Samir Tudu v. Chairman, Canara Bank & Ors.

It is further case of the petitioner that G.C. Keshri and S.K. Singh, who were the investigating officers, were not made witnesses on behalf of the Bank Management in the departmental proceeding despite repeated request of the petitioner as well as on his behalf. The proceeding was conducted by the Senior Manager, Canara Bank, Ranchi, who held the petitioner guilty of charges levelled against him. On the basis of findings of the inquiry officer, the disciplinary authority, without scrutinizing the said finding and without discussing the same, accepted the same and held the petitioner guilty of charges and passed order of punishment of removal of the petitioner from service on 29.09.2009. Being aggrieved, petitioner preferred Appeal before the Executive Director (Appellate Authority) which also stood dismissed without assigning any cogent reason. Being aggrieved, petitioner has knocked door of this Court. SUBMISSION ON BEHALF OF PETITIONER

#6. Mr. Pradip Kumar, learned counsel appearing for the petitioner strenuously urges that finding of the enquiry officer was not fit and as such the same is not acceptable. The main witnesses who investigated the matter, were neither produced nor allowed to be cross examined by the petitioner on the ground that they have resigned from the service. The post facto investigation report was also not supplied to the petitioner. The proceeding was conducted without following the procedure laid down as per provision in Regulation 6 of the Canara Bank Officers Employees (Discipline and Appeal) Regulations, 1976 which caused serious prejudice to the petitioner in his defence. Learned counsel further argues that no other evidence was adduced to prove the charges. The documents were also not proved by the witnesses and as such the finding submitted by the Inquiry Officer is illegal and the same cannot be relied upon for passing final order. Learned counsel further argues that the appeal preferred by the petitioner before the Executive Director was dismissed without assigning any cogent reason and application of RC 3 mind. Learned counsel further argues that the appellate authority has opined that no illegality was committed by the petitioner in sanctioning loan to the persons who applied for the same and it has further been opined that there might have been some slip of pen in up-keep of loan application by which no loss to the Bank was found. Ignoring their own finding, the appellate authority has dismissed appeal preferred by the petitioner. Learned counsel further argues that during enquiry, no evidence of moral turpitude could be proved against the petitioner nor he was found guilty for misappropriation of Bank money. Petitioner has been falsely dragged and false charges have been levelled against him and punishment awarded to him is disproportionate to the charges levelled against him. The loss incurred to the Bank has already been recovered from the G.P. F. of the petitioner though there is no loss to the Bank. Petitioner has good grounds and the writ petition is fit to be allowed.

#7. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: (I) State Bank of Patiala Vs. S.K. Sharma, reported in (1996) 3 SCC 364; (II) Chairman, State Bank of India & Anr. Vs. M.J. Jamesh, reported in (2022) 2 SCC 301; & (III) Rajendra Yadav Vs. State of Madhya Pradesh & Ors., reported in (2013) 3 SCC 73. SUBMISSION ON BEHALF OF RESPONDENTS Per contra, counter-affidavit has been filed on behalf of respondents. Mr. Anoop Kumar Mehta, learned counsel appearing on behalf of the respondents – Bank argues that there was gross violation of laid down system and procedure of the Bank while sanctioning/ enhancing the credit limit to the parties such as pre sanction, appraisal, documentation, disbursement and post sanction follow up. Most of the loan accounts have become NPA for which Certificate Cases have been filed for recovery of dues and huge financial loss to the extent of 76.82 lacs. have been incurred which clearly proves that the matter is not merely a simple slip of pen. Petitioner had failed to discharge his duties

#9. RC 4 with utmost honesty and integrity and acted in a manner which is unbecoming of a Bank Officer. There is no scope for interference of finding of facts recorded by the Inquiry Authority accepted by the Disciplinary Authority and upheld by the appellate authority. The departmental proceeding was conducted in fair and transparent manner giving due opportunity to the petitioner during all the stages. The petitioner was given sufficient opportunity to defend himself in the departmental proceeding but he refused to participate in the enquiry and cross examine the Branch In-charge, Ramgarh Cantt Branch, who was examined as a witness. Petitioner has not been able to prove that any documents demanded by him were ever denied by the Bank.

#10. Learned counsel further places reliance upon the following Judgments: (i) Dy. Inspector General of Police Vs. K.S. Swaminathan reported (ii) (iii) in (1996) 11 SCC 498; Rajiv Gupta Vs. Union of India and others reported in MANU/CA/ 0770/2007. Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lal reported in (2010)5 SCC 775 FINDINGS OF THE COURT

#11. Be that as it may, having heard the rival submissions of learned counsel for the parties and upon perusal of the documents brought on record, this Court is of the considered view that no interference is warranted in the instant writ petition for the following facts and reasons: I) Admittedly, the guilt against the petitioner has been proved in the departmental proceeding and the punishment inflicted by the disciplinary authority has been affirmed by the appellate authority. II) Nothing has been brought on record to show that any foully was committed by the respondents in the entire departmental proceeding. III) The petitioner has failed to produce any evidence to show perversity on the part of the enquiry officer. IV) Law is well settled that when there is concurrent finding by the two authorities, the Court should not interference unless and until perversity is shown. The evidence cannot be reappraised RC 5 by the High Court sitting under Article 226 of the Constitution of India. As such, the Court should refrain itself from reappraising the evidence which has been set at rest by the disciplinary authority as well as by the appellate authority. V) The respondent-bank has lost its confidence in the employee and as such, removal was the only punishment to get rid of such employee who wants to dupe the employer. It hardly matters whether the charges are of misappropriation of a single farthing or of hundred Crores. The misconduct once proved in the departmental proceeding cannot be re-appreciated by the High Court. VI) Once the departmental enquiry is held as legal and valid and there is no violation of principles of natural justice, the only question left out to be decided by this Court is the quantum of punishment.

#12. It is well settled principle of administrative jurisprudence that in judicial review, the Court is concerned with the processes and procedures and not with sufficiency of grounds for initiating the disciplinary proceedings, adequacy of evidence etc. The Hon’ble Apex Court, in the case of Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lal reported in (2010)5 SCC 775 has been pleased to hold that the High Court or a Tribunal cannot interfere with the discretion exercised by the disciplinary authority and/or on appeal the appellate authority with regard to imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the disciplinary authority or appellate authority is dependent on host of factors such as gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts. There is clear finding that there was gross violation of laid down RC 6 system and procedure of the Bank while sanctioning/ enhancing the credit limit to the parties. Most of the accounts were NPA for which certificate cases have been filed for recovery of dues and huge financial loss has been caused to the Bank to the extent of Rs.76.82 Lacs.

#13. The Hon'ble Apex Court in case of Union Bank of India Vs. Vishwa Mohan, reported in (1998) 4 SCC 310 has held as under:- “12. After hearing the rival contentions, we are of the firm view that all the four charge-sheets which were enquired into relate to serious misconduct. The respondent was unable to demonstrate before us how prejudice was caused to him due to non-supply of the enquiry authority’s report/findings in the present case. It needs to be emphasised that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank officer. If this is not observed, the confidence of the public/depositors would be impaired. It is for this reason, we are of the opinion that the High Court had committed an error while setting aside the order of dismissal of the respondent on the ground of prejudice on account of non-furnishing of the enquiry report/findings to him.” Further, in the case of Damoh Panna Sagar Rural Regional Bank Vs. Munna Lal Jain, reported in (2005) 10 SCC 84, the Hon’ble Apex Court has held that: inseparable “17. A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum- Regional Manager v. Nikunja Bihari Patnaik, there is no defence available to say that there was no loss or profit resulting in case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one’s authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. RC 7 Further in case of Karnataka SRTC v. A.T. Mane, reported in (2005) 3 SCC 254, the Hon’ble Apex Court has held as under: “12. Coming to the question of quantum of punishment, one should bear in mind the fact that it is not the amount of money misappropriated that becomes a primary factor for awarding punishment; on the contrary, it is the loss of confidence which is the primary factor to be taken into consideration. In our opinion, when a person is found guilty of misappropriating the corporation’s funds, there is nothing wrong in the corporation losing confidence or faith in such a person and awarding a punishment of dismissal.” In the case of Divisional Controller, N.E.K.R.T.C. v. H. Amaresh, reported in (2006) 6 SCC 187, the Hon’ble Apex Court has held as under: “18. In the instant case, the misappropriation of the funds by the delinquent employee was only Rs 360.95. This Court has considered the punishment that may be awarded to the delinquent employees who misappropriated the funds of the Corporation and the factors to be considered. This Court in a catena of judgments held that the loss of confidence is the primary factor and not the amount of money misappropriated and the sympathy or generosity cannot be a factor which is impermissible in law. When an employee is found guilty of pilferage or of misappropriating the Corporation's funds, there is nothing wrong in the Corporation losing confidence or faith in such an employee and awarding punishment of dismissal. In such cases, there is no place for generosity or misplaced sympathy on the part of the judicial forums and interfering therefore with the quantum of punishment.” Further in the case of Noharlal Verma Vs. Distt. Coop. Central Bank Ltd., reported in (2008) 14 SCC 445, the Hon’ble Apex Court has held as under:

#37. In our opinion, by no stretch of imagination, can it be said that such punishment is grossly disproportionate or excessively high. Normally in exercise of power of “judicial review”, a writ court will not substitute its own judgment or decision for the judgment or decision of a disciplinary authority unless it comes to the conclusion that it has shocked the conscience of the court or the punishment is such that no “reasonable man” would impose such punishment or in the words of Lord Scarman in Nottinghamshire County Council v. Secy. of State for the Environment that the decision is so absurd that one is RC 8 satisfied that the decision-maker at the time of making decision “must have taken leave of his senses”. In case of Niranjan Hemchandra Sashittal v. State of Maharashtra, (2013) 4 SCC 642 the Hon’ble Apex Court has held that: “25. … In the present day scenario, corruption has been treated to have the potentiality of corroding the marrows of the economy. There are cases where the amount is small, and in certain cases, it is extremely high. The gravity of the offence in such a case, in our considered opinion, is not to be adjudged on the bedrock of the quantum of bribe. An attitude to abuse the official position to extend favour in lieu of benefit is a crime against the collective and an anathema to the basic tenets of democracy, for it erodes the faith of the people in the system. It creates an incurable concavity in the rule of law.” In Rajasthan SRTC v. Bajrang Lal, reported in (2014) 4 SCC 693, the Hon’ble Apex Court, following judgment passed in case of Municipal Committee v. Krishnan Behari, (1996) 2 SCC 714, has opined that, “in cases involving corruption there cannot be any other punishment than dismissal. It has been further held that any sympathy shown in such cases is totally uncalled for and opposed to public interest. The amount misappropriated may be small or large; it is the act of misappropriation that is relevant. In the said case (Rajasthan SRTC), the respondent employee was awarded punishment of removal from service. In the present case it is compulsory retirement. The learned counsel for respondents submitted that on an earlier occasion, the appellant was awarded a minor punishment for his misconduct, regarding defalcation of stamps. And now he is found guilty for the second time. Further, the Hon’ble Apex Court in case of Union of India & Ors. Vrs. P. Gunasekaran, reported in (2015) 2 SCC 610, has held as under: “It can only consider whether enquiry held by the competent authority was in accordance with procedure established by law and principles of natural justice, whether irrelevant or extraneous considerations and/or exclusion of admissible or material evidence or admission of inadmissible evidence have influenced decision rendering it vulnerable”. The Hon’ble Court further held that, “it can interfere where finding is wholly arbitrary and capricious based on no evidence which no reasonable man could ever arrive at”. RC 9

#14. The Hon’ble Apex Court in case Union of India & Ors. Vrs. P. Gunasekaran (supra) has further held that:

#20. Equally, it was not open to the High Court, in exercise of its jurisdiction under Articles 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford Dictionary is “moral uprightness; honesty”. It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, virtuousness, immaculacy, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence, etc. In short, it depicts sterling character with firm adherence to a code of moral values. uprightness, rectitude, several

#21. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court including B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : 1996 SCC (L&S) 80 : (1996) 32 ATC 44] , Union of India v. G. Ganayutham [(1997) 7 SCC 463 : 1997 SCC (L&S) 1806] , Om Kumar v. Union of India [(2001) 2 SCC 386 : 2001 SCC (L&S) 1039] , Coimbatore District Central Coop. Bank v. Employees Assn. [(2007) 4 SCC 669 : (2007) 2 SCC (L&S) Kumar India Choudhuri [(2009) 15 SCC 620 : (2010) 2 SCC (L&S) 499] in Chennai Metropolitan Water Supply [Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu, (2014) 4 SCC 108 : (2014) 1 SCC (L&S) 38] . the recent one Ltd. v. Mukul decisions , Coal 68]

#24. The Central Administrative Tribunal, in the order dated 1-2-2001 in OA No. 521 of 2000, after elaborately discussing the factual as well as the legal position, has come RC 10 to the conclusion that the punishment of compulsory retirement is not outrageous or shocking to its conscience, it was not open to the High Court to interfere with the disciplinary proceedings from stage one and direct reinstatement of the respondent with back wages.

#15. The judgments relied upon by learned counsel for the petitioner is of no help to him, since the employer has lost faith in this petitioner and in the banking, trust in bank employees is an essential ingredient without which the bank's business cannot run, and when the Bank Officials have lost their trust due to dishonesty, the Bank has no choice but to remove the erring Officer/Employee.

#16. Looking to the fact that this petitioner was working as a responsible officer under respondent-Bank and the nature of misconduct committed by him, and since the employer has lost faith in this petitioner and further looking to the proved misconducts, this petitioner is not befitting to continue as an employee of the respondents-Bank. The prestige of the respondents-Bank has also been seriously prejudiced by this petitioner. Hence, looking to the quantum of punishment of dismissal after evaluating the same with the nature of the misconduct, it cannot be said that the punishment inflicted upon this petitioner is shockingly disproportionate, nor the same can be labelled as unreasonably excessive.

#17. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, no interference is warranted in the instant writ petition and the same is hereby dismissed. (Dr. S.N. Pathak, J.)