IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 8TH DAY OF NOVEMBER 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON'BLE MR. JUSTICE ASHOK S. KINAGI WRIT APPEAL NO.88 OF 2012 (S-DIS) BETWEEN:
SRI. G. SRINIVASA MURTHY SON OF LATE B V GOPAL AGED ABOUT 59 YEARS EARLIER WORKING AS MANAGER AN OFFICER IN MIDDLE MANAGEMENT GRADE SCALE II AT CANARA BANK INFANTRY ROAD BRANCH BENGALURU SINCE DISMISSED FROM SERVICE AND RESIDING AT No. 3992, OLD 7TH CROSS NEW I CROSS, GAYATHRINAGAR BENGALURU-560 021.
SINCE DECEASED REPRESENTED BY HIS LEGAL REPRESENTATIVES 1(A) AMARAVENI.C.M WIFE OF LATE G.SRINIVASA MURTHY AGED ABOUT 57 YEARS #3992, 2ND A CROSS, B BLOCK SUBRAMANYANAGARA BENGALURU-560 021.
1(B) MADHAVI.S WIFE OF UMESHA KUMAR.N.S DAUGHTER OF LATE G.SRINIVASA MURTHY AGED ABOUT 36 YEARS #31, 3RD CROSS, SURVEY NO.122 BANASHANKARI 3RD STAGE KATHIRGUPPE BENGALURU-560 070.
1(C) SIDDHARTH.S SON OF LATE G.SRINIVASA MURTHY AGED ABOUT 29 YEARS #3992, 2ND A CROSS, B BLOCK SUBRAMANYANAGARA BENGALURU-560 021.
….APPELLANTS (BY SRI. ANANDARAMA K., ADVOCATE) AND:
CANARA BANK A BODY CONSTITUTED UNDER THE BANKING COMPANIES (ACQUISITION AND TRANSFER OF UNDERTAKINGS) ACT, 1970 REPRESENTED BY ITS EXECUTIVE DIRECTOR, INDUSTRIAL RELATIONS SECTION HEAD OFFICE, NO.112, J.C. ROAD BENGALURU-560 002.
….RESPONDENT (BY SMT. S R ANURADHA, ADVOCATE (ABSENT)) THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER PASSED IN THE WRIT PETITION No. 6043 OF 2007(S-DIS) DATED 30.11.2011.
THIS WRIT APPEAL HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 23.10.2019, COMING ON FOR PRONOUNCEMENT THIS DAY, ASHOK S. KINAGI J., DELIVERED THE FOLLOWING:
JUDGMENT The appellant herein is the petitioner and respondent is the respondent in the writ petition. The parties are referred as per their rank in the writ petition.
2. The brief facts of the case are as under:
The petitioner was working with the respondent-Bank and had rendered 31 years of unblemished service. He was transferred to Chakavelu Branch in the year 1997, and was directed to take charge on in-charge basis, since it was intended to be a transitory arrangement. He was continued there till the year 2003, by which time he was transferred to Bengaluru. When the petitioner was working in Infantry Road branch, he was kept under suspension by order dated 31.10.2003, and disciplinary proceedings were initiated by issuance of charge-sheet. The charges leveled against the petitioner are to the effect that he had sanctioned certain credit facilities to certain borrowers, namely Sri. Lakshmanna and his daughter-in-law and to Sri. P.L.Anjinappa. It was found that there were gross irregularities committed by the petitioner in serving those borrowers’ account. The petitioner replied to the charge-sheet and the same was not accepted by the authorities. The inquiry officer was appointed and the petitioner participated in the inquiry proceedings. The inquiry officer came to a conclusion that the charges leveled against the petitioner are proved and submitted a report. The Disciplinary Authority sought for a reply to the report submitted by the inquiry officer. The Disciplinary Authority, after examining the report of the inquiry officer and reply submitted by the petitioner, passed an order of punishment of “dismissal which shall ordinarily be a disqualification for future employment” vide order dated 28.12.2005.
The petitioner aggrieved by the order of punishment, preferred an appeal before the Appellate Authority. The Appellate Authority, after re-appreciation of the entire records, confirmed the order of punishment vide order dated 05.01.2007.
The petitioner challenged the order of punishment and the order of the Appellate Authority in Writ Petition No.6043 of 2007 before this court. The learned Single Judge, after considering the findings of the inquiry officer and the order of the Appellate Authority, dismissed the writ petition on 30.11.2011.
The petitioner, aggrieved by the order dated 30.11.2011, passed by the learned Single Judge in Writ Petition No.6043 of 2007, has filed the present writ appeal.
3. Heard the arguments of learned counsel for the petitioner. The learned counsel for the respondent absent.
4. The only contention of the petitioner is that he was not afforded any opportunity to cross- examine MW-3 who was one of the complainants.
5. The said contention cannot be accepted for the simple reason that on 08.12.2004, totally three witnesses i.e., A.R.N.Gupta was examined as MW-1, Lakshmanna was examined as MW-2 and P.L.Anjanappa was examined as MW-3. MWs.1 and 2 were fully cross-examined by the petitioner, but MW-3 was partly cross-examined and further cross- examination was deferred for want of time. That on three occasions ie., on 08.12.2004, 03.02.2005 and 07.03.2005, MW-3 was present, but the proceeding was adjourned on the request of the petitioner. The petitioner was afforded sufficient opportunity by the inquiry officer to cross-examine MW-3, but the petitioner did not utilize the opportunity. Hence the inquiry officer has discharged MW-3 from attending further enquiries.
6. The respondent-bank filed statement of objections. In the statement of objections, the respondent-bank pleaded regarding past history of the petitioner, that he was issued with two charge sheets and a minor penalty proceeding initiated for various misconducts committed by the petitioner and that appropriate punishment was imposed on the petitioner in the MPP. The other two charge- sheets were not proceeded with in view of his cessation from the service of bank with effect from 30.12.2005, due to the punishment of “dismissal” imposed upon him. The petitioner had a past history of committing breach of duty. The petitioner was not diligent in discharging his duty. The very act of acting beyond the authority and that too a course of conduct spread over a sufficiently long period and involving innumerable instances, is by itself a misconduct. Such acts, if permitted, may bring in profit in some cases, but they may also lead to huge loss. Such adventures are not given to the employees of banks, which deals with the public funds. Thus, the acts committed by the petitioner constitute misconduct. The Disciplinary Authority has rightly dismissed the petitioner from service.
7. The finding of facts reached by the Disciplinary Authority, Appellate Authority and also by the learned Single Judge, as a result of the appreciation of evidence, are not reopened or questioned in the writ proceedings.
8. An employee/officer of a bank holds a position of trust and confidence, and if the employee commits breach of trust, then there will be loss of confidence and trust. In support of the said contention we would like to rely upon the judgment reported in the case of KANHAIYALAL AGRAWAL AND OTHERS VS. FACTORY MANAGER, GWALIOR SUGAR COMPANY LIMITED [2002 SCC (L&S) 257], wherein Hon'ble Supreme Court has held as under:
“9. Substantial contention on the merits of the case by the employer in these appeals is that the finding of loss of confidence in the employee by the labour court has been reversed in appeal by the Industrial Court on unreasonable grounds. What must be pleaded and proved to invoke the aforesaid principle is that (i) the workman is holding a position of trust and confidence; (ii) by abusing such position, he commits acts which results in forfeiting the same; and (iii) to continue him in service would be embarrassing and inconvenient to the employer or would be detrimental to the discipline or security of the establishment. All these three aspects must be present to refuse reinstatement on the ground of loss of confidence. Loss of confidence cannot be subjective based upon the mind of the Management. Objective facts which would lead to a definite inference of apprehension in the mind of the Management regarding trustworthiness or reliability of the employee must be alleged and proved. Else, the right of reinstatement ordinarily available to the employee will be lost.
10. Tested on these principles on the charges against the workmen concerned on the proved facts whether there was any loss of confidence so far as the workmen were concerned, the inferences have been appropriately drawn.”
9. In the instant case, the position held by the petitioner is one of faith and trust and he is guilty of breach of trust, acted beyond authority amounts to penalty.
10. The Hon’ble Apex Court, in the case of DISCIPLINARY AUTHORITY - CUM – REGIONAL MANAGER AND Others vs. Nikunja Bihari Patnaik [(1996) 9 SCC 69], has held as under:
“8. We must mention that Shri V.A.Mohta, the learned counsel for the respondent, stated fairly before us that it is not possible for him to sustain the reasoning and approach of the High Court in this case. His only submission was that having regard to the age of the respondent [37 years] and the facts and circumstances of the case, this Court may substitute the punishment awarded to the respondent by a lesser punishment. The learned counsel suggested that any punishment other than dismissal may be imposed by this Court. We considered this request with the care it deserves, but we regret that we are unable to accede to it. The learned counsel for the Bank, Shri V.R.Reddy, Additional Solicitor General, also stated, on instructions of the Bank, that it is not possible for the Bank to accommodate the respondent in its service in view of his conduct.”
The petitioner has acted beyond authority, which amounts to misconduct as held by the Apex Court in the aforesaid judgment.
11. Petitioner’s reinstatement would embarrass and cause inconvenience to the bank. There will be apprehension in the mind of management regarding trustworthiness or reliability of the employee. Considering the above said judgment, we hold that the petitioner does not deserve any sympathy for having committed breach of trust and the order of punishment imposed on him does not require any interference. The order of removal from service on such charges cannot be said to be disproportionate to the misconduct. In this regard, we would like to place our reliance upon the Constitution Bench judgments in the case of STATE OF ORISSA AND OTHERS VS. BIDYA BHUSHAN MOHAPATRA [AIR 1963 SC 779] and in the case of P.
D. Agarwal vs. State Bank of India and Others [(2006) 8 SCC 779] wherein it is held that in view of principle of severability of charges, the order of punishment will not warrant interference in exercise of the power of judicial review vested with the High Court under Article 226 of the Constitution of India.
12. The petitioner has not pointed out any ground or error of law or fact to interfere in the impugned order. In this view of the matter, we do not find any ground to interfere with the order passed by the learned Single Judge in Writ Petition No.6043 of 2007 dated 30.11.2011.
13. In our considered view, the learned Single Judge was justified in not interfering with the order of punishment awarded by the Disciplinary Authority under Article 226 of the Constitution of India. Hence, we proceed to pass the following:
Order The writ appeal is dismissed without costs.
Sd/- Sd/-
JUDGE JUDGE RD