IN THE HIGH COURT OF KARNATAKA, BENGALURU DATED THIS THE 20TH DAY OF NOVEMBER, 2019 BEFORE THE HON'BLE MR. JUSTICE KRISHNA S.DIXIT WRIT PETITION NO. 23248 OF 2016 (S-RES) BETWEEN:
SRI K R SHESHUPRASAD S/O K.RAJARAM IYENGAR, AGED ABOUT 55 YEARS, RESIDIG AT: NO.833/L, 9TH MAIN, 5TH CROSS, RPC LAYOUT, BENGALURU-560104. (BY SRI. M R SHAILENDRA, ADVOCATE) AND 1. PUNJAB NATIONAL BANK, … PETITIONER NO.7, BHIKAJI CAMA PLACE, HEAD OFFICE, NEW DELHI-110066 REPRESENTED BY ITS MANAGING DIRECTOR.
2. THE EXECUTIVE DIRECTOR & REVIEWING AUTHORITY, PUNJAB NATIONAL BANK, HEAD OFFICE, NO.7, BHIKAJI CAMA PLACE, NEW DELHI-110066.
3. THE GENEAL MANAGER & APPELLATE AUTHORITY, PUNJAB NATIONAL BANK, PERSONNEL ADMINSITRATION DIVISION, NO.7, BHIKAJI CAMA PLACE, NEW DELHI-110066.
4. THE DEPUTY GENERAL MANAGER & DISCIPLINARY AUTHORITY, PUNJAB NATIONAL BANK, FGM OFFICE - 46069, ROYAPETTAH HIGH ROAD, CHENNAI-600014.
… RESPONDENTS (BY SRI. SYED KHALEEF ALI, FOR M/S SUNDERSWAMY & RAMDAS, ADVOCATE FOR R1 & 2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ORDERS DATED 13.10.2015 PASSED BY THE REVIEWING AUTHORITY – R-2 (ANNEX-M) THE ORDER DATED 30.06.2015 PASSED BY THE APPELLATE AUTHORITY – THE R-3 (ANNEX-K) AND THE ORDER DATED 02.09.2014 PASSED BY THE DISCIPLINARY AUTHORITY – THE –R-4 (ANNEX-I), AS BEING ARBITRARY AND ILLEGAL AND VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION OF INDIA, WITH A FURTHER DIRECTION DIRECTING THE RESPONDENTS TO REINSTATE THE PETITIONER INTO SERVICE AND GRANT ALL CONSEQUENTIAL BENEFITS, INCLUDING MONETARY BENEFITS.
THIS PETITION HAVING BEEN HEARD AND RESERVED FOR ORDER, THIS DAY, THE COURT PRONOUNCED THE FOLLOWING:
ORDER Petitioner, the then Senior Grade Manager in Punjab National Bank, Tumkur Branch, is grieving before the writ court against the impugned order of dismissal from service, the departmental appeal and the Review against the same having been negatived. After service of notice, the respondents having entered appearance through their Panel Counsel, resist the Writ Petition.
2. FACTS IN BRIEF:
(a) During the period between 14.06.2010 and 20.07.2013, petitioner was working as the Branch head and the Senior Manager of the respondent-Bank at Tumkur; he having been suspended vide order dated 28.09.2013 was served with a charge sheet on 04.01.2014, to which he filed his reply denying all the eight charges;
(b) in a time bound disciplinary enquiry, the Enquiry Officer found the petitioner guilty of four charges; three charges were held to be not proved and one charge was taken to be partly proved; the Disciplinary Authority differing with the Enquiry Officer held those two charges also proved after issuing the Proposal Notice dated 04.07.2014 and after considering petitioner’s representation dated 16.07.2014;
(c) the Disciplinary Authority vide Penalty Order dated 02.09.2014 dismissed the petitioner from service; the Appellate Authority vide order dated 30.06.2015 dismissed petitioner’s appeal; petitioner’s Review Petition also met the same fate on 13.10.2015; thus, the Disciplinary Authority, the Appellate Authority and the Reviewing Authority recorded the concurrent findings as to the guilt of the petitioner and the resultant penalty levied on him; aggrieved thereby, petitioner is before this Court.
3. Having heard the learned counsel for the parties and having perused the Petition Papers, this Court declines to grant indulgence in the matter for the following reasons:
(a) Banking business is a matter of special branch of knowledge; whether such a business has been carried on by the Branch Manager of the Bank concerned is ordinarily within the domain of the Management of the Bank; the Enquiry Officer in a duly constituted disciplinary enquiry has held that out of the eight charges, four were proved and one was partly proved, and three others were not proved; it is not the case of the petitioner that he did not have a reasonable opportunity of establishing his side of the case, although a stray ground sans any substantiation to the contrary has been taken up in the pleadings; the Disciplinary Authority, the Appellate Authority and the Reviewing Authority in their special knowledge having considered petitioner’s contention, have rejected the same by reasoned opinions that are fact- based; this Court exercising extraordinary jurisdiction u/a 226 & 227 of the Constitution of India cannot run a race of opinions with them; the Apex Court in the case of UOI Vs. P GUNASEKARAN, AIR 2015 SC 545, has observed that the High Court is not and cannot act as a second Court of first appeal, whilst exercising Writ jurisdiction and therefore, it shall not venture into reappreciation of the evidence, as rightly contended by the counsel for the respondents;
(b) the Disciplinary Authority intending to disagree with two unproved charges having issued a Proposal Notice dated 04.07.2014 has reversed the findings relating thereto after considering petitioner’s representation dated 16.07.2014 and held those charges as proved on the basis of material which is part of the record of enquiry proceedings; no new material is shown to have been taken into account whilst reversing these findings; the contention that the petitioner was not given a personal hearing despite demand is legally untenable inasmuch as in terms of decision of the Apex Court vide STATE BANK OF INDIA Vs. V.K.P. NARAYANA KUTTY 2003 (2) SCC 449, the petitioner was given an opportunity of making representation against the proposal, which he did and after consideration of the same, the Disciplinary Authority reversed two of the findings of the Enquiry Officer; this procedure cannot be found fault with; the representation of the petitioner is very comprehensive and a perusal thereof does not justify his insistence for a personal hearing;
(c) even if the above two findings of the Disciplinary Authority qua these two charges recorded in variance with the Enquiry Officer are taken to be bad, that per se would not absolve the petitioner from rest of the grave charges, that have been held to be established by the Enquiry Officer and concurred with by the Disciplinary Authority, Appellate Authority and the Reviewing Authority on the basis of material that is part of the record of enquiry proceedings; that itself would justify the penalty order whereby the petitioner is dismissed from service; the contention that the petitioner ought to have been granted a personal hearing, is not supported by the decision cited supra;
(d) the argument of the petitioner that the Disciplinary Authority had made up it’s mind that the petitioner was guilty, long before initiation of the disciplinary proceedings and therefore, the proceedings are vitiated, is not substantiated by a mere fact that a bit earlier thereto, the complaints to the CBI were lodged; while lodging the FIR/complaint, a prima facie opinion is formed by the complainant, may be true; that opinion cannot be equated to a conclusion by any stretch of imagination inasmuch as even such an opinion is a pre-
condition for initiating the disciplinary enquiry; even otherwise, such a conclusion is as to the matter being worthy of investigation by the CBI and nothing beyond that; therefore, what version the Management projected before the CBI is a matter for investigation which is undertaken as per the protocol of the Bank; that per se does not justify the allegation of the petitioner that the Management was already biased and accordingly, it got the Enquiry Report tailor made; this apart, it is submitted at the Bar that even the CBI after investigation, has filed the charge sheet wherein petitioner happens to be one of the accused persons;
(e) the submission of the petitioner that the Credit Manager Sri.T.N.N. Nayak was responsible for the lapses that are attributed to him after retirement of Mr.Nayak before the commencement of the enquiry again is too farfetched a view; so also his contention that the Panel Advocate Sri.B.S.N. Bhat was solely responsible; as head of the Branch, the Senior Grade Manager is responsible for the lapses even of his deputees, otherwise also, as a pilot of the Ship is; that is how the vicarious responsibility in a hierarchical structure of administration operates in any given system, subject to all just exceptions into which case of the petitioner does not fit; this apart, the evidentiary material produced in the enquiry prima facie establishes overt acts of the petitioner that are apparently culpable; there is enough material to substantiate the charges leveled against him; petitioner’s contention to the contrary is more in the nature of alibi, insufficient to rebut the allegations; the grievance that the Credit Manager Sri.T.N.N. Nayak also happened to be one of the accused persons in the CBI criminal case and despite that he was not implicated in the disciplinary enquiry, is beside the point; an employee charged with a misconduct cannot escape the liability otherwise proved against him, on the ground that an accomplice is left to go free;
(f) the contention that in terms of Regulations, the material which the Enquiry Officer wanted to bank upon for holding the subject charges proved ought to have been put to the petitioner by the Enquiry Officer as has been done in criminal cases u/s 313 of Cr.P.C is difficult to countenance; no rule or ruling is cited in support of such a contention; there is a lot of difference between a disciplinary proceeding and a criminal trial, in terms of procedure & practice and their nature & object; even if it is assumed that some regulation prescribed such a procedure, the arguable violation thereof per se is not a ground for indulgence of writ court in the absence of demonstrable prejudice caused by the alleged breach thereof; petitioner’s reply dated 28.02.2014, written defense dated 24.05.2014, his representation dated 16.07.2014 against the Disciplinary Authority’s Proposal Notice dated 04.07.2014 all go to show that he had sufficient opportunity to meet the case put against him; in addition to this, he had taken up a lengthy appeal and Review Petition as well; thus, the procedure adopted by the respondents at various stages being abundantly fair and reasonable, the impugned orders cannot be faltered;
(g) the contention that some of the charges being vague, no disciplinary enquiry could have been held against the petitioner, is difficult to accept; regardless of the alleged vagueness, both the petitioner and the Management have understood the pith & substance of the charges and accordingly they have drawn the battle lines in the course of enquiry, and after; similarly, the two documents concerning charge 1.5, namely the office order/duty sheet dated 30.09.2010 and staff accountability Circular IAD 69/2012 are not shown to have been violated in the course of enquiry; even otherwise, these instruments cannot be construed as mandatory statutes whose arguable violation per se would invalidate the entire disciplinary proceedings or the penalty order; they are more in the nature of guidelines for the internal working of the Banking business; this apart, it is a settled position in service jurisprudence that non-supply of documents on which the Enquiry Officer does not rely during the course of enquiry for substantiating the charges, would not create any prejudice to the delinquent official vide SYNDICATE BANK Vs. VENKATESH GURURAO KURATI, AIR 2006 SC 3542, subject to all exceptions, as rightly contended by the learned counsel for the respondents;
(h) the contention of the petitioner that regard being had to the nature of charges proved against him, the truly guilty person namely, Mr. Nayak having been left free and no actual loss having been suffered by the Bank, the penalty of dismissal from service is too much on the harsher side enough to shake the conscience of the Court again is bit difficult to countenance; evidentiary material shows that the respondent-Bank has lost several crores of rupees which are a public money; the contention that the Management has given different figures of loss at different places/stages does not absolve the petitioner from the charges proved against him; the respondents in their Statement of Objections at para 7 have given full material particulars of the bank accounts of the loanee’s concerned and the losses suffered because of the lapse attributable to the petitioner; the Apex Court in the case of DISCIPLINARY AUTHORITY CUM REGIONAL MANAGER VS. NIKUNJA BIHARI PATNAIK, 1996 (9) SCC 69, has observed that to levy the penalty of dismissal of a Bank manager, proof of actual loss is not a sine qua non, if charges are otherwise proved; it is also a settled legal position vide STATE BANK OF INDIA Vs. ATINDRA NATH BHATTACHARYYA, AIR 2019 SC 4777 that where the financial irregularities resulting into huge losses are established against the responsible Bank Manager, the removal from service is imminently justified; in such matters, the writ court cannot substitute it’s views for that of the disciplinary authority;
(i) the last contention of the petitioner that if the challenge to the impugned orders is negatived, by the dismissal of this writ petition, the same is likely to be pressed into service by the Management in the CBI criminal case to the disadvantage of the petitioner, needs to be taken cognizance of; what is held in a disciplinary proceeding is on the basis of preponderance of probability, whereas, the criminal trial is held on the principle of strict proof; the nature and object of these proceedings are much different from each other; that being the position, the petitioner need not have the apprehension that the impugned orders and the judgment of this court would be used in the subject CBI cases especially when they are of lesser significance in the criminal trial in which the charges need to be proved on independent evidence; these observations take care of petitioner’s apprehension.
In the above circumstances, the Writ Petition being devoid of merits, is dismissed.
No costs.
Sd/- JUDGE Snb/