Sunil Kumar Mohanty vs Kalahandi Anchalika Gramya Bank And Others.

,,,,

Biswanath Rath, J",,,,

This writ petition involves the following prayer:,,,,

“It is, therefore, humbly prayed that this Hon’ble Court be graciously pleased to admit the writ application, issue notice to the opp. parties",,,,

calling upon them to show cause as to why the disciplinary authority order dated 31.7.2001 in Annexure-18 and the appellate Authority order,,,,

confirming the disciplinary authority order dated 18.5.2002 in Annexure-24 shall not be quashed;,,,,

If the Opp. parties fail to show cause or give insufficient cause, make the rule absolute by quashing Annexurs-18 and 24 and issue a writ of",,,,

mandamus directing the authorities to reinstate the petitioner forthwith and grant all consequential service benefits as due and admissible to him in,,,,

accordance with law within a stipulated period of two months from the date of passing of the order;,,,,

And pass such order/order(s), direction(s) as this Hon’ble Court deems just and proper in the facts and circumstances of the case;",,,,

And for which act of kindness, the petitioner as in duty bound shall ever pray.â€​",,,,

Short background involving the case is that petitioner joined as a Branch Manager in the erstwhile Kalahandi Anchalika Gramya Bank, Sagada",,,,

Branch, Kalahandi on 23.11.1981. During his service career, petitioner dependant on a departmental proceeding was already imposed with major",,,,

penalty and while continuing as such, petitioner was served with charge-sheet, vide Annexure-1 on 25.07.1994 on the premises of violation of",,,,

provisions under Regulation 19, 22(2), 30(1) of Kalahandi Anchalika Gramya Bank (Staff) Service Regulation, 1980 (in short ‘KAGB Regulation,",,,,

1980’). Disciplinary Proceeding was concluded in participation of the petitioner based on the report of the Enquiry Officer submitted on,,,,

14.03.2001. Chairman as Disciplinary Authority passed an order of dismissal of the petitioner from Bank service under Regulation 30(1) of KAGB,,,,

Regulation, 1980, however with liberty to the petitioner to prefer appeal. In the meantime entertaining the review application, the Disciplinary Authority",,,,

kept the final order of punishment in abeyance asking the petitioner to submit his written statement of defence to the enquiry report, which order was",,,,

again recalled by the Chairman by his order dated 03.08.2001 asking the petitioner to file appeal before the Appellate Authority. Petitioner preferred,,,,

appeal. In the meantime for non-disposal of the appeal, petitioner preferred O.J.C. No.3285 of 2002 before this Court. The said writ petition was",,,,

disposed of with a direction to the Appellate Authority for early disposal of this appeal within a period of four months. Appellate Authority in the,,,,

meantime disposed of the appeal with an order of dismissal of the appeal on 18.5.2002, vide Annexure-24.",,,,

Mr.J.K. Rath, learned Senior Advocate for the petitioner taking this Court to the fact that petitioner has already been superannuated requesting the",,,,

Hon’ble Court instead of entering into the merit involving the enquiry proceeding, vis-à -vis, the order of the Disciplinary Authority for converting",,,,

the punishment by order of dismissal to that of compulsory retirement, more particularly keeping in view the fact that petitioner is suffering throughout",,,,

his life for the dismissal order on his head. Taking this Court to the charges involving the petitioner and the establishment of charges through the,,,,

enquiry proceeding on the premises of involvement of minimal allegations being established through the enquiry report, Sri Rath, learned Senior",,,,

Advocate attempted to justify his request for modification of the final order of dismissal.,,,,

To the contrary, Mr. R.K. Rath, learned Senior Advocate appearing for the contesting opposite parties being assisted by Mr. P.V.Balakrishna,",,,,

learned counsel taking this Court to the charges and the establishment of most of the charges through enquiry proceeding contended that petitioner,,,,

being a Bank employee and allegation involving misappropriation and misutilization of funds as well as power being established, referring to the",,,,

decision in the case of South Indian Cashew Factories Workers’ Union Vrs. Kerala State Cashew Development Corporation Ltd. and others,",,,,

reported in (2006) 5 SCC 201 contended that for the involvement of a bank employee in serious allegations, being established through enquiry not only",,,,

this Court has limited scope to interfere in such matter but for the decision of the Hon’ble apex Court, no leniency should be shown involving such",,,,

allegations.,,,,

Considering the rival contentions of the parties and looking to the charge-sheet vide Annexure-1, this Court finds the following charges and",,,,

statement of imputations against the petitioner:,,,,

CHARGESHEET:,,,,

Under Regulation 30(2) of Kalahandi Anchalika Gramya Bank (Staff) Service Regulations, 1980, this charge-sheet is served on Sri Sunil Kumar",,,,

Mohanty, Officer since placed under suspension. The Article of Charges and the statement of imputations are enclosed which are self-explicit.",,,,

The list of documents on which the charges rest and the list of witnesses on which testimony the charges are sought to be established are placed as,,,,

Annexure-A and Annexure-B respectively. These lists are, however, not self limiting. So, any new document may be presented and any new witness",,,,

examined to establish a charge. Any of the listed items may be dropped, too.",,,,

Sri Mohanty is to acknowledge receipt of this letter on the duplicate hereof along with his signature and date and submit his statement of defence,,,,

within 30 days from the date of receipt thereof and forward the acknowledged copy to reach the undersigned as soon as possible, through the Branch",,,,

Manager, K.A.G.B., Boudh.",,,,

Sri Mohanty may inspect the relevant books/records at our Sagada(K) Branch on any working days if he so needs to submit his statement of,,,,

defence. For the purpose he is allowed three days which is inclusive of the 30 days granted to him to submit his statement of defence.,,,,

Further, Sri Mohanty is to specifically admit or deny each charge for it is on specific denial of any charge(s) that an enquiry will be ordered into the",,,,

same.,,,,

ARTICLE OF CHARGES:,,,,

Sri Sunil Kumar Mohanty, Officer since placed under suspension for his alleged involvement in other serious irregularities elsewhere, has also during",,,,

his incumbency at our Sagada (K) branch committed such serious irregularities as misappropriation of Rs.10,000/-from Branch cash, and, later",,,,

tampering with the debit voucher and the Head Office A/c. Register maintained at the Branch; siphoning off of a large sum of money for his personal,,,,

use through various factious a/cs by misutilising his financial powers as Branch Manager; blatant violation of the Bank’s laid down instructions in,,,,

the matter of following the accounting procedure as well as general administration; failure to exercise effective control over staff posted under him;,,,,

unauthorised absence and manipulation of records to suppress the same; gross irregularities in the documentation, conduct and follow up of advances",,,,

thereby causing heavy loss to the Bank; incurring loss to the Bank by making unrelated payments to third parties and further by allowing interest,,,,

concession to ineligible borrowers under the Agriculture Head; and, above all acting in a manner highly detrimental to the interest of the Bank. Thus",,,,

No.,Date,"Loan A/c.

No.","N ame of the

borrower","Amount (in

Rs.)

i),19.9.86,TL 121,Butia Majhi,"3,000.00

ii),23.9.86,TL 122,Poki Harijan,"3,000.00

iii),25.9.86,TL 124(A),Anirudha Bag,"2,000.00

iv),10.12.86,TL 127,Ratu Harijan,"2,000.00

v),11.11.86,TL 125(A),Purandar Singh,"2,000.00

vi),10.12.86,TL 128,Gurubaru Majhi,"2,000.00

vii),17.1.87,TL 128(A),Dukhishyam Rout,"2,500.00

viii),17.1.87,TL 128(B),Tankadhar Rout,"2,500.00

ix),20.1.87,TL 124(C),Durbasa Naik,"4,000.00

28.8.85 to 2.9.85,28.2.86,,,

6.9.85,22.3.86,,,

18.10.85,31.3.86,,,

13.11.85,26.4.86,,,

,24.5.86 to 7.6.86,"Not signed DTR, vouches

not signed

(30.5.86)",,

28.6.86 to 8.7.86,(Not signed DTR),,,

23.7.86,,,,

16.8.86,,,,

30.8.86 to 3.9.86,,,,

3.10.86 to 7.10.86,(vault not signed),,,

7.10.86,,,,

13.11.86,,,,

14.11.86,,,,

1.1.87,,,,

7.1.87,,,,

12.1.87,,,,

13.1.87,,,,

14.1.87,,,,

31.7.86,-,Not signed the vouchers.,,

13.8.86 to 14.8.86,-,-do-,,

25.8.86 to 26.8.86,,-do-,,

5.9.86 to 6.9.86,-,-do-,,

27.10.86,-,-do-,,

11.11.86,-,-do-,,

14.11.86,-,"Not signed gold loan payment

voucher and ACC payment (No.149)",,

5.12.86,-,Not signed the vouchers of the day.,,

10.12.86,,Not signed the vouchers of the day.,,

22.12.86,,Not signed many vouchers of the day.,,

23.12.86,,"Not signed payment voucher for Rs.13,000/-

(GL No.181)",,

B) I.P. PADHI, JCC",,,,

3.1.87,-,Not signed the vouchers of the day.,,

5.1.87,-,Not signed many vouchers.,,

6.1.87,-,Two gold loan payment vouchers,,

7.1.87,-,Many vouchers,,

9.1.87,-,Many vouches,,

12.1.87,-,Cash Credit Payment Rs.300/- (A/c. No.421),,

14.1.87,-,Not signed any voucher,,

17.1.87,-,Two TL payment vouchers,,

19.1.87,-,Not signed many the vouchers of the day.,,

20.1.87,-,Not signed many vouchers of the day.,,

G.L.

A/c. No.","N a m e of the

borrower","D a t e of

sanction","Amount

sanctioned

(Amount in

Rs.)","Purity of

gold

179/86,Mahavir Prasad Agrawal,14.11.86,"15,000/-","19

carat

127/85,"Sudhansu Sekhar

Deo, Statue Para,

Bhawanipatna",20.11.85,"7,500/-","17

carat

190,"Suresh Kumar Agrawal,

Bhawanipatna",14.1.87,"11,000/-","18

carat 21

carat

1/73,"Bibhuti Bhusan

Deo, Statue Para,

Bhawanipatna",7.1.85,"25,000/-","18

carat

in execution of documents have been observed in some of the accounts mentioned in the charge.,,,,

Looking to the gravity of allegations and the Charge Nos.1, 5, 6, 8, 9, 10, 11 and 13 are fully established, Charge nos.2, 3, 4, 12 and 14 have not",,,,

been proved against the petitioner and Charge No.7 is partially established. For the nature of allegation involving the above charges, this Court finds",,,,

not only there is serious allegation involving the Bank Officer but there has been also establishment of serious allegations through a duly constituted,,,,

Departmental Proceeding. This Court here finds the decision of the Hon’ble apex Court, vide in the case of Union of India v. Sardar Bahadur,",,,,

reported in (1972) 4 SCC 618 and observed in SCC p. 623, para 15 as follows:",,,,

“15. .........Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion,,,,

that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an",,,,

independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed,,,,

before the High Court.â€​,,,,

In the case of Union of India v. Parma Nanda, reported in (1989) 2 SCC 177, this Court while dealing with the scope of the Tribunal’s jurisdiction",,,,

to interfere with the punishment awarded by the disciplinary authority observed in SCCp.189, para 27 as follows:",,,,

“27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated,,,,

with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary,,,,

or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority,,,,

either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules,,,,

and in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of",,,,

the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its",,,,

own discretion for that of the authority.â€​,,,,

Further in the case of B.C. Chaturvedi v. Union of India, reported in (1995) 6 SCC 749, Hon’ble apex Court reviewed some of the earlier",,,,

judgments and in SCC p.762, para 18 held as under:",,,,

“18. A review of the above legal position would establish that the disciplinary authority, and on appeal, the appellate authority, being fact-finding",,,,

authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose,,,,

appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial",,,,

review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary",,,,

authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the",,,,

disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose",,,,

appropriate punishment with cogent reasons in support thereof.â€​,,,,

This Court here finds decision of the Hon’ble apex Court, vide in the case of Rajasthan Tourism Development Corporation Limited and another",,,,

Vrs. Jai Raj Singh Chauhan, reported in (2011) 13 SCC 541 has also clear support to the case of petitioner.",,,,

Further in the case of State Bank of India Vrs. Ram Lal Bhaskar and another, reported in (2011) 10 SCC 249, in paragraphs-12 and 13 of the",,,,

above judgment, Hon’ble apex Court observed as under:",,,,

“12. This Court has held in State of A.P. v. S. Sree Rama Rao, reported in AIR 1963 SC 1723 at pp.1726-27, para 7).",,,,

“7. ..... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities,,,,

holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that,,,,

behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some",,,,

evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that",,,,

the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under article 226 to review the evidence and",,,,

to arrive at an independent finding on the evidence.â€​,,,,

Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the",,,,

disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate,,,,

the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this,,,,

Court which we need not refer to, and yet by the impugned judgment the High Court has re-appreciated the evidence and arrived at the conclusion",,,,

that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations levelled against Respondent no.1,,,,

do not constitute any misconduct and that Respondent no.1 was not guilty of any misconduct.,,,,

In the case of State Bank of Bikaner & Jaipur Vrs. Nemi Chand Nalwaya, reported in (2011) 4 SCC 584, Hon’ble apex Court in paragraph-7",,,,

held as under:,,,,

It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the",,,,

ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence,",,,,

the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental,,,,

enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no",,,,

evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such,,,,

conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural",,,,

justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.",,,,

(Vide B.C.Chaturvedi v. Union of India, reported in (1995) 6 SCC 749, Union of India v. G.Ganayutham, reported in (1997) 7 SCC 463, Bank of India",,,,

v. Degala Suryanarayana, reported in (1999) 5 SCC 762 and High Court of Judicature at Bombay v. Shashikant S. Patil, reported in (2000) 1 SCC",,,,

416),,,,

From the above, this Court finds there is little scope available with the High Court to re-examine or re-appreciate the evidence and materials",,,,

involving the enquiry report. Similarly in the case of South Indian Cashew Factories Workers’ Union Vrs. Kerala State Cashew Development,,,,

Corporation Ltd. and others, reported in (2006) 5 SCC 201, this Court finds the Hon’ble apex Court in paragraphs-11, 12 and 14 observed as",,,,

follows :,,,,

In Delhi Cloth and General Mills Co. Ltd. v. Labour Court, reported in (1970) 1 LLJ 23 (SC), this Court has held that merely because the enquiry",,,,

officer is an employee of the management it cannot lead to the assumption that he is bound to decide the case in favour of the management.,,,,

In Saran Motors (P) Ltd. v. Vishwanath, reported in (1964) 2 LLJ 139 (SC), this Court held as follows: (LLJ p. 141)",,,,

“It is well known that enquiries of this type are generally conducted by the officers of the employer and in the absence of any special individual,,,,

bias attributable to a particular officer, it has never been held that the enquiry is bad just because it is conducted by an officer of the employer.â€​",,,,

xx xx xx.,,,,

The only other ground found by the Labour Court against the enquiry officer is that he made some unnecessary observations and, therefore, he",,,,

was biased. The plea that the enquiry officer was biased was not raised during the enquiry or pleadings before the Labour Court or in the earlier,,,,

proceedings before the High Court. The bias of the enquiry officer has to be specifically pleaded and proved before the adjudicator. Such a plea was,,,,

significantly absent before the Labour Court. We also note that the Labour Court itself found that the enquiry officer relied on the evidence adduced in,,,,

the enquiry and his findings were not perverse. After such a finding, even if he has stated some unwarranted observations, it cannot be stated that the",,,,

report is biased. In TELCO v. S.C. Prasad, this Court held that: (SCC pp. 380-81, para 13)",,,,

“13. Industrial Tribunals, while considering the findings of domestic enquiries, must bear in mind that persons appointed to hold such enquiries are",,,,

not lawyers and that such enquiries are of a simple nature where technical rules as to evidence and procedure do not prevail. Such findings are not to,,,,

be lightly brushed aside merely because the enquiry officers, while writing their reports, have mentioned facts which are not strictly borne out by the",,,,

evidence before them.â€​,,,,

This Court here finds involving Bank employees itself the Hon’ble apex Court already given the view that there should be heavy punishment to,,,,

prevent such offences being taking place in the financial institutions. Hon’ble apex Court observed therein to have strict approached involving such,,,,

employees. For the establishment many of the serious charges against the petitioner through the enquiry report, for support of the decisions referred to",,,,

herein above to the case of opposite parties, this Court finds there is no scope for showing leniency in such cases and accordingly there is no scope of",,,,

interfering in the order of punishment as well as in the order of the Appellate Authority under Annexures-18 and 24 respectively. The writ petition thus,,,,

stands dismissed. There shall be no order as to cost.,,,,