(Prayer: This Writ Petition is filed under Articles 226 & 227 of Constitution of India praying to quash the order dated 02.08.2011 passed by R1 Vide Annexure-C & Etc.)
1. The petitioner has filed this petition seeking quashing of the order dated 02.08.2011 passed by the respondent No.1 in No. 479/PHRDD/2011 dated 02.08.2011 which is produced at Annexure-C and also for quashing of the intimation or direction issued by the respondent No.2 dated 02.08.2011 produced at Annexure-D.
2. I have heard arguments of the learned counsel for the petitioner as well as the learned counsel for the respondents and perused the records including the statement of objection filed before this Court on behalf of the respondent No.2.
3. The undisputed facts which are available on record are that, the petitioner was appointed as a Clerk in the respondent bank in the year 1980 and he became permanent employee later. Subsequently the petitioner was charged with the allegation that he has misappropriated the funds of the bank and thereby he has misconducted himself. On such allegations a charge sheet was issued on 19.01.2004. In fact, the petitioner has contested the said charges by filing his statement of objections. The enquiry was held and Enquiry Officer submitted a report holding that, the charges leveled against the respondent is proved. The said order of the Enquiry Officer was placed before the disciplinary authority, i.e., the respondent no.2 and in turn the respondent No.2 has imposed punishment of compulsory retirement of the petitioner. The said order was called in question before the appellate authority, i.e., the respondent no.1 and the respondent no.1 earlier has confirmed the order of the disciplinary authority. However, the said order of the appellate authority was called in question before this Court in W.P. No. 4737/2005. This Court vide orders dated 16.09.2008 has quashed not only the appellate authority order but also the disciplinary authority's order with enquiry report as per Annexure-A. Being aggrieved by the said order of this Court in the writ proceedings the respondent herein preferred W.A. No. 5102/2008 (S-DE). Vide order dated 09.02.2011 the Division Bench of this Court has allowed the said appeal in part by setting aside the order of the learned Single Judge to the extent of quashing of Annexure-A, i.e., the order/ proceedings of the disciplinary authority. However, the order of the disciplinary authority was maintained and consequently the order passed in the writ petition setting aside the appellate authority order has been confirmed. In pursuance of the same, the matter was remitted to the appellate authority for reconsideration of the appeal. Thereafter, opportunity was given to the petitioner before the appellate authority and orders impugned dated 02.08.2011 was passed by the appellate authority interfering with the orders of the disciplinary authority modifying the imposition of punishment on the petitioner.
4. The appellate authority has set aside the order of the disciplinary authority in ordering for compulsory retirement of the petitioner. However, the appellate authority has directed the disciplinary authority to award punishment to the extent of reduction of two increments with cumulative effect and reinstatement without backwages or any other benefits.
5. The said order of the appellate authority is called in question before this Court. It is also to be noted that, subsequent to the orders of the appellate authority, the KVG Bank, i.e., respondent no.2, has issued a call letter to the petitioner dated 02.08.2011 calling upon the petitioner to join duty as per the orders of the appellate authority with certain conditions.
6. Learned counsel for the petitioner strenuously argued before this Court that, he has no grievance with regard to the disciplinary authority's order and subsequently the appellate authority's order in reducing two increments and with regard to reinstatement of the petitioner but he only concentrated his arguments with regard to denial of backwages and as well as other benefits which enure to the benefit of the petitioner consequent to his retirement. His argument is that, after the order of the appellate authority directing the petitioner to be reinstated, unreasonable conditions have been imposed by the respondent No.2 so as to prevent the petitioner from joining the duty. He further contends, neither the disciplinary authority nor the appellate authority have decided the suspension period as to how it has to be treated in lieu of Rules 46 of the Malaprabha Grameena Bank Service Regulations, 2001. Further he contends before the Court that the respondent No.2 has called upon the petitioner to pay backwages the gratuity amount paid tuned to Rs.23,700/- along with interest at 10% and also stated that if he is unable to refund the amount as above, he may inform the respondent no.2 by furnishing an irrevocable letter of authority to recover the said gratuity amount with 10% interest till payment of due gratuity payable to him after superannuation or retirement. These two important aspects have been mainly concentrated by the learned counsel to argue that the petitioner was unreasonably prevented from joining the duty. Therefore, he contends that the order of the appellate authority may be modified granting backwages and as well as treating the suspension period as the work done period and also by quashing the call letter dated 02.08.2011.
7. Per contra, learned counsel for the respondent strenuously contends before this Court that, this is not the first case where the petitioner has been imposed with the punishment. Even at the earlier stage also he was found guilty and one increment was permanently cut off from his salary and further he was warned and he has undertaken actually to work in the bank honestly and sincerely. However, thereafter also he has committed similar offences of misappropriating funds of the bank, etc. Therefore, the petitioner is not entitled for any leniency by this Court.
8. Secondly, he contends that, though the call letter dated 02.08.2011 was issued, the respondent NO.2 never prevented the petitioner from joining the duty. Though the gratuity amount was ordered to be refunded but a clause was appended at condition no. 5 that he need not pay that amount but he can give letter on joining the duty to adjust the amount at the time of superannuation of the petitioner. Therefore, it cannot be said that, by means of that later he was prevented from joining the duty.
9. Lastly, he contended that the appellate authority has in detail considered the factual aspects and as well as the legal aspects and shown a great leniency in favour of the petitioner in reducing the punishment from that of compulsory retirement to the cutting of two increments with cumulative effect without backwages and other benefits. Therefore, the appellate authority has very sensibly considered the allegations made against the petitioner and also the enquiry report and disciplinary authority orders and with cautiousness it ordered that the petitioner is not entitled for any other benefits except the reinstatement that may be beneficial at the time of superannuation of the petitioner.
10. After hearing the arguments of the learned counsel and after careful perusal of the entire materials on record, it is evident that the enquiry officer has held that, the petitioner is guilty and thereby misappropriation alleged against the petitioner has been concluded. The disciplinary authority also reconsidered the factual aspects after giving opportunity to the petitioner and also re-evaluating the oral and documentary evidence, has come to the conclusion that the guilt of the petitioner has been proved. Therefore, it imposed the punishment. Subsequently, on two occasions the appellate authority has got opportunity to deal with the factual aspects and legal aspects in this matter and at the first instance it confirmed the orders of the disciplinary authority and at the second instance it interfered with the order of the disciplinary authority in reducing the punishment, but holding that, the guilt of the petitioner has been unequivocally proved.
11. What is evident from the above said aspects are that the factual aspects which are alleged with regard to the misconduct, and proof given during the course of enquiry, has been conclusively established by accepting the same by the Disciplinary and appellate authority, by their concurrent findings. Therefore, so far as the factual aspects are concerned, this Court while exercising power under the writ jurisdiction, cannot be lightly interfered or even looked into when it is not sought for. What is sought above in the writ petition is that, the order of the appellate authority but not the disciplinary authority or enquiry report in any manner. Therefore, when once the misconduct is established, ultimately the Court has to see whether imposition of punishment is disproportionate to the guilt of the petitioner.
12. The learned counsel for the respondents in this context has relevantly relied upon various rulings of the apex Court, in my opinion, they are to be referred.
12(a). In a decision reported in (2003) 3 SCC 605 (Regional Manager, U.P.S.R.T.C. V/S Hoti Lal), the apex Court has categorically observed that,
"if the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable."
12(b). In another ruling reported in (2013) 12 SCC 372 (Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) and another Vs. Rajendra Singh), wherein the apex Court has observed that,
"the disciplinary and appellate authorities who are the competent authorities to decide nature of punishment to be given to a delinquent employee keeping in view the reasons and misconduct committed by such an employee. Courts cannot assume and usurp the function of the Disciplinary Authority."
12(c). Last but not the least, another decision relied upon by the learned counsel is reported in 2011 (12) SCR 690 (Panchmahal Vadodara Grameena Bank vs. D.M. Parmar) wherein the apex Court has observed that,
"when the findings are based on adequate material referred to in the inquiry report and these materials are mainly documentary records and the parties have already contested proceedings and considering the evidence in support of the findings, the disciplinary authority and the appellate authority to decide the matter, the High Court can not interfere with such findings in exercise of power under judicial review under Article 226 of the Constitution of India."
13. On perusal of the above said rulings and the factual aspects of this matter, it is clear that the factual matrix has been concluded throughout by the Enquiry Officer, as well as the disciplinary authority and thereafter finally by appellate authority. When all these authorities have specifically come to the conclusion that the petitioner was guilty of the misconduct alleged against him with regard to misappropriation of amount and also he caused loss to the banking authorities and that it is not only an isolated circumstance wherein he was found guilty but earlier also he was found committing misconduct, and imposition with punishment also withholding of one increment earlier are all not disputed.
14. Thus, facts clearly disclose that, even inspite of granting one opportunity he has not realized and committed himself to work honestly in the bank. Thereafter also he committed the similar offences and he was found guilty by the competent authorities.
15. Under the above said circumstances, in my opinion, the order of the disciplinary authority or the appellate authority does not call for interference so far as the imposition of punishment is concerned.
16. Last but not the least with regard to awarding of backwages and other reliefs. It is quite evident that, the disciplinary authority harshly imposed punishment of compulsory retirement. However, the appellate authority has reduced the same to withholding of two increments. It is the fundamental duty of the petitioner as soon the appellate authority has passed the order, he should have joined the duty by even executing irrevocable letter of authority to consider the payment of gratuity at the time of his superannuation. On meaningful reading of the call letter dated 02.08.2011, there was no force by the banking authorities to pay that amount, they have given alternative opportunity to him to
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give a letter of authority at least to consider the payment of said gratuity at the time of his superannuation. Therefore, I do not find any strong reasons to accept the argument of the leraned counsel for the petitioner, that petitioner was in any manner deliberately prevented by the respondent from joining the duty. Apart from it, with regard to the leave entitlement or with regard to the treatment to the suspension period, all those things will come into picture only in the event of reinstatement of the petitioner. If he does not want to work in consequence with the order of the appellate authority, he forfeits all his right and even for the suspension period, as work done in the bank. On the other hand, very cautiously the appellate authority has specifically stated that he is not entitled for any backwages or any other reliefs that includes the relief of treating the said suspension period as work done period. Therefore, I do not find any infirmity in the order of the appellate authority. Particularly while exercising writ jurisdiction, a reasoned order by the enquiry officer and the disciplinary authority and appellate authority, cannot be interfered with unless it is shown that there is any illegality or prejudice has been occurred to the petitioner and imposition of penalty is so shocking. With these observations, I am of the opinion, the writ petition is liable to be dismissed. Accordingly, it is dismissed.