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2015 DIGILAW 1367 (KAR)

A. v. Kulkarni VS Karnataka Vikas Grameena Bank

2015-12-18

A.S.BOPANNA

body2015
ORDER : A.S. Bopanna, J. 1. The petitioner is before this Court assailing the order dated 05.03.2009 and 15.04.2009 passed by the Disciplinary Authority holding the petitioner guilty of the charges and imposing the punishment of compulsory retirement and recovery of the amount. The approval of the said action by dismissing the appeal through the order dated 20.07.2009 by the Appellate Authority is also assailed in the petition. 2. The petitioner joined the services of the respondent bank on 07.05.1984. He had worked in different capacity and was ultimately posted as the Manager in the Sindagi Branch of the respondent bank. While discharging his duties therein, the respondent bank is stated to have noticed certain fraudulent withdrawals having occurred in the said branch. The different transactions by which such withdrawals were made had resulted in the respondent-bank losing about Rs. 66.50 lakhs. Such fraudulent withdrawals though indulged by a clerk-cum-cashier Sri A.R. Kulkarni, the petitioner was alleged to have entered and authorised such fraudulent transactions which was also made possible because the petitioner had revealed the password of the user ID to the said employee. Hence, it was alleged that the petitioner had aided such acts. 3. In that view, a show cause notice dated 09.03.2007 was issued to the petitioner enlisting the misconduct and seeking for explanation as to why disciplinary proceedings should not be initiated. The petitioner replied to the same on 24.03.2007. Since the explanation was not satisfactory, the Disciplinary Authority has issued the charge sheet dated 24.08.2007 stating the Articles of Charge and statement of imputation of misconduct. Pursuant thereto, the disciplinary enquiry was held whereupon the Enquiry Officer submitted the findings dated 29.11.2008 holding that the petitioner had colluded with/facilitated Sri A.R. Kulkarni in defrauding the Bank's money to the extent of Rs. 66.50 lakhs thereby deriving illegal pecuniary benefits. The findings were forwarded to the petitioner on 02.12.2008 and on securing his reply, the Disciplinary Authority has accepted the findings and imposed the punishment of compulsory retirement by the order dated 05.03.2009. The petitioner had filed an appeal against the said order to the Board of Directors on 06.05.2009 viz., the Appellate Authority which was considered and rejected by the Board. The petitioner claiming to be aggrieved has assailed such action in this petition. 4. The respondents have filed their statement of objection wherein they seek to sustain the action. The petitioner had filed an appeal against the said order to the Board of Directors on 06.05.2009 viz., the Appellate Authority which was considered and rejected by the Board. The petitioner claiming to be aggrieved has assailed such action in this petition. 4. The respondents have filed their statement of objection wherein they seek to sustain the action. The contentions urged in the writ petition to assail the action of the respondent bank is denied. The sequence which led to the charge being framed against the petitioner and the procedure followed in the enquiry being in compliance with the principles of natural justice is adverted to. Fair opportunity of being defended with the assistance of co-officer as the Defence Representative is referred and in that light, it is contended that the evidence and the documents produced in the enquiry had established the charge against the petitioner. When the allegation is of misappropriation of money and that too while working as a Manager in the branch of the respondent bank, confidence would be lost and as such the punishment of compulsory retirement is contended as justified in the circumstance. It is contended that the petitioner as a Manager had allowed the password of the user ID to be used without any check and had also authorised and cleared such transactions which would only lead to the conclusion that the petitioner had colluded with the employee who had committed the fraudulent act and such act had caused huge loss to the respondent bank. Hence, the action is sought to be justified. 5. Heard Sri Sreevatsa, learned senior counsel appearing on behalf of Sri Sudhir Kulkarni, for the petitioner and Sri Sanjay M. Joshi, learned counsel for the respondent-bank and perused the petition papers. 6. The proceedings of the enquiry as recorded and the report of the enquiry Officer are voluminous. Learned Senior counsel for the petitioner would however contend that the procedure as contemplated in law is not followed and as such there is violation of principles of natural justice as appropriate opportunity has not been provided and the copies of the documents relied upon has not been furnished. It is also contended that the subsistence allowance paid was meagre and as such the petitioner could not effectively take part in the proceedings. 7. It is also contended that the subsistence allowance paid was meagre and as such the petitioner could not effectively take part in the proceedings. 7. In the light of the said contentions, a perusal of the petition papers would disclose that as contended by the learned senior counsel, the petitioner no doubt had addressed a letter dated 18.03.2007 to the Chairman seeking for the documents prior to the commencement of the enquiry. The petitioner in any event had submitted his reply to the show cause notice referring to the allegations that had been made against him on having understood the charge made against him. Thereafter on the date when the enquiry had commenced on 24.08.2007, the Presenting Officer had filed a list of documents before the Enquiry Officer. The Enquiry Officer has recorded on the said date that he had requested the Presenting Officer to furnish the copies on or before 28.01.2008 so as to send the same to the Representative of the petitioner. Opportunity was also extended to the Representative to verify the originals of the documents produced by the Presenting Officer, during office hours with prior intimation. On 22.01.2008 the Representative of the petitioner had submitted a letter seeking for documents which was recorded and pending the same, since the Representative did not have objection to proceed with the enquiry, the enquiry was conducted further after recording the same. 8. On 08.04.2008 the documents were required to be produced and as such the Presenting Officer had requested some time and on the subsequent date i.e., on 05.05.2008 the Presenting Officer submitted certain documents and it is recorded in the proceedings that the copies of the documents are handed over to the Representative of the petitioner along with the records produced by the Presenting Officer for verification. The Representative after verification has returned the records produced by the Presenting Officer and the documents were taken on record serially. The Representative of the petitioner did not raise any objection with regard to the documents produced, the nature of the documents or the extent of opportunity granted for verification or scrutiny of the documents. 9. The Representative after verification has returned the records produced by the Presenting Officer and the documents were taken on record serially. The Representative of the petitioner did not raise any objection with regard to the documents produced, the nature of the documents or the extent of opportunity granted for verification or scrutiny of the documents. 9. Though the learned senior counsel would contend that as per the list only 121 documents were produced, but subsequently additional documents have been marked taking it to 183 exhibits without furnishing copies of the documents, the proceedings on 10.10.2008 would disclose that when the document bearing No. MEX 130 which is beyond the number indicated in the list was marked and if the same is taken as instance to consider the contention, it is seen that it is recorded that the xerox copy of the same was given to the Representative for verification and on being returned after verification, it has been taken on record and marked in evidence. Therefore, when the documents were made available to the Representative and the Representative has taken part in the entire proceedings and no grievance was made by the Representative during the enquiry proceedings, the contention that the documents were not furnished to the petitioner being raised as an objection cannot be accepted since it is only an after thought. 10. Further, the law is well settled that even to contend that the proceedings of the enquiry is vitiated for non-production of the documents, the delinquent concerned would have to specifically indicate the document that was relied on in the enquiry without furnishing copy of the same and the prejudice that is caused because of the reliance placed on such document. To that effect, no contention whatsoever is put forth except alleging in general terms that the copies of the documents were not made available and it was only shown at the time of marking the document in the enquiry. On furnishing the documents, in relation to the other documents sought, the explanation as put forth has been accepted by the Enquiry Officer in the proceedings dated 05.05.2008 and it is indicated that when the onus to prove the charge is on the management, the documents sought to be relied on will only be produced and as such, no direction was issued. The petitioner or his Representative has not made any effort thereafter to summon any specific document if it was required to be relied upon on behalf of the petitioner. The proceedings would also indicate that at every stage, it has been recorded as to whether the representative has completed the cross examination of the witness, has no cross examination to be done or that he has no evidence to tender. Therefore, the proceedings as such has been held in accordance with law after providing full opportunity to the petitioner and on all the dates of proceedings the Representative was also present. The petitioner and the Representative have affixed their signatures on every date of the proceedings. 11. Insofar as the payment of the subsistence allowance though it is contended that only a sum of Rs. 6,000/- was being paid, it is not brought on record as to the actual amount that was payable as per the regulations and as to whether the same has not been complied. The Payment as made is as per the regulations. At no earlier stage, had the petitioner complained about the subsistence allowance which was due not being paid nor has the petitioner remained away from the enquiry on that ground so as to complain at this stage that he could not effectively defend himself in the enquiry due to that reason. No such objection is raised in the Enquiry nor was any complaint made to the higher authorities on the issue relating to the subsistence allowance. 12. In the above background, a perusal of the proceedings as recorded by the Enquiry Officer will disclose that the same has been conducted by following the due procedure to record the statement of the witnesses examined through the Presenting Officer and in the said course, the documents were exhibited. The Representative of the petitioner has also cross examined the respective witnesses after the examination of such witness was completed. The documents as relied upon in the enquiry are in relation to each charge viz., the relevant withdrawal and the documents marked in relation thereto are the ledger extracts, cash payment scroll and the debit voucher relevant for each alleged fraudulent withdrawal with reference to the date of such transaction. The documents as relied upon in the enquiry are in relation to each charge viz., the relevant withdrawal and the documents marked in relation thereto are the ledger extracts, cash payment scroll and the debit voucher relevant for each alleged fraudulent withdrawal with reference to the date of such transaction. When such documents which are required to be maintained on the day-to-day transaction in a branch are produced and when such documents were marked in the enquiry, the petitioner being the Manager of the branch and being assisted by a Representative would have knowledge relating to the relevance of such documents and if the same were to be controverted, it was possible to be done in the course of cross examination. Hence, the grievance sought to be made out that the documents were merely shown cannot bear any substance. 13. Further, the report of the Enquiry Officer in the nature of findings would disclose that the Enquiry Officer has taken into consideration the nature of the charge, the evidence tendered, the contentions put forth and on referring to the evidence and documents in relation to each charge has rendered the finding holding the petitioner guilty of the charge alleged whereby he has colluded with and facilitated Sri A.R. Kulkarni, clerk-cum-cashier in defrauding the bank to the tune of Rs. 66.50 lakhs. When the findings are recorded with reference to the material on record, the same in any event cannot be termed as perverse. On submission of the findings, the Disciplinary Authority has furnished a copy of the same through the communication dated 02.12.2008 calling upon the petitioner to make his submissions, comments/remarks if any on the findings. The reply has been submitted by the petitioner on 30.12.2008. 14. It is with reference to the findings of the Enquiry Officer and the reply submitted, the Disciplinary Authority has accepted the findings and imposed the punishment through the order dated 05.03.2009. The process as noticed above would indicate that the procedure known to law has been adopted and the principles of natural justice has been complied. 14. It is with reference to the findings of the Enquiry Officer and the reply submitted, the Disciplinary Authority has accepted the findings and imposed the punishment through the order dated 05.03.2009. The process as noticed above would indicate that the procedure known to law has been adopted and the principles of natural justice has been complied. The Disciplinary Authority while imposing the punishment, with reference to the charge that was proved has also taken into consideration that while posting the petitioner as the Manager of a Branch had bestowed trust, but instead of promoting and protecting the interest of the bank, the petitioner had colluded with a clerk in siphoning the bank's fund to a huge extent. It is thus on keeping in view the nature, gravity and magnitude of the misconduct, the penalty of compulsory retirement has been imposed. Merely contending that the others against whom allegation was made are let off will not advance the case of the petitioner. Admittedly, criminal proceedings are pending against Sri A.R. Kulkarni. 15. The Appellate Authority has also taken into consideration the nature of the charge which had been proved, the gravity of misconduct and had upheld the action of the Disciplinary Authority. Having taken into consideration the manner in which the proceedings had been concluded against the petitioner and also taking into consideration the gravity of the misconduct where huge financial misdemeanor is proved, certainly the punishment of compulsory retirement of an employee who holds a position of trust cannot be considered as excessive nor could it be considered as disproportionate to the gravity of the misconduct so as to shock the conscience of the Court. The above view would also stand fortified by the view expressed by the Hon'ble Supreme Court in the following cases relied upon by the learned counsel for the respondent-bank: "(i) Chairman and Managing Director, United Commercial Bank and others v. P.C. Kakkar [2003 SCC (L & S) 468]. (ii) State Bank of India v. Ram Lal Bhaskar and another [ (2011)10 SCC 249 ]. (iii) State Bank of India and others v. Bidyut Kumar Mitra and others [(2011)1 SCC (L & S) 323]." 16. Hence for all the aforestated reasons, I see no merit in this petition. The orders dated 05.03.2009 and 15.04.2009 passed by the Disciplinary Authority do not call for interference. (iii) State Bank of India and others v. Bidyut Kumar Mitra and others [(2011)1 SCC (L & S) 323]." 16. Hence for all the aforestated reasons, I see no merit in this petition. The orders dated 05.03.2009 and 15.04.2009 passed by the Disciplinary Authority do not call for interference. The petition is accordingly disposed of with no order as to costs.