IN THE HIGH COURT OF KARNATAKA AT BENGALURU ON THE 12TH DAY OF APRIL, 2019 BEFORE THE HON'BLE MR. JUSTICE RAVI MALIMATH AND THE HON’BLE MR. JUSTICE MOHAMMAD NAWAZ WRIT APPEAL NO.5426 OF 2017 [L-RES] BETWEEN:
SRI. S.G. HIREMANI, AGED ABOUT 60 YEARS, SON OF SRI. GURAPPA, EARLIER WORKING AS CLERK IN CANARA BANK, PRESENTLY RESIDING AT NO.75, MADIVALA EXTENSION, BENGALURU-560 068. ... APPELLANT [BY SRI.V.S. NAIK, ADVOCATE] AND CANARA BANK, A BODY CONSTITUTED UNDER THE BANKING COMPANIES, (ACQUISITION & TRANSFER OF UNDERTAKINGS)ACT, 1970, REPRESENTED BY ITS, DEPUTY GENERAL MANAGER, STAFF SECTION (WORKMAN), CIRCLE OFFICE, BANGALORE-560 001. ... RESPONDENT [BY SRI. P. UDAYA SHANKAR RAI FOR SRI. SIDDESWARA, ADVOCATES] THIS WRIT APPEAL FILED UNDER SECTION 4 OF THE KARNATAKA HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED 21.11.2016 PASSED IN THE WRIT PETITION 16822 OF 2008.
***** THIS WRIT APPEAL COMING ON FOR ADMISSION, THIS DAY MOHAMMAD NAWAZ, J., DELIVERED THE FOLLOWING:
JUDGMENT Assailing the order passed by the learned single judge in W.P. No.16822 of 2008 (L-Res) dated 21.11.2016, the petitioner therein has preferred this appeal.
2. We have heard the learned counsel appearing for both the parties.
3. It is averred that the appellant herein joined the services of the respondent-Canara Bank (‘the bank’ for short) as a workman on 11.12.1986 in the clerical cadre. For certain acts of alleged misconduct, a case was registered by the CBI against the appellant and another Sri. R. Rangaraju, on the complaint made by the respondent-Bank. CBI filed charge sheet in C.C. No.58/1987. Departmental enquiry was initiated by issuance of charge sheet dated 10.07.1987. On 06.07.1989, the Inquiry Officer submitted his report, holding that the charges are proved against the appellant and proposed punishment of dismissal from service. The Disciplinary Authority by an order dated 17.08.1989 proceeded to impose penalty of dismissal from service on the appellant.
4. Aggrieved by the above said order passed by the Disciplinary Authority, the appellant preferred an appeal before the Appellate Authority, which came to be rejected. The appellant approached the jurisdictional conciliation officer by raising an industrial dispute. Upon failure of conciliation, the Central Government referred the dispute to the Central Government Industrial Tribunal- cum-Labour Court, which was registered as C.R. No.11/1993, for adjudication as to ‘whether the action taken by the management of Canara Bank in dismissing Sri. S.G. Hiremani, clerk from service with effect from 17.08.1989 is justifiable. If not, to what relief he is entitled?’ The Tribunal framed the additional issue as to ‘whether the second party prove that the domestic enquiry conducted against the first party was in accordance with settled principles of law, standing orders and principles of natural justice?’ The Tribunal on 22.03.2001, proceeded to pass an award and rejected the reference holding that the management is justified in dismissing the first party from service with effect from 17.08.1989. The aforesaid order was challenged by the appellant by filing the writ petition and the learned Single Judge vide order dated 21.11.2016 rejected the writ petition, thereby confirming the award passed by the Tribunal.
5. The contentions raised by the learned counsel for the appellant are that the Disciplinary Authority of the Bank grossly erred in initiating disciplinary proceedings in respect of the very same charge which was the subject matter of criminal trial. Though the appellant workman was convicted by the Trial Court, he was subsequently acquitted of the charge, hence the order of dismissal is illegal and unjustified. The writ petition is filed after the criminal appeal filed by the appellant-workman came to be allowed, as he was waiting for the decision in the said appeal. Hence, the learned single judge erred in holding that there is delay in filing the writ petition. The learned single judge has failed to independently examine whether the impugned award suffers from any infirmity. There is no proper application of mind on the part of the Tribunal while adjudicating the dispute referred to it and hence the order impugned is erroneous and cannot be sustained.
6. Per contra, the learned counsel appearing for the respondent would justify the impugned order passed by the Tribunal, which is confirmed by the learned single judge and seeks to dismiss the writ appeal.
7. The petitioner was issued with two charge sheets while he was in service of the bank. According to the charge sheet dated 10.07.1987, while the appellant was working in the Accounts Section of the Bank, during the period 12.09.1983 to 27.10.1986, he opened an S.B. Account in the name of Sri. Gopala Narahari on 27.03.1985 at State Bank of India, Shivajinagar Branch, Bangalore. The account was introduced by one Sri. Rangaraju. A Cheque book was issued to him and subsequently he issued two cheques for Rs.40,000/- and Rs.20,000/- respectively to Sri. Rangaraju. The cheque for Rs.40,000/- was deposited by Sri. Rangaraju in the S.B.
Account opened by him in his own name at Canara Bank, Ice House Branch, Madras on 30.03.1985 and cheque for Rs.20,000/- was deposited by him in his S.B. Account opened at the Hassan Branch on 18.04.1985. These two cheques were sent by the branches for collection and for clearing. While attending the clearing work, the appellant removed the Cheque for Rs.40,000/- drawn on SBI, Shivajinagar Branch, Bangalore and destroyed it and rounded off the individual figure of Rs.40,000/- in the bank’s schedule as if it has been deleted and corrected the total by changing the figure in the outward column from Rs.5,74,491.75 to Rs.5,34,491.75 without correcting the total. On 30.04.1985, while attending to the clearing work, the petitioner removed the cheque for Rs.20,000/- drawn on State Bank of India, Shivajinagar Branch and destroyed the same. He rounded off the individual figure of Rs.20,000/- in the bank’s schedule and alterations were made in the records.
8. It is stated that by the above said acts of manipulation and alteration, the cheque for Rs.40,000/- and Rs.20,000/- drawn on SBI, Shivajinagar Branch, Bangalore were seem to have been realized on 10.04.1985 and 30.04.1985. These amounts were subsequently withdrawn causing financial loss to the bank.
9. According to the charge sheet dated 09.02.1988, when the appellant was deputed to BDA Extension counter of Kumara Park West Branch, during April-May 1986, he received cash of Rs.31,125/- from twelve applicants being the initial deposits in connection with BDA sites. Thereafter he issued counterfoils for having received the cash to the respective applicants without putting his initials deliberately and failed to enter the particulars such as application numbers and deposit amount in the shroff book and thereby failed to discharge his duty with honesty and integrity and committed gross misconduct.
10. The Inquiry Officer held that the charges were proved beyond doubt relying on the evidence and documents brought in the enquiry. The enquiry was conducted in respect of both the charge sheets separately. The Disciplinary Authority agreeing with the findings of the Inquiry Officer imposed the punishment of dismissal as contemplated under Chapter XI Regulation 4(g) of Canara Bank Service Code, vide proceedings dated 17.08.1989.
11. The Appellate Authority after considering the entire material on record dismissed the appeal and thereafter on failure of conciliation proceedings, the dispute was referred to the Tribunal.
12. The perusal of the Order passed by the Tribunal shows that on 23.08.1999, an order was passed holding that the domestic enquiry was in accordance with law and the additional issue framed was answered in the ‘affirmative’. Considering the proceedings of the enquiry and the evidence on record, it was held that the first party committed a grave misconduct.
13. The material on record would reveal that the appellant was convicted and sentenced by the Criminal Court, in C.C. No.58/1987. Against the said conviction and sentence passed by the criminal court, an appeal was preferred in Crl.A.No.279/1997. The said appeal was allowed in part and consequently, he was acquitted and sentence imposed against him was set aside. It is relevant to extract Para 22 of the judgment which is as under:
“Para 22 – For the above said reasons, though considering the possibility of accused No.1 colluding with accused No.2 is more and there is every possibility that it must be the accused No.1 who must have taken out these two cheques, the above facts create doubt regarding certainty of the involvement of the accused No.1 and in that view of the matter, the benefit of doubt has to be given to the accused No.1”.
14. It is a settled position that there is no bar to proceed simultaneously with the departmental enquiry and trial of criminal case. The appellant has participated in the enquiry and he was defended by a defence representative. He was given sufficient opportunity to defend his case and punishment was imposed on him after due regard to the enquiry proceedings. The punishment of dismissal is with regard to two charge sheets of gross misconduct. The objects, standard of proof, mode of enquiry being different and therefore the decision in the criminal case in the facts and circumstances has no bearing so as to set aside the impugned orders.
15. The learned single judge has placed reliance on the judgments of the Hon’ble Apex Court in various cases, wherein it is held that the order of discharge or acquittal shall not be a bar to award departmental punishment in respect of the same cause or matter. It is settled law that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding are entirely different.
16. The learned single judge has also placed reliance on the judgment of the Hon’ble Supreme Court in the case of Chennai Metropolitan Water Supply and Sewerage Board Vs. T.T. Murali Babu reported in (2014) 4 SCC 108, with regard to the delay in preferring the writ petition. The impugned award is dated 22.03.2001 and the writ petition was filed on 17.12.2008 i.e., after a lapse of 7 years 10 months. It is observed there in that, the delay brings injustice and it is likely to affect others and as such, delay can not be condoned.
17. For the foregoing reasons, we find no merit in this appeal. Accordingly, the writ appeal is dismissed.
Sd/- Sd/-
JUDGE JUDGE snc