Dismissed

A Yallappa v. the General Manager

Karnataka HC9 Aug 2023WP/86194/2013

Case brief

AI extract

What is this about?

In a writ petition challenging departmental proceedings and penalty of removal from service, the Karnataka High Court held that judicial review is extremely limited. The Court relied on precedents stating it cannot re-appreciate evidence or interfere with findings unless there is a violation of natural justice, statutory rules, or if the conclusion is wholly arbitrary.

What did the court decide?

Petition rejected; impugned orders of disciplinary and appellate authorities affirmed.

A Yallappa Vs the General Manager — Service and Employment | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

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DATED THIS THE 9^TH DAY OF AUGUST, 2023

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BEFORE

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THE HON'BLE MR JUSTICE M.NAGAPRASANNA

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WRIT PETITION NO. 86194 OF 2013 (S-DIS)

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BETWEEN:

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A. YALLAPPA, AGE: 49 YEARS, OCC: NIL, R/O. C/O. A. KRISHNA, #365, 5^TH CROSS, M. J. NAGAR, OPP. S.V. SRINIVASALU HOUSE, NEAR PARK, HOSPET-583201.

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… PETITIONER

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(BY SRI. ARAVIND D KULKARNI, ADVOCATE)

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AND:

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VISHAL NINGAPPA PATTIHAL

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Digitally 1. THE GENERAL MANAGER, signed by PERSONAL DEPARTMENT (IRD), VISHAL NINGAPPA VIJAYA BANK, HEAD OFFICE, PATTIHAL M.G. ROAD, TRINITY CIRCLE, Date: BANGALORE-560001. 2023.08.29 10:35:09 +0530 2. THE DEPUTY GENERAL MANAGER

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THE DEPUTY GENERAL MANAGER (DISCIPLINARY AUTHORITY), PERSONAL DEPARTMENT (IRD), VIJAYA BANK, HEAD OFFICE, M.G. ROAD, TRINITY CIRCLE, BANGALORE-560001.

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THE CHAIRMAN & MANAGING DIRECTOR AND THE EXECUTIVE DIRECTOR, VIJAYA BANK, HEAD OFFICE,

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M.G. ROAD, TRINITY CIRCLE, BANGALORE-560001.

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THE ASSISTANT GENERAL MANAGER, VIJAYA BANK, REGIONAL OFFICE, HUBLI.

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THE BRANCH MANAGER, VIJAYA BANK, BELLARY.

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… RESPONDENTS

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(BY SRI. N.S. BHAT & SRI. RAMESH I. ZIRALI, ADVOCATES FOR R2; SRI. SUNDARSWAMY RAMDAS, SRI. SURESH S. GUNDI & SRI. SAYYED KASHIF, ADVOCATES FOR R4 & R5; R1 & R3 ARE SERVED)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 & 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI OR ANY OTHER WRIT OF DIRECTION IN THE NATURE OF WRIT TO QUASH IMPUGNED PROCEEDINGS NO. PER/IRD/HBL/2680/2009, DATED 22.06.2009 PASSED BY THE 2^ND RESPONDENT (ANNEXURE-A) AND ALSO APPELLATE ORDER NO. PER:IRD:HBL:3036/2010, DT.30.07.2010 PASSED BY THE 1^ST RESPONDENT (ANNEXURE-B) & ETC.

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THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN ‘B’ GROUP, THIS DAY, THE COURT MADE THE FOLLOWING:

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ORDER

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The petitioner is before this Court calling in question the order dated 22.06.20009 passed by the Disciplinary Authority and an order dated 30.07.2010 passed by the appellate authority affirming the order passed by the disciplinary authority.

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Heard the learned counsel Sri.Aravind D. Kulkarni appearing for the petitioner and the learned counsel Sri.N.S.Bhat, Sri.Ramesh I. Zirali, Sri.Sundarswamy Ramdas, Sri.Suresh S. Gundi and Sri.Sayyed Kashif for the respondents.

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Facts in brief, germane, are as follows:

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The petitioner joins the service of the respondent, the then Vijaya Bank on 07.02.2006. Barely after 16 months of joining service, he is placed under suspension, on a complaint being received on 22.08.2007 regarding commission of certain irregularities and of cheating, misappropriation, non-remittance of customers amount to the loan account inter alia . The suspension of the

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petitioner was in contemplation of disciplinary proceedings to be conducted in terms of Vijaya Bank Officer Employees’ (Discipline and Appeal) Regulations, 1981 (hereinafter referred to as, “the Regulations” for short).

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It transpires that prior to the issuance of the charge sheet, the complainant who had addressed a letter on 18.12.2008 with regard to non-remittance of the amount into the loan account withdraws the said complaint but the charge sheet comes to be issued. The petitioner then replies to the charge sheet and the reply being found unsatisfactory, an enquiry officer is appointed to conduct departmental enquiry against the petitioner. The departmental enquiry ends in the report of the enquiry officer holding the petitioner guilty of charges 2 to 7 while holding him not guilty of charge No.1. The disciplinary authority issues a second show cause notice to the petitioner enclosing the report of the enquiry officer and the petitioner submits his defence to the findings of the enquiry officer. The disciplinary authority by his order

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dated 22.06.2009 after considering the submissions made by the petitioner in defence to the findings of the enquiry officer imposes a penalty of removal of service. The petitioner in terms of the Regulation 17 of the Regulations files an appeal before the appellate authority against the order passed by the disciplinary authority dated 22.06.2009. The appellate authority in terms of the order dated 30.07.2010 rejects the appeal affirming the order passed by the disciplinary authority. It is these orders that drives the petitioner to this Court in the subject petition.

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The learned counsel appearing for the petitioner Sri.Aravind D. Kulkarni would vehemently contend that the customer who had complained with regard to nonremittance of the account retraces her steps, long before the issuance of the charge sheet and therefore the petitioner could not have been imposed a penalty of removal from service, on the ground that there was misappropriation of funds of a particular customer, who had registered a compliant.

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The learned counsel would further seek to

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contend that the departmental enquiry conducted by the enquiry officer was in violation of the Regulations or principles of natural justice, as the petitioner was not afforded adequate opportunity to defend himself in the enquiry. He would seek quashment of the proceedings and reinstatement into service.

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On the other hand, learned counsel representing the respondents Sri.Sayyed Kashif would refute the submission to contend that the petitioner has not been proved guilty of the particular charge in which the customer had withdrawn her complaint but other charges i.e., charges 2 to 7 were grave enough for a penalty of removal from service. He would contend that there is no violation of any procedure stipulated under the regulations. Therefore, he would seek dismissal of the petition.

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I have given my anxious consideration to the

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submissions made by the respective learned counsel and have perused the material on record.

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The entry of service of the petitioner in the year

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2006 is not in dispute, and him being placed under suspension barely after 16 months of entry into service is a matter of record. The suspension of the petitioner is on account of certain omissions and commissions is again the allegation against the petitioner. An investigation is conducted into the deeds of the petitioner and on the basis of the report of the Investigating Officer, a charge sheet comes to be issued alleging several irregularities including the one of tampering of cheques and misappropriation of funds by the petitioner. The charges levelled against the petitioner were seven in number, all of which relate to misconduct committed by the petitioner as it was removal of a cheque from a cheque book, containing 50 leaves and utilizing the said cheque book in a particular customers account inter alia.

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The charges thus touched upon embezzlement of funds or questionable integrity of the petitioner. Charge No.1 though was projected to be the main charge, the complainant withdrew the complaint even before issuance of the said charge. The enquiry officer notices this fact and holds the petitioner not guilty of the said charge, but the remaining charges i.e., charges 2 to 7 are all held to be proved by the enquiry officer, in terms of his report.

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The enquiry report is furnished to the petitioner by way of a second show cause notice and the petitioner then seeks to place his defence which becomes unacceptable and a penalty of removal from service imposed by the disciplinary authority in terms of the order impugned and the appellate authority affirms the said order.

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The allegations against the petitioner are no doubt one of embezzlement of funds of misappropriation touching upon the integrity of the petitioner. In such cases, where the disciplinary authority and the appellate

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authority have gone into the veracity of findings of the enquiry officer, and have by their detailed orders imposed penalty of removal from service, and affirmed the said penalty, judicial review in such cases, is extremely limited, as this Court would be loathe to interfere with the findings of the enquiry officer as affirmed by the disciplinary authority, in exercise of its jurisdiction under Article 226 of the Constitution of India.

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Reference being made in the judgment of the Apex Court in the case of Union of India and others vs. P.Gunasekaran in the circumstances becomes apposite. The Apex Court in the case of Union of India vs. P.Gunasekaran reported in (2015) 2 SCC 610 reported in (2015) 2 SCC 610 has held as follows:

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“13. Under Article 226/227 of the Constitution of India, the High Court shall not:

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(i). re-appreciate the evidence;

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(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

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(iii). go into the adequacy of the evidence;

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(iv). go into the reliability of the evidence;

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(v). interfere, if there be some legal evidence on which findings can be based.

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(vi). correct the error of fact however grave it may appear to be;

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(vii). go into the proportionality of punishment unless it shocks its conscience.

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14. In one of the earliest decisions in State of Andhra Pradesh and others v. S. Sree Rama Rao[1], many of the above principles have been discussed and it has been concluded thus:

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"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

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review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution."

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15. In State of Andhra Pradesh and others v. Chitra Venkata Rao[2], the principles have been further discussed at paragraph-21 to 24, which read as follows:

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"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public

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officer is guilty of misconduct charged against him, the rule followed in criminal trials that[pic]an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by

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irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.

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22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the

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committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.[pic]

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23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive

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jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan.

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24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

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16. These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh[3]. To quote the unparalled and inimitable expressions: "4. .... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is

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true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."

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20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability,

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purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values.”

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If the facts narrated hereinabove and the allegations are tested on the parameters, so laid down by the Apex Court in the case of P.Gunasekaran what would unmistakably emerge is that this Court would not interfere in the cases of this nature where there is no allegation of any pointed violation of principles of natural justice or violation of, the regulations in conduct of disciplinary proceedings, the submission of the learned counsel is in violation of principles of natural justice and procedural aberrations or mere statements. The Apex Court has clearly held when an order of penalty can be interfered with and when it cannot. All the parameters laid down in the case of P.Gunasekaran would be applicable to the case on hand, where the penalty should not be interfered with. In the light of the facts narrated hereinabove and the judgment of the Apex Court in the case of P.Gunasekaran finding no warrant to interfere with the

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findings of the enquiry officer, the order of the disciplinary authority and the appellate authority, the petition stands rejected.

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Sd/JUDGE

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Rsh/Ct:Bck List No.: 1 Sl No.: 42

A Yallappa v. the General Manager

Case brief

What is this about?

What did the court decide?

A Yallappa v. the General Manager

Case brief

What is this about?

What did the court decide?

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