The High Court
Case Details
IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No. 02 of 2024 1. The Canara Bank through General Manager and Reviewing Authority, HR Wing, Head Office – Bengaluru, P.O. – J.C. Road, Bangalore South, P.S. – Bangalore, District – Bangalore, State – Karnataka. 2. The Deputy General Manager, Canara Bank, I.R. Section, Head Office – Bengaluru, P.O. – J.C. Road, Bangalore South, P.S. – Bangalore, District – Bangalore, State – Karnataka. 3. The Assistant General Manager, Canara Bank, HRM Section, Circle Office, P.P. Compound, Main Road, Ranchi, P.O. – G.P.O., P.S. – Chutia, District – Ranchi. Appellants are represented through its duly authorized signatory being Senior Manager, Canara Bank, Human Resource Management Section, Circle Office, Kaushalya Chambers, PP Compound, P.O. Ranchi GPO, P.S. Hindpidi, District Ranchi, State:- Jharkhand. …. Respondents/Appellants Versus Sanjeev Kumar, S/o – Sri Jagat Narayan Prasad, resident of Doranda, P.O. & P.S. – Doranda, District – Ranchi. …. Petitioner/Respondent --------- CORAM: HON’BLE THE CHIEF JUSTICE HON’BLE MR. JUSTICE DEEPAK ROSHAN For the Appellants: For the Respondent: --------- Mr. Pratyush Kumar, Advocate Mr. Prashant Kumar Srivastava, Advocate Mr. L.C.N. Shahdeo, Advocate Mr. Yash Raj Gupta, Advocate --------- Reserved on: 15.10.2024 Pronounced on:23.10.2024 Per M.S. Ramachandra Rao, C.J. 1) This Letters Patent Appeal has been filed by the Appellant/ Canara Bank challenging the judgment dt. 10.11.2023 in W.P.(S) No. 3050 of 2021. 2) The respondent had filed the said Writ Petition seeking quashing of order dt.31.3.2020 (Annexure -12) passed by the appellant no.3 imposing on the appellant the major penalty of “Removal from service which shall not be a disqualification for future employment”, and it’s confirmation vide order dt.30.12.2020 ( Annexure -14) in appeal by appellant no.2 and also by the Reviewing authority vide order dt.29.3.2021 ( Annexure -16). The background facts 3) The respondent was employed as a Manager in the Canara Bank ( for short ‘the Bank’). During the period he had worked as Manager in charge in the Pithoria branch of the said Bank from 27.7.2017 to 7.10.2018, it was alleged by the Bank that complaints had been received against him from various customers and local public representatives that he was demanding bribe for sanctioning loans especially KCC/KMCC loans and that he was delaying sanction for such loans, when the bribe was not given by the loanee. 4) To find out the genuineness of the said allegations, an investigation/preliminary inquiry was conducted, in which, according to the Bank, statements of employees, customers and middlemen were taken; and certain video and audio clips were secured which supported the allegation against the respondent that he had sought bribe for sanction of loans and had also pressurized the AEO to clear the said KCC/KMCC loans at the earliest. 5) The following 3 charges had been levelled against the respondent by the Bank vide Annexure-3 Charge Memo dt.16.8.2019 : 2 (i) The respondent was pressurizing the AEO to do the KCC/KMCC loan proposals which were routed through middlemen; (ii) The respondent was taking bribe from the loanee customers for sanction of KCC/KMCC loans through middlemen; (iii) A video clip was also showing that the respondent was accepting bribe from middlemen. The respondent was furnished the copy of the preliminary investigation/inquiry report dt.1.11.2018. 6) The respondent submitted explanation dt.29.8.2019 denying the charges. 7) The Disciplinary authority, i.e the Assistant General Manager of the Bank appointed (vide Annexure -5) a Divisional Manager of the Bank on 29.8.2019 as Inquiry Officer to conduct disciplinary inquiry against the respondent and also a Presenting Officer in terms of the Canara Bank Officers Employees’ (Discipline & Appeal) Regulations , 1976 ( for short the ‘Regulations’). 8) Both the Bank and the respondent examined witnesses in support of their respective stands in the disciplinary inquiry. 9) The Inquiry Authority submitted an inquiry report (Annexure 9) dt.21.3.2020 holding that all the 3 charges were proved against the respondent. 10) Thereafter copy of the inquiry report was furnished to the respondent vide Annexure-10 dt.21.3.2020 and he was asked to submit his 3 representation on the findings of the Inquiry Officer by the Disciplinary Authority i.e., The Assistant General Manager. 11) The respondent submitted his representation dt.31.3.2020 (Annexure-11) to the Disciplinary Authority disputing the findings of the Inquiry Officer against him. 12) After considering the same, the Disciplinary Authority passed order dt.31.3.2020 (Annexure-12) imposing punishment of “Removal from Service which shall not be a disqualification for future employment” on the respondent. 13) The respondent submitted appeal dt.12.5.2020 ( Annexure-13) to the Deputy General Manager, who was the Appellate Authority under the Regulations,contending that the said punishment is harsh and also raised contentions questioning the findings recorded by the Inquiry officer. 14) The Appellate Authority rejected the Appeal submitted by the respondent vide order dt.30.12.2020 (Annexure -14) after giving the respondent a personal hearing on 19.10.2020. 15) The respondent then filed a Review petitiondt.21.1.2021 (Annexure - 15) before the General Manager of the Bank . 16) The same was also rejected vide Annexure-16 on30.3.2021 by the Reviewing Authority. 17) Challenging these orders -Annexures 12, 14 and 16, the respondent then filed the WP (S) No.3050 of 2021. 4 The judgment of the learned Single Judge 18) The learned Single Judge, in the impugned judgment, held that the main complainant Sarfaraz Ansari had not been examined in the disciplinary inquiry by the appellants and also that the punishment by the appellants on the respondent imposed is harsh and unsustainable in law. 19) According to the learned single Judge, such a punishment could not have been imposed without seeking reply by way of 2nd show cause notice. 20) The learned single Judge held that the appellants-Bank has not been able to prove that any loss has been caused to it, and it had not contended that respondent had defalcated any amount; that it's entire case against the respondent was based on video clips and transaction of some amount, which itself is questionable, and no justifiable answer has been brought on record by the Bank. 21) The learned Single Judge then considered the sufficiency of evidence adduced in the disciplinary inquiry against the respondent by the Bank and opined as under: “ .. The three independent witnesses who had been examined are the neighbours of Nasim Ansari who had not applied for any loan. Secondly, the main witness i.e., Nasim Ansari, on whose statement the allegation has been made that the petitioner had taken bribe while sanctioning KCC loan, but during the regular inquiry, he clearly stated that he had not taken any money and the video clips were prepared only in order to 5 take revenge. He has clearly deposed that in anger and to take revenge and tarnish the image of the petitioner, video clips were prepared….”… 22) The learned single Judge went on to hold that merely on the basis of some video clips, the respondent should not have been made guilty of an offence unless the same corroborates with other facts; that there is no evidence of bribe; and non- examination of the complainant is a serious lacuna on behalf of the Bank.
Decision
23) The learned Single Judge allowed the Writ Petition and set aside the orders of the Disciplinary authority, the Appellate authority and the Reviewing authority (Annexures 12, 14 and 16 ) and remitted the matter back to the appellants on the aspect of quantum of punishment and further directed “ and /or grant of lesser punishment, if any, other than dismissal, removal , compulsory retirement or reduction in rank ….” The LPA 24) Challenging the above judgment of the learned single Judge, this appeal has been filed by the appellants. Contentions of counsel for appellants 25) Counsel for appellants contended inter alia that: (i) the learned single Judge erred in holding that it was incumbent on the part of the Bank to issue a 2nd show cause notice; (ii) the learned single Judge erred in holding that non -examination of the complainant is a fatal lacuna in the disciplinary inquiry held against the respondent by the appellants, but as per settled law, 6 such non examination of the complainant does not vitiate the disciplinary inquiry; (iii) that in exercise of power of judicial review under Art.226 of the Constitution of India, the learned Single Judge could not have reappreciated the evidence adduced in the disciplinary inquiry; that sufficiency of evidence adduced to prove the charge against the accused is beyond the purview of judicial review; (iv) that the learned Single Judge ought to have seen that serious charges are levelled against the respondent andthe essence of the charges levelled against the respondent was “loss of confidence” and since they were proved in the disciplinary inquiry, the Bank was justified in punishing him by removing him from service; (v) that the serious charges against the respondent were that (i) he was pressurizing the AEO of the Pithoria Branch to do KCC/KMCC loan proposals which were routed through middlemen apart from (ii) taking bribe from the loanee customers for sanctioning KCC/KMCC loan through middlemen; and there was a video clip also showing that he was accepting bribe from the middlemen; the said AEO- Mrs.Rani Prasad Sinha had sent a mail dt.31.10.2018 stating that she was pressurized by the respondent for sanctioning KCC/KMCC loans and that middlemen /agents were regularly coming to the Branch for follow up of these loans; and the learned single Judge has ignored this material evidence against the respondent; 7 (vi) the respondent himself had examined as his witness Naseem Ansari, who had admitted as DW-1 that he had recorded the video clip in which the respondent and the said witness were talking about the bribe money taken from some other middlemen, and so the authenticity of the video clip cannot be doubted; and so the impugned judgment deserves to be set aside. Contentions of counsel for respondent 26) The counsel for the respondent however contended that the impugned judgment did not suffer from any error warranting interference by this Court; that the non-examination of the complainant was indeed fatal to the case of the appellants; that the learned single Judge was entitled to hold that the evidence adduced in the disciplinary inquiry was not sufficient to prove the charge against the respondent; that he was also correct in doubting the authenticity of the video clip produced in the inquiry; and that the punishment imposed on respondent was harsh and disproportionate to the proved misconduct as no pecuniary loss was proved to have been caused to the appellant Bank. The consideration by the Court 27) Firstly, we are of the opinion that the learned single Judge erred in holding that a 2nd show cause notice had to be issued by the Bank to the respondent before imposing the punishment on the respondent. No provision in the regulations framed by the Bank providing for such a 2nd show cause notice before imposing the punishment is pointed out by the counsel for the respondent. 8 Infact after the 42nd amendment to the Constitution of India, 19761, the requirement of 2nd show cause notice qua aspect of penalty stood deleted from Art.311 (2) of the Constitution itself. This was noted in Managing Director, ECIL v. B.Karunakar2 and reiterated in State Bank of India v. Mohammed Badruddin3. As held in Ganga Yamuna Gramin Bank v. Devi Sahai4 , issuance of second show-cause notice for the purpose of obtaining the views of delinquent officer in regard to quantum of punishment is not a part of the common law principles of natural justice. Such a provision could be laid down by reason of a statute. The respondent does not enjoy any status. The service conditions of employees of the Bank are not protected in terms of unamended Article 311(2) of the Constitution of India. Therefore the learned Single Judge has erred in holding that 2nd show cause notice before imposing punishment should have been given to the respondent. 28) Next we shall consider whether non examination of the complainant is fatal to the action taken by the Bank against the respondent. No doubt Sarfaraz Ansari, the complainant has not been examined as a witness in the disciplinary inquiry. But in our opinion, such non examination is not fatal to the disciplinary inquiry when the other evidence adduced in the inquiry proves the charges. 1W.e.f .3.1.1977 2(1993)4 SCC 727 AT PARA 285 3(2019)16 SCC 69 4(2009) 11 SCC 266 : (2009) 2 SCC (L&S) 618, at page 270 9 In East India Hotels v. Workmen5 , the Supreme Court had held that it is not necessary that an outside complainant should be necessarily examined in a disciplinary inquiry and his non- examination will not make the inquiry invalid. It held: “6.It is not necessary that Sethi should have given evidence. His absence may be due to the fact that it was now for the employer to take action on his complaint and to protect their prestige and reputation which was mainly their affair. It is, however, apparent from the evidence that Sethi had complained to Pyare Lal and Pyare Lal speaks to what the respondent did and what happened in his presence. He said even when he asked the respondent what was in the bottle the respondent replied that it contained ‘NimbooPani’ and that he was pouring the contents in the tub. Bakshi also found whisky in the gingerale bottle. He says that Agrawal was testing something when he came. The bottle was sealed by him in the presence of Sethi, Agrawal and Pyare Lal. Agrawal also gave evidence and so did Lal Singh. When the respondent was asked to sign the envelope he refused to do so and when he was asked by Lal Singh why he was refusing to do so, his reply was “Hum Jab esme sign karangetob mar jayanga”. The respondent did not challenge this statement also. As the enquiry and the dismissal do not suffer from any defect and there is evidence from which the impugned conclusions can be drawn, we set aside the award of the Tribunal and substitute instead the finding that the dismissal of the respondent was justified. 7. The appeal is accordingly allowed, but in the circumstances without costs.” This was reiterated in State Bank of India v. Tarun Kumar Banerjee6where the Supreme Court had held: “ 5. …… The Tribunal, however, went on to say that even though the first respondent had not examined himself nor was any cross- examination directed at the witnesses to the question of his being a victim of conspiracy by the employees of the appellant Bank who are members of another rival union to which he belonged and placed heavy