V.P. Kunhikannan Messenger v. North Malabar Gramin Bank and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE C.K.ABDUL REHIM** **WEDNESDAY, THE 5TH DAY OF NOVEMBER 2014/14TH KARTHIKA, 1936** ## **WP(C).No. 28473 of 2005 (M)** ## **----------------------------** ## **PETITIONER:** - **------------------** **V.P.KUNHIKANNAN MESSENGER, E.NO.901, NORTH MALABAR GRAMIN BANK, PUTHIYATHERU BRANCH, KANNUR-11.** ## **BY ADV. SRI.M.SASINDRAN** ## **RESPONDENT(S):** ## **--------------** **1. THE NORTH MALABAR GRAMIN BANK BANK ROAD, KANNUR, REP. BY ITS CHAIRMAN AND, MANAGING DIRECTOR.** **2. THE CHAIRMAN, NORTH MALABAR GRAMIN BANK, HEAD OFFICE, KANNUR.** - ***3. KERALA GRAMIN BANK** - **KGB TOWERS, UP HILL, MALAPPURAM-676 505. REPRESENTED BY ITS CHAIRMAN.** **4. THE CHIEF MANAGER, KERALA GRAMIN BANK, NMGB TOWERS, PALLIKKUNNU, KANNUR-670 004.** ## **R1 & R2 BY SRI.DEVAN RAMACHANDRAN, SC, N.M.G. BANK.** ***[R3 & R4 ARE IMPLEADED AS PER ORDER DATED 25-09-2013 IN IA No.12425/2013.]** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05-112014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **AMG** ## W.P (C) No.28473/2005 ## **APPENDIX** ## **PETITIONER'S EXHIBITS** EXT- P1TRUE COPY OF THE RELEVANT PAGES OF THE NORTH MALABAR GRAMIN BANK (OFFICERS AND EMPLOYEES) SERVICE REGULATIONS 2000. EXT- P2TRUE COPY OF THE CHARGE SHEET DATED 16-08-2002. EXT- P3TRUE COPY OF THE ENQUIRY REPORT DATED 20-01-2004. EXT- P4TRUE COPY OF THE SHOW CAUSE NOTICE DATED 19-05-2004. EXT- P5TRUE COPY OF THE REPLY DATED 22-06-2004. EXT- P6TRUE COPY OF THE ORDER DATED 31-03-2005. EXT- P7TRUE COPY OF THE APPEAL DATED 07-04-2005. EXT- P8TRUE COPY OF THE JUDGMENT IN WPC No.11344/2005 DATED 08-04-2005. EXT- P9TRUE COPY OF THE ORDER No.3/CP/PAIRD/2005 DATED 07-05-2005. EXT- P10TRUE COPY OF THE REVIEW APPLICATION DATED 19-05-2005 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT- P11TRUE COPY OF THE ORDER PASSED BY THE GENERAL MANAGER DATED 19-05-2005. EXT- P12TRUE COPY OF THE ORDER PASSED BY THE GENERAL MANAGER DATED 19-05-2005. EXT- P13TRUE COPY OF THE REPRESENTATION DATED 16-07-2005. EXT- P14TRUE COPY OF THE ORDER DATED 23-07-2005 ISSUED BY THE 2ND RESPONDENT. EXT- P15TRUE COPY OF THE ORDER DATED 07-10-2005 ISSUED BY THE 2ND RESPONDENT. EXT- P16TRUE COPY OF THE COMMUNICATION ISSUED BY THE CHIEF MANAGER OF THE KERALA GRAMIN BANK DATED 19-08-2013. ## RESPONDENTS' EXHIBITS NIL True copy P.A. To Judge AMG C.K.ABDUL REHIM,J. ----------------------------------------WP(C).NO. 28473 of 2005 ---------------------------------------Dated this the 5[th] day of November, 2014 ## JUDGMENT The petitioner while working as Messenger in the 1[st] respondent Bank, was issued with Ext.P2 Charge Sheet alleging that he along with another person had created Demand Draft forms of the Bank by committing forgery and by utilising such Demand Draft forms for issuing forged DDs to a person named O.K.Pavithran which was collected and credited to the payee's account and withdrawn by him and thereby defrauded the Bank with an amount of Rs.97,000/-. An enquiry was conducted under the North Malabar Gamin Bank (Officers and Employees) Service Regulations, extract of which is produced as Ext.P1. In Ext.P3 report of enquiry it was found by the Enquiry Officer that no oral or documentary evidence was adduced which could substantiate the charges. Therefore, it is found that the charges levelled against the petitioner are not proved except that the CBI had investigated into the case implicating the petitioner as accused. WP(C).No.28473/2005 2 The disciplinary authority in the 1[st] respondent Bank had issued Ext.P4 notice intimating about his disagreement with the findings contained in the enquiry report. The petitioner was required to show cause as to why punishment of dismissal from service shall not be awarded. The petitioner submitted a detailed explanation as per Ext.P5. But the disciplinary authority had issued Ext.P6 proceedings confirming the proposal, finding that guilt of the petitioner stands proved through the enquiry conducted, based on the materials and evidence produced. The petitioner filed appeal before the 2[nd] respondent, the appellate authority as per the Regulations. In Ext.P9 order, the appellate authority found that there is no merit warranting interference with the disciplinary proceedings. However, a lenient view was taken on humanitarian consideration and also considering the contention that the petitioner lost opportunity to take efficacious defence due to expiry of about 10 years time in the interregnum. The appellate authority had reduced the punishment of dismissal from service to fine of Rs.97,000/-, being the amount equivalent to pecuniary loss caused to the Bank. The petitioner thereafter submitted a review before the 2[nd] respondent requesting to WP(C).No.28473/2005 3 exonerate him from the liability for payment of the pecuniary loss alleged to have been sustained by the 1[st] respondent Bank. In Ext.P14 the request for review of the decision was declined. It is challenging Ext.P9 and P14, this writ petition is filed. 2. Learned Standing Counsel appearing on behalf of the respondents have raised a preliminary issue with respect to maintainability of this writ petition. It is pointed out that, being an employee of the 1[st] respondent Bank, the petitioner is a 'workman' coming under section 2(s) of the Industrial Disputes Act and the disciplinary action as well as punishment imposed are matters coming within the ambit and scope of an Industrial Dispute as defined under section 2A of the said Act. Since there is an efficacious remedy provided under the Act for adjudication of such disputes, this writ petition cannot be entertained, is the contention. Learned Standing Counsel had referred to a judgment of this court in WP(C). No.19913/2005 dt. 31.1.2014, wherein a learned judge of this court while dealing with an identical issue of the same Bank had observed that, availability of such a remedy is to be taken into consideration for entertaining a writ petition under Article 226. Per contra, learned WP(C).No.28473/2005 4 counsel for the petitioner had placed reliance on a decision of this court in **Agricultural Income Tax and Sales Tax Officer vs. Tata Tea Ltd. (2002 KHC 458)** wherein a Division Bench of this court observed that, summary dismissal on the ground of availability of efficacious and alternate remedy, after admission of the writ petition and after pendency of the same for a considerable period, is not justifiable. 3. It is true that the petitioner could have adjudicated the issue before the Industrial Tribunal by raising a dispute under section 2 A. In such a case the entire evidence adduced during the enquiry could have been re-evaluated and re-appreciated. Probably the petitioner might have got a further opportunity to adduce evidence also. Whereas in this writ petition filed under Article 226, the scope of judicial review is too limited. The decision impugned can be challenged only on the basis of its constitutional validity and other legal issues. However it remains trite law that availability of an efficacious remedy is not an absolute bar in exercising the discretionary jurisdiction vested on this court. Having considered the fact that the writ petition was admitted in the year 2005 and it was pending for a quite WP(C).No.28473/2005 5 long period, this court is not inclined to refuse examination of the scope of judicial review on the basis of availability of the remedy before the Industrial Tribunal. 4. Among the grounds raised challenging the impugned orders, the petitioner points out that the allegation of forgery pertains to the year 1992, whereas Ext.P2 Charge Sheet was issued only in the year 2002. The inordinate delay of 10 years occurred in initiating the disciplinary action, will vitiate the entire action, is the contention. Learned Standing Counsel pointed out that, with respect to the forgery and fraud committed by the petitioner along with others, a case was registered by the CBI and the investigation was proceeded. Learned Standing Counsel has drawn attention of this court to Regulation 42 in Ext.P1, wherein it is provided that, with respect to corrupt practices when the Bank is of the opinion that an investigation into the allegation cannot be conveniently undertaken by the Bank, such investigation will be entrusted with the CBI or with such other authority as may be provided. It is further pointed out that in case the investigation report establishes a prima facie case of instituting disciplinary action, the same can be proceeded on the WP(C).No.28473/2005 6 face of such investigation report. On the facts it is submitted by the learned Standing Counsel that, the CBI has registered a case implicating the petitioner as accused along with others and an investigation was proceeded. It is because of pendency of the CBI investigation that the disciplinary action was not initiated. However, it is mentioned that the CBI had informed that they could not prosecute the petitioner by laying charge sheet, because of non availability of prosecutable evidence in the matter and recommended to initiate disciplinary action. This court is of the opinion that existence of an investigation conducted by the CBI and the pendency of such an investigation can be considered as a reasonable ground which restrained respondents from initiating the disciplinary action. Therefore the proceedings cannot be stated as vitiated based on the alleged delay caused. 5. Learned counsel for the petitioner had raised vehement arguments that there occurred violation of principles of natural justice, because the disciplinary authority had failed in issuing notice to the petitioner enumerating specific grounds for disagreement with the findings contained in the enquiry report. WP(C).No.28473/2005 7 But Ext.P4 would indicate that the disciplinary authority had elaborately mentioned that he had carefully gone through the entire proceedings of the enquiry and that the evidence adduced therein would clearly show that the petitioner had involved in the fraud committed, willfully and knowingly, in collusion with others. It is further stated that the documents produced in the enquiry, which pertains to the CBI investigation, which were marked from the side of the management, would clearly indicate guilt of the petitioner and his involvement in the fraud, proved beyond any reasonable doubt. The disciplinary authority had specifically referred to one of such documents produced in the enquiry, his sworn statement of an officer taken under section 164 of the Cr.P.C. The disciplinary authority had indicated that the conclusions arrived by the enquiry officer cannot be accepted, because direct evidence to prove the charges as in a criminal case is not necessary in the departmental enquiry. It is observed that, strict rule of evidence contemplated under the Evidence Act do not apply in a disciplinary proceedings and the standard of proof required is not regress as required in a criminal case. The authority found that the nature of proof required in a disciplinary WP(C).No.28473/2005 8 proceedings is one of preponderance of probabilities and is not essentially proved as in a criminal case. In the light of such reasons the disciplinary authority recorded that he is disagreeing with the findings contained in the enquiry report and had issued a show cause notice. Learned counsel for the petitioner placed reliance on 2 decisions of this court in **S.Gopalakrishnan Nair vs. Secretary to Government and another (2007 (3) KHC 660)** and **Somarajan C.G. vs. Joint Registrar of Cooperative Societies and others (2009(3) KHC 304).** In both the cases it is held that, when the disciplinary authority issues a notice to show cause against proposal to disagree with the findings of the enquiry officer, the reasons forming the foundation of the decision to issue such show cause notice should be notified to the delinquent. It is held that disagreement can only be after putting the delinquent on notice and after disclosing to him the tentative grounds on which it is proposed to disagree with the findings of the enquiry officer. But in the case at hand, as observed above, Ext.P4 contains narration of the reasons upon which the disciplinary authority had tentatively arrived at a conclusion to disagree with the findings of the WP(C).No.28473/2005 9 enquiry officer. Therefore this court is not inclined to accept the contention that there occurred violation of any principles of natural justice. 6. The petitioner raised a further contention that the imposition of fine by the appellate authority to the tune of Rs.97,000/-, being equivalent to the pecuniary loss caused to the Bank, is not sustainable, because such a punishment is not contemplated under Ext.P1 Regulations. Regulation 38 deals with penalty which can be imposed. Sub clause (ii) of Regulation 38 provides that penalty can be imposed on an employee and among the penalties for major punishment, is one of fine. In Ext.P9 the appellate authority had categorically mentioned that, taking a lenient view in the matter the punishment of dismissal from service is commuted and the petitioner is “fined” with Rs.97,000/-, being the amount equivalent to the pecuniary loss caused to the Bank. Therefore it is evident that the punishment has been reduced from that of dismissal from service to 'fine'. The basis for the quantum of fine imposed is adopted as the pecuniary loss caused to the Bank. This court do not find any irregularity in imposing fine to the tune of such amount, WP(C).No.28473/2005 10 because the relevant Regulation prescribes no limit with respect to the quantum of fine; nor it does prescribe any basis for fixation of such quantum. 7. Lastly learned counsel for the petitioner argued that there is procedural violation with respect to strict compliance of Regulation 42. But on a perusal of Regulation 42 it is evident that the specific procedure contemplated therein is with respect to allegations of corrupt practice. But in the case at hand the charge sheet contains no allegation of corrupt practice. On the other hand the charges are one of forgery and fraud committed by the petitioner along with others. 8. Under the above mentioned circumstances this court is of the considered opinion that there exists no convincing grounds for interference in exercise of power of judicial review vested under Article 226 of the Constitution. 9. Learned counsel pointed out that the amount of fine imposed had already been recovered from the salary of the petitioner. He further observed that Ext. P16 notice was issued by the 1[st] respondent Bank claiming payment of interest to the tune of Rs.20,045/-. It is contended that, recovery of interest on WP(C).No.28473/2005 11 the ground of delayed payment of fine is not contemplated under the Regulations and the demand is not sustainable. I find merit in the contention, because there is no specific provision enabling realisation of interest if there occurred delay in payment of fine. More over Ext.P9 order does not stipulate any time limit for payment of the amount of fine. Further it is noticed that the petitioner was reinstated in service by virtue of Ext.P9, even without insisting for payment of the amount of fine. Therefore this court is of the opinion that the respondent Bank is not entitled to recover any amount of interest as mentioned in Ext.P16. In the result the writ petition is dismissed, subject to the observations contained hereinabove with respect to realisation of interest. ## C.K.ABDUL REHIM, JUDGE Pmn/ WP(C).No.28473/2005 12