K. A. Ashok Kumar v State Bank of Travancore and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MRS. JUSTICE MARY JOSEPH MONDAY, THE 2ND DAY OF APRIL 2018 / 12TH CHAITHRA, 1940 ## **WA.No. 2130 of 2017 IN OP. 22658/2001** AGAINST THE JUDGMENT IN O.P.No.22658/2001 of HIGH COURT OF KERALA DATED 21-12-2016 ## **APPELLANT** /PETITIONER:- K.A.ASHOK KUMAR RESIDING AT NANDANAM FORT, MAVELIKKARA. BY ADVS.SRI.K.M.ANEESH SRI.ADARSH KUMAR SRI.BIJU VARGHESE ABRAHAM SRI.DILEEP CHANDRAN SRI.K.SANTHOSH KUMAR (KALIYANAM) ## **RESPONDENTS** /RESPONDENTS: 1. STATE BANK OF TRAVANCORE HEAD OFFICE, TRAVANCORE HEAD OFFICE, TRIVANDRUM REPRESENTED BY ITS MANAGING DIRECTOR-695 001. 2. THE DISCIPLINARY AUTHORITY THE ASST.GENERAL MANAGER IV STATE BANK OF TRAVANCORE, ZONAL OFFICE ERNAKULAM, COCHIN-682 016. 3. THE APPELLATE AUTHORITY, STATE BANK OF INDIA ZONAL OFFICE, ERNAKULAM, COCHIN-682 016. BY SRI.P.RAMAKRISHNAN, SC, STATE BANK OF TRAVANCORE THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02-04-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **C.T.RAVIKUMAR & MARY JOSEPH, JJ.** ------------------------------W.A.No.2130 of 2017 -------------------------------Dated 2[nd] April, 2018 ## **JUDGMENT** ## **Ravikumar, J.** The unsuccessful petitioner in O.P.No.22658 of 2001 is the appellant. He filed the appeal challenging the judgment dated 21.12.2016 passed thereon by the learned Single Judge raising various grounds. The appellant was working as a Teller at the Mavelikkara Branch of the erstwhile State Bank of Travancore, the first respondent. Ext.P9 memo of charges was served on him in respect of an incident which occurred on 7.5.1996. After the culmination of the disciplinary proceedings the Enquiry Officer submitted Ext.P18 enquiry report. After complying with the formalities as per Ext.P22 order the disciplinary authority imposed the penalty of dismissal from service, on the appellant. Aggrieved by the same, he preferred an appeal. The appellate authority dismissed the appeal and confirmed the order of the disciplinary authority, as per Ext.P23. It is in the said circumstances that he filed the aforementioned writ petition. The learned Single Judge, after considering the rival contentions held that no grounds have been made out by the appellant herein for interfering with the order W.A.No.2130 of 2017 2 passed by the disciplinary authority as also the order whereby it was confirmed by the appellate authority. Consequently, the writ petition was dismissed. It is in the said circumstances that this appeal has been preferred. 2. We have heard the learned counsel for the appellant and also the learned counsel appearing for the respondents. 3. The learned counsel for the appellant contended that earlier, Ext.P1 memo of charges was issued to the appellant which carried an imputation of misconduct affecting the business and reputation of the Branch, misbehavior towards staff and customers etc. After conducting the enquiry based on Ext.P1 memo of charges he was dismissed from service as per Ext.P2. The appellant herein, filed O.P.No.8373 of 1996 challenging Ext.P2. As per Ext.P3 judgment dated 2.8.1996 passed thereon Ext.P2 was set aside. In Ext.P3 it was made clear that the said judgment would not stand in the way of the Bank taking appropriate action, after affording the appellant an opportunity of being heard. Ext.P3 judgment was unsuccessfully challenged by the respondents by filing W.A.No.1190 of 1996. After the dismissal of the said appeal vide Ext.P4 judgment dated 5.9.1996, the appellant filed Ext.P5 request for permission to rejoin duty on 6.9.1996. On the next day, he was suspended from service as per Ext.P6 memo on the W.A.No.2130 of 2017 3 allegation that a criminal case arising from Crime No.151 of 1996 of Mavelikkara Police Station is pending. It pertains to an incident which occurred on 7.5.1996 and Ext.P9 memo of charges was served on him in respect of that issue. The first contention of the petitioner is that the imputations in Ext.P9 are nothing but a cooked up story as nothing was mentioned about the said incident in Ext.P1 memo of charges. It is also contended that as per Ext.P10 judgment, the prosecution proceedings initiated against him were stopped and he was released under Section 258 of the Code of Criminal Procedure. In terms of the provisions under Section 258 Cr.P.C. such release shall have the effect of discharge. The contention is that the aforesaid circumstances would reveal that the authorities had acted with oblique motive. It is the further contention that a scanning of the oral testimonies of the witnesses would reveal that they are contradictory to each other. In short, according to the learned counsel for the appellant, oral testimonies of the said witnesses were not creditworthy. The learned counsel for the appellant further contended that there is delay in initiation of disciplinary proceedings. That apart, it is contended that non-production of vital documents, despite specific request, caused great prejudice to the appellant and therefore, on that sole ground, the impugned orders are liable to be interfered with. To buttress his W.A.No.2130 of 2017 4 contentions, the learned counsel relied on the decision of a Division Bench of the Karnataka High Court in **Sri Venkatesh Gururao Kuratti** v. **The Syndicate Bank** reported in **[ILR 2004 KAR 2240]** . 4. Per contra, the learned counsel appearing for the respondents submitted that the learned Single Judge has rightly declined to interfere with the orders passed by the appellate authority in Ext.P23 confirming the penalty imposed by the disciplinary authority under Ext.P22. It is further submitted that there is absolutely no basis for the contention that the disciplinary proceedings were initiated belatedly. It is also submitted by the learned counsel that immediately after the incident which led to the initiation of the disciplinary proceedings, occurred on 7.5.1996, Ext.P2 F.I.R. was registered on the basis of the F.I.S. lodged by the appropriate authority on the same day itself. Taking into account the pendency of the criminal case, disciplinary proceedings were not initiated. However, on 23.6.1999, Ext.P9 memo of charges was issued. Disciplinary proceedings were conducted after affording proper opportunity to the appellant. The fact that as per Ext.P10 judgment, the appellant was released in view of the provisions under Section 258 of the Cr.P.C., cannot be a ground to drop the disciplinary proceedings. It is also submitted by the learned counsel that no circumstances, which would vitiate the disciplinary proceedings, W.A.No.2130 of 2017 5 have been brought out by the appellant, warranting an interference with the orders passed by the disciplinary as well as the appellate authorities. In short, it is submitted that no interference is required with the judgment of the learned Single Judge. 5. There can be little doubt with respect to the position that an acquittal/discharge in a criminal proceedings initiated in respect of a particular incident, cannot be a bar for initiating disciplinary proceedings in respect of the same incident, if moral turpitude is involved in the alleged incident. In the case on hand, a perusal of Ext.P9 memo of charges would reveal that the appellant was charge sheeted for barging into the Chief Manager's cabin and assaulting the Deputy Manager of the Branch and abusing him while he was attending call over telephone. In fact, it was initiated before his release as per Ext.P10 judgment which in law, got the effect of discharge. In such circumstances, in the light of the settled position of law that discharge/acquittal in a criminal proceedings cannot be a ground for non-initiation of disciplinary proceedings or not proceeding with the disciplinary proceedings, the contention raised by the appellant based on Ext.P10 judgment, cannot hold good. It is therefore repelled. 6. As noticed herein before, yet another ground raised by the appellant is that the disciplinary proceedings were initiated W.A.No.2130 of 2017 6 belatedly. We will consider the question, whether there is any substance in the said contention. Admittedly, disciplinary proceedings were initiated in respect of the aforesaid incident that occurred on 7.5.1996. On the same day itself, Ext.P2 F.I.R. was registered. As per Ext.P10 judgment dated 16.8.1999, the appellant was released under Section 258 Cr.P.C. In fact, Ext.P9 would reveal that even prior to his releasing under Section 258 Cr.P.C., he was charge sheeted vide Ext.P9. If the respondents waited for the culmination of the criminal proceedings for sometime and then perceiving delay in the matter, decided to initiate disciplinary proceedings in parallel, they cannot be found fault with. At any rate, in view of the fact that they caused the registration of an F.I.R. in respect of the accident in question on the same day itself and during the pendency of the criminal proceedings itself, framed charges against him, would tend us to conclude that there is no merit in the contention that the proceedings were initiated belatedly. 7. Yet another contention was raised by the learned counsel that the non-production of the loan application pertaining to one Vijayamma, despite the request by the appellant, had caused great prejudice to the appellant. While considering the said question, it cannot be lost sight of the fact that the main allegation against the W.A.No.2130 of 2017 7 appellant is with respect to barging into the Chief Manager's Cabin and assaulting the Deputy Manager of the Branch and abusing him while he was attending call over telephone. Apart from contending so, the appellant had failed to establish the actual prejudice. When that be so, we are at a loss to understand as to how the non-production of the aforesaid documents could be assigned as a reason to contend that non-production of such documents had caused great prejudice to the appellant and therefore, the disciplinary proceedings are vitiated. 8. We will now consider the question whether the learned Single Judge was justified in declining to interfere with the orders passed in the disciplinary proceedings. Evidently, the learned Single Judge relied on a three Judge Bench decision of the Apex Court in **State of Andhra Pradesh** v. **S.Sree Rama Rao** [AIR 1963 SC 723], another three Judge Bench decision of the Apex Court in **State of Andhra Pradesh** v. **Chitra Venkata Rao** [(1975) 2 SCC 557] and also the decision of the Apex Court in **Hombe Gowda Educational Trust** v. **State of Karnataka** [(2006) 1 SCC 430] to dispute the contentions of the appellant. In **S.Sree Rama Rao's case** , the Apex Court set out the scope of interference with disciplinary proceedings in invocation of the powers under Article 226 of the Constitution of India. The relevant portion of this judgment has been extracted in the impugned judgment W.A.No.2130 of 2017 8 ## itself and it reads as follows:- "7. There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. 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. 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 W.A.No.2130 of 2017 9 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 proceedings for a writ under Article 226 of the Constitution." Virtually, this dictum was followed with agreement in **Chitra Venkata** **Rao's** case. In the said decision, it was held that the adequacy or sufficiency of evidence led on a point and inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. The learned Single Judge referred to the decision in **Hombe** **Gowda Educational Trust** 's case wherein under similar circumstances, a teacher, who was accused of beating up the Principal, was handed down with punishment of dismissal. The Apex Court upheld the orders in the disciplinary proceedings. In the said decision, the Apex court held as follows:- "19. Assaulting a superior at a workplace amounts to an act of gross indiscipline. The respondent is a teacher. Even under grave provocation a teacher is not expected to abuse the head of the institution in a filthy language and assault him with a chappal. Punishment of dismissal from services, therefore, cannot be said to be wholly disproportionate so as to shock one's conscience." 9. The scope of consideration of interference with the orders passed in disciplinary proceeding in invocation of the powers under Article 226 of the Constitution, has been reiterated by the Hon'ble Apex W.A.No.2130 of 2017 10 Court in a recent decision in **Union of India** v. **P.Gunasekharan** reported in [(2015) 2 SCC 610]. Going by the said decision, a reappreciation of the evidence is not permissible. Evidently, if some evidence to hold the incumbent guilty, is available, the finding of the authorities in disciplinary proceedings, are not available for interference in exercise of the powers under Article 226 of the Constitution of India. It is to be noted that the rigor of the standard of proof is different in disciplinary proceedings. Though it should be beyond reasonable doubt in criminal proceedings, what is required in disciplinary proceedings is only preponderance of probabilities. In the case on hand, as noticed hereinbefore, the charge is a grave one. The appellant was working as a Teller at the Mavelikkara Brach of the erstwhile State Bank of Travancore, the first respondent. The allegation going by Ext.P9 is to the effect that at about 1.30 p.m on that day, he barged into the Chief Manager's cabin and assaulted and abused the Deputy Manager of the Branch, who was attending an official call over telephone. To establish the charge, the three witnesses were examined. The learned counsel appearing for the appellant contended that there is inconsistency or their evidence is contradictory to each other. But, there is nothing on record, which would reveal that the finding of the authorities as also the learned Single Judge to the effect that all of them had deposed W.A.No.2130 of 2017 11 regarding the incident as also the manner in which it took place, are utterly perverse. In such circumstances, mere inconsistency in their version, cannot be a reason to hold that there was absolutely no evidence at all. The fact that the appellant had barged into the Chief Manager's cabin and regarding the consequential actions from his part, they had deposed while being examined. The manner in which or there is no consistency in the manner in which they narrated the incident, cannot be a reason to hold that they have not spoken about the incident. When they had spoken about the same, it cannot be said that there is absolute absence of any evidence touching the delinquency of the appellant. When there is such evidence on that aspect, in the light of the decision of the Apex Court **in S.Sree Rama Rao 's case, in Chitra Venkata Rao's** case and also in **P.Gunasekharan's case,** this Court cannot re-appreciate the entire evidence and substitute its view. The next question to be considered is whether the punishment imposed on the appellant is shockingly disproportionate to the gravity of the charges alleged against. We do not find any reason to hold that it is so. The entire aspects have been considered in detail by the learned Single Judge and upon such consideration, it was found by the learned Single Jude that there are no circumstances available to hold that the enquiry proceedings were vitiated owing to the failure to observe the W.A.No.2130 of 2017 12 principles of natural justice. The appellant could not establish that the enquiry proceedings were vitiated owing to the failure to adhere to the principles of natural justice. In such circumstances, in the light of the decisions referred supra and also the manner in which the learned Single Judge considered the entire aspects, we do not find any room for interfering with the impugned judgment. In the result, this appeal is liable to be rejected and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **MARY JOSEPH Judge** TKS/MBS // true copy // Sd/P.S. To Judge