apart from all these facts, yet another fact which cannot go unnoticed is, for recovery of alleged financial loss caused to the petitioner – Bank by second respondent, surcharge proceedings was initiated against second respondent and in the said proceedings, similar claim having been raised by the Bank had also been examined and held that none of the charges leveled against second respondent are proved and as such, question of proceeding against second respondent to recover the alleged financial loss caused to petitioner - Bank would not arise. In fact, surcharge proceedings having come to an end by dropping the proceedings against second respondent by the Bank which had reached finality and it cannot be gain said by the Bank in these collateral proceedings, charges are to be held as proved on the ground that there has been erroneous appreciation of evidence or evidence available on record has not been considered or appreciated by the authorities below.
14. For the myriad reasons aforestated, this Court finds there are no ground to entertain this writ petition. Hence, writ petition stands dismissed.
No order as to costs.
*sp SD/- JUDGE