Dismissed

K.V. Nagendra v. the Assistant General Manager II &

Karnataka HC20 Aug 2024WP/37107/2015

Case brief

AI extract

What is this about?

This writ petition challenged the award of compulsory retirement imposed on a bank employee for alleged misappropriation. The High Court held the enquiry fair, applied a 'preponderance of probabilities' standard, and dismissed the petition, confirming the Tribunal's order.

What did the court decide?

The writ petition is dismissed and the Tribunal's order is confirmed.

K.V. Nagendra Vs the Assistant General… — Labour and Industrial Disputes | Karnataka HC (2024)

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1 - NC: 2024:KHC:33616 WP No. 37107 of 2015

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU

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DATED THIS THE 20^TH DAY OF AUGUST, 2024

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BEFORE

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THE HON'BLE MRS JUSTICE K.S. HEMALEKHA

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WRIT PETITION NO.37107 OF 2015 (L-REF)

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BETWEEN:

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K.V. NAGENDRA S/O. LATE SRI VENKATAPPA, AGED ABOUT 57 YEARS, BHOVI, NR BHOVI KATTE MAIN ROAD, KONANDUR–577 422 THIRTHAHALLI TALUK, SHIMOGA DISTRICT. ... PETITIONER

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(BY SMT. PRIYANKA S. URS., ADVOCATE FOR SMT. MAMATHA SHETTY, ADVOCATE)

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AND:

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Digitally signed by MAHALAKSHMI B M Location: HIGH COURT OF KARNATAKA

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THE ASSISTANT GENERAL MANAGER II & DISCIPLINARY AUTHORITY, STATE BANK OF MYSORE, REGIONAL OFFICE, HASSAN, KARNATAKA. PIN – 573 201.

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THE DEPUTY GENERAL MANAGER, STATE BANK OF MYSORE, ZONAL OFFICE, MYSORE – 570 001.

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THE STATE BANK OF MYSORE HEAD OFFICE, REPRESENTED BY ITS GENERAL MANAGER, K.G. ROAD, BANGALORE – 560 009.

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THE BANK MANAGER, MYSORE BANK,

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NC: 2024:KHC:33616 WP No. 37107 of 2015

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NARASIMHARAJAPURA BRANCH, CHICKMANGALUR DISTRICT – 577 001.

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THE BANK MANAGER, MYSORE BANK, THIRTHAHALLI BRANCH, CHICKMANGALUR DISTRICT – 577 001.

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THE REGIONAL LABOUR COMMISSIONER (CENTRAL), OFFICE OF DEPUTY CHIEF LABOUR COMMISSIONER (c) SHRAM SADAN, YESWANTHPUR, BANGALORE – 560 022.

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THE CHIEF LABOUR COMMISSIONER (CENTRAL), MINISTRY OF LABOUR, SHRAM MANTRALAYA, NEW DELHI – 110 001.

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... RESPONDENTS

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(BY SRI R. ASHOKAN, ADVOCATE FOR SRI T.P. MUTHANNA, ADVOCATE FOR R-1 TO R-5; SMT. ANUPARNA BORDOLOI, CGC FOR R-6 & R-7)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO QUASH THE AWARD DATED 18.03.2015 IN C.R.NO.06/2007 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT VIDE ANNEXURE-Z; QUASH THE ORDER DATED 11.08.2011 IN C.R.NO.06/2007 PASSED BY THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUMLABOUR COURT VIDE ANNEXURE-Y AND ETC.

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THIS WRIT PETITION COMING ON FOR FINAL HEARING, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

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CORAM: HON'BLE MRS JUSTICE K.S. HEMALEKHA

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3 - NC: 2024:KHC:33616 WP No. 37107 of 2015

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ORAL ORDER

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Petitioner is before this Court assailing the legality and correctness of the award dated 18.03.2015 passed by the Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred to as ‘the Tribunal’ for short) in CR No.6/2007, whereby, the Tribunal by the impugned order upheld the punishment of compulsory retirement from service with effect from 30.04.2003.

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Petitioner joined the service of the respondentbank as a Cashier Clerk on 13.09.1985, articles of charges were leveled against the petitioner for misappropriation of Rs.20,000/-, when he was working as a Cashier-cum-Clerk in Narasimharajapura Branch, the charges leveled against the petitioner was that, on 29.10.2001, while the petitioner was working as ‘Acting Head Cashier’, at around 12.45 p.m., petitioner forcibly snatched away four (‘4’) sections of Rs.100/- denomination notes from Edwin - Daftary from out of the cash given for stitching by Sri B.T. Sheshadrivasa, Cashier-cum-Clerk and thereafter, he

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returned only two (‘2’) sections of Rs.100/- denomination notes to Edwin - Daftary in front of Sheshadrivasa and the petitioner has not returned the other two (‘2’) sections of Rs.100/- denomination notes. Further, Rs.20,000/- was remitted by the petitioner on 22.11.2001 towards repayment of the amount misappropriated by the petitioner and also remitted a sum of Rs.210/- towards interest for the same on 07.02.2002 and for the above acts of misappropriation on the part of petitioner, if proved, would amount to gross misconduct under Clause 19.5 (j) of the 6^th Bipartite Settlement and thereafter, the petitioner was issued with the show-cause as to why the disciplinary action should not be taken against him for gross misconduct. Being not satisfied with the reply given by the petitioner, enquiry was conducted, report was submitted holding that the charges leveled against the petitioner are proved. The Disciplinary Authority, by considering the report and the material placed before it, imposed punishment of compulsory retirement from service. The petitioner filed an appeal before the Deputy

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General Manager of the respondent-bank against the order of the Disciplinary Authority. It is stated that the Deputy General Manager has failed to reply, therefore, petitioner submitted representation for referring the matter for conciliation, conciliation proceedings were initiated and since the conciliation failed, the petitioner raised the dispute for redressal of his grievance and reference was made by the appropriate Government, petitioner filed claim petition in C.R.No.6/2007 challenging the order of compulsory retirement, contending that the Disciplinary Authority while passing the final order has not applied its mind independently to the grounds urged by the petitioner in its representations and the Disciplinary Authority has passed the order mechanically concurring with the findings recorded by the Enquiry Officer. Further, the imposition of compulsory retirement from service is an extreme penalty and highly disproportionate to the gravity of the misconduct and not completely investigated in a fair and proper manner.

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Respondent filed counter to the claim petition.

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The Tribunal, on the preliminary issue regarding the validity and fairness of the domestic enquiry, answered the issue in favour of Bank holding that the enquiry conducted was fair and proper. The parties have let-in evidence on victimization, the Tribunal, by the impugned order, upheld the order of the Disciplinary Authority and held that the Disciplinary Authority was justified in imposing punishment of compulsory retirement from service with effect from 30.04.2003. Aggrieved, the petitioner is before this Court.

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4. Heard Smt. Mamatha Shetty, learned counsel

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for the petitioner, Sri R. Ashoka along with Sri T.P. Muthanna, learned counsel for respondent Nos.1 to 5 and Smt. Anupama Bandari, learned CGC for respondent Nos.6 and 7.

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Learned counsel for the petitioner would

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vehemently urge the following grounds:

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i. That the Disciplinary Authority and the Tribunal have failed to consider the explanation offered by the petitioner and non-consideration of the petitioner’s evidence in proper perspective has led to gross violation of principles of natural justice.

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ii. That the Tribunal has failed to notice that the

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enquiry committee has erroneously accepted the evidence of three alleged witnesses namely, Sheshadrivasa - Cashier Clerk; Sunder - Bank Manager and Kamble - Assistant Manager Advances, who actually are not eyewitnesses, but mere complainants, who are supporting the story of Edwin-Daftary, the Disciplinary Authority and the Tribunal based on the evidence of the alleged witnesses have arrived at a conclusion that the charges levelled against the petitioner are proved.

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iii. Learned counsel taking this Court to the complaint lodged by Sheshadrivasa and Edwin - Daftary would submit that, initially they both filed complaint on 29.10.2001 and subsequently on 13.11.2001.

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Sheshadrivasa - Cashier Clerk and Edwin - Daftary have filed subsequent complaint narrating more facts about how the incident occurred, which was not stated by the complainant in the complaint dated 29.10.2001 and that, the Disciplinary Authority and the order of the Tribunal is vitiated as the reliance placed is on the subsequent complaint.

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iv. It is submitted that the Tribunal has failed to note that the enquiry conducted and did not take into account the version of the independent witness and placing the version of only Sheshadrivasa - Cashier Clerk and Sri Edwin - Daftary has made the petitioner guilty even when the petitioner deposed stating that there were alleged serious lapses in the evidence of all the alleged witnesses.

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v. That only on the basis of remittance of Rs.20,000/- by the petitioner along with interest, the Enquiry Officer and the Tribunal arrived at a conclusion that the charges levelled against petitioner is proved,

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which is totally erroneous, when the fact is that the credit voucher at BEX.9 shows that the payment of Rs.15,000/was made and balance of Rs . 5,000/- in fact was paid by B.T. Sheashadrivasa and this fact was specifically pleaded by the petitioner before the Enquiry officer which was failed to be considered by the Enquiry officer.

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vi. That there was no independent eyewitness to the incident and the two witnesses, i.e., Sheshadrivasa –

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Cash Clark and Edwin - Daftary, the bank witnesses were interested witness and prime suspects and the other two witnesses are independent witnesses are not eyewitnesses and there is a serious set back to the petitioner and principles of natural justice are violated.

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vii. In support of her contention, learned counsel placed reliance on the decision of the Apex Court in the case of Anil Kumar Vs. Presiding Officer and Others¹ (Anil Kumar) .

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1 AIR 1986 SC 1121

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Per contra , learned counsel appearing for the respondent-bank justifies the order passed by the Disciplinary Authority and would contend that,

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(i) The Tribunal, considering the facts, has rightly observed from the enquiry proceedings that the charges framed against the petitioner has been proved in the enquiry proceedings based on the oral evidence of B.W.3Edwin - Daftary, B.W.2-Sheshadrivasa, Cashier Clerk and nothing has been elicited by the petitioner in the crossexamination to disbelieve their version in the examinationin-chief, and corroborated with the documentary evidence

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produced at BEX-8 which discloses that the petitioner has remitted Rs.20,000/- on 22.11.2001 and paid interest at Rs.210/- on 07.02.2002 and on appreciation of the pleadings, oral and documentary evidence placed on record in the domestic enquiry, the Labour Court has rightly recorded the finding holding that the petitioner is guilty of charges and there is no perversity in the findings recorded by the Disciplinary Authority warranting any interference.

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(ii) The charges levelled against the petitioner was misappropriation and dishonesty, and there is loss of confidence on the petitioner as the bank is dealing with the public money and when it involves dishonesty, the Disciplinary Authority was justified in terminating the services of the petitioner by compulsory retirement from service and recording of the findings by the Tribunal does not warrant any interference.

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Having heard learned counsel for the parties,

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the point that arises for consideration is:

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“Whether the impugned order passed by the Tribunal warrants any interference in the present facts and circumstances of the case?”

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The reference by the Central Government for

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adjudication was,

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“Whether the management of State Bank of Mysore was justified in imposing punishment of compulsory retirement from service on Sri K.V. Nagendra with effect from 30.04.2003? If not, what relief Sri K.V. Nagendra is entitled?”

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The enquiry officer conducted enquiry, after affording sufficient opportunity and submitted report that the charges levelled against the petitioner was proved. The Disciplinary Authority considering the act of the petitioner being of a grave nature of dishonesty, imposed punishment of compulsory retirement. The Tribunal on the preliminary issue regarding the fairness of domestic enquiry, arrived at a conclusion that the domestic enquiry conducted against the petitioner was fair and proper.

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On 29.10.2001, Sheshadrivasa – Clerk Cashier filed a complaint stating that the petitioner-Nagendra had forcibly snatched away four (‘4’) sections of Rs.100/denomination notes from Edwin - Daftary from out of the cash given to him (Daftary) for stitching by B.T. Sheshadrivasa, Cashier Clerk and thereafter, the petitioner returned only two (‘2’) sections of Rs.100/- denomination notes to Daftary in front of Sheashadrivasa. Similar complaint was filed by Edwin - Daftary on 29.10.2001. Further, on 13.11.2001, another complaint was given by

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Sheshadrivasa as well as Edwin revealing/elaborating the facts narrated in the earlier complaint dated 29.10.2001. BEX-8 discloses that the petitioner has remitted an amount of Rs.20,000/- on 22.11.2001 and Rs.210/-paid as interest on the said amount of 07.02.2002. The remittance of amount by the petitioner adds to the narration of facts in the complaint by Seshadfivasa as well as Edwin - Daftary. The evidence of B.T.Sehadrivasa, Edwin, corroborated with BEX-8 indicates that the act of misconduct by the petitioner leading to loss of confidence which was reposed on him by the bank and therefore, the continuance in service by the bank in the said circumstances was justified. The charges levelled against the petitioner is based on the complaint of misappropriation of funds and dishonesty and the punishment of compulsory retirement is justified to the act of such a grave nature, as casual or minor acts may not warrant severe punishment. In the disciplinary proceedings, the doctrine of ‘preponderance of probabilities’ is applicable unlike criminal law where the

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guilt has to be proved beyond reasonable doubt, before the Disciplinary Authority.

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The Apex Court in Ajith Kumar Nag Vs. General Manager (PJ), Indian Oil Corporation² has observed that, two proceedings, criminal and departmental are entirely different, whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with Service Rules. The degree of proof which is necessary to order conviction is different from degree of proof necessary to record the commission of delinquency. The Rule relating to appreciation of evidence in two proceedings is also not similar. In criminal Law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused “beyond reasonable doubt, he cannot be convicted by a Court of law.” On the other hand, in a Departmental

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2 (2005) 7 SCC 764

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enquiry, penalty can be imposed on the delinquent officer on a finding recorded on the basis of “preponderance of probability” .

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The attempt/snatching of the amount by the petitioner was a serious one, the interference by the Labour Court is only when there is perversity in the order of the Disciplinary Authority and when the imposition of punishment is shockingly disproportionate to the gravity of misconduct. In the present facts, the charges levelled against the petitioner is for the act of misappropriation committed which involves dishonesty and for that reason the bank dealing with the public money has lost confidence on the petitioner, the Disciplinary Authority proceeded to impose punishment after providing sufficient opportunity to the petitioner.

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The reliance by the learned counsel for the petitioner in Anil Kumar’s case, this Court has no quarrel about the well settled proposition of law that the disciplinary enquiry is a quasi judicial enquiry held

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according to the principles of natural justice. In the instant case, there is no material forthcoming that the enquiry conducted against the petitioner is not fair and proper, whereas, on the other hand, the entire enquiry proceedings relating to the petitioner was in compliance with the principles of natural justice.

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The evidence of the Branch Manager - B.W.1; Cashier Clerk - B.W.2; B.W.3 – Edwin and the Assistant Manager - B.W.4 is coupled with the documentary evidence more particularly BEX-8, the remittance of amount of Rs.20,000/- establish the charges levelled against the petitioner are proved.

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In the absence of any victimization or unfair labour practice having been pleaded by the petitioner and there being no conspiracy proved between the branch officials to fix the petitioner with the charge of misappropriation or that the same has been done only to save their own skin, the actual cash shortage was found in the hands of the Cashier Clerk – B.W.2 due to the

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petitioner snatching 2 (‘2’) sections of Rs.100/denominations notes from Edwin – Daftary - B.W.3 while he was carrying the notes for stitching, there is no contradiction in the evidence of witnesses, nor in the complaint filed by them, the Tribunal was much right in holding that the order of the Disciplinary Authority does not suffer from any perversity. For the foregoing reasons, the point framed for consideration is answered against the petitioner and accordingly, this Court pass the following:

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ORDER

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