Rakesh Babu Sharma vs State Of U.P. And Others
2019 Latest Caselaw 2555 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
Court No. - 2
 
Case :- WRIT - A No. - 23547 of 2006
 
Petitioner :- Rakesh Babu Sharma
 
Respondent :- State Of U.P. And Others
 
Counsel for Petitioner :- R.P. Mishra,A.N. Tripathi,Rajesh Kumar,S.R. Pandey
 
Counsel for Respondent :- Vipin Sinha,Ashok Trivedi,S.C..
 

 

 
Hon'ble Suneet Kumar,J.

Heard Sri A.N. Tripathi, Senior Advocate, assisted by Sri S.R. Pandey, learned counsels for the petitioner and Sri Ashok Trivedi, learned counsel for the respondent.

The instant petition is directed against the order dated 25 August 2006 passed by the appellate authority/ first respondent, Deputy General Manager, Bank of Baroda, affirming the order dated 29 August 2005 passed by the disciplinary authority/second respondent, Assistant General Manager, Bank of Baroda, Agra, imposing punishment of removal from service with superannuation benefits i.e. pension and/or provident fund and gratuity.

The facts, briefly stated, is that the petitioner was working as Accountant-cum-Cash Clerk (Head Cashier) at the Bank of Baroda, Branch Sikandara Rao; short cash of Rs. 3 lakh was noticed on 16 December 2003. Sri C.K. Tantwar was the Branch Manager at that relevant time.

The disciplinary proceedings was conducted as per the 'Memoranda of Settlements'1 on Disciplinary Action and Procedure therefor for Workman.

It is stated that both the petitioner and the Branch Manager made good the shortage, in cash, at their own end. However, F.I.R. came to be lodged by the higher authorities against the petitioner and the then Branch Manager at Police Station, Sikandra Rao, on 12 January 2004. Upon investigation, a closure report was submitted against both the persons. Thereafter, disciplinary proceedings came to be initiated separately against both the delinquent employees. Petitioner was issued charge sheet dated 16 August 2004 for seven charges, including: (i) acts of gross negligence causing embezzlement of bank's cash of Rs. 3 lakh, thereby, causing serious financial loss; (ii) failing to take possible steps to ensure and protect the interest of the bank and by acts of omission and commission which was detrimental to the interest of the bank; (iii) engaging in trade or business outside the scope of duties assigned to the petitioner without obtaining written permission from the bank.

The imputation of allegation of misconduct against the petitioner, in brief, was that petitioner closed cash of the Branch, alongwith the Branch Manager. The Branch Manager proceeded to Bareilly for training program after handing over the keys of the cash safe to the Officer attached to Moti Bazar, Hathras Branch of the bank. On the following morning i.e. 16 December 2003 the safe was opened by the Officiating Branch Manager jointly with the petitioner in the presence of the cash peon; upon physical verification Rs. 3 lakh was found missing/short in the safe. Thus, the allegation that on 15 December 2003 petitioner closed the cash short.

Further, it was alleged that the petitioner has two overdraft facilities at the Sikandra Rao Branch, the account reflects series of cash transactions and most of debit/credit transaction/entries are in the nature of cash deposits/drawals. On few occasions, third party have also received cash payment. The monthly turn over in the account is alleged to be unusually high, hence, the allegation that the petitioner was involved in some trade or business activities, outside the scope of his duties in the bank without obtaining written permission for the purpose.

Petitioner replied to the charge sheet denying the charges, the Enquiry Officer upon following the procedure mandated in the Rules governing departmental enquiry and on affording opportunity to the petitioner, held that the allegations and the charges on all counts stood proved. Petitioner was held primarily responsible for the cash shortage and was also found engaged in money lending business by misutilizing the concessional fund provided by the bank without obtaining written permission from the appropriate authority. Based on the enquiry report, penalty of removal with superannuation benefits came to be imposed by the disciplinary authority. Aggrieved, petitioner preferred an appeal on 21 April 2006 alleging that the cash was not embezzled but was lost mysteriously. It was further contended that the loss was made good jointly by the petitioner and the then Branch Manager immediately, thus causing no loss to the bank. The procedure and norms of the bank was not violated. The issue of disparity in inflicting punishment on the petitioner as compared to the Branch Manager was also raised. It was alleged that major penalty was imposed upon the petitioner removing him from service, whereas, minor punishment of stoppage of one increment for one year was inflicted on the Branch Manager. It was further contended that in criminal proceedings, after investigation, closure report came to be submitted against the petitioner and the Branch Manager.

The appellate authority agreed and affirmed the view taken by the disciplinary authority holding that the primary responsibility was that of the petitioner and the lapse of causing loss to the bank is foremost upon the petitioner. Further, upon perusal of the documentary record and entries pertaining to 57 debit entries and 49 credit entries amounting to Rs. 97.46 lakhs between April 2003 to February 2004 i.e. 11 months, reflected usually high turnover, hence, in the opinion of the disciplinary authority petitioner was engaged in money lending business misutilizing the concessional fund granted by the bank, without obtaining permission from the competent authority. Consequently, the order of punishment came to be affirmed in appeal.

Learned counsel for the petitioner submits that the imputation of misconduct against the petitioner and the then Branch Manager was similar arising from the same incident, therefore, major penalty imposed on the petitioner is harsh, whereas, while a minor penalty came to be imposed on the Branch Manager. In other words, petitioner claims parity with the Branch Manager.

Learned counsel for the petitioner on specific query, submits that the allegations of misconduct and the charges against the petitioner and the Branch Manager were not identical; separate disciplinary proceedings was conducted against them. On perusal of the enquiry report, the role and allegation against the delinquent employees may be slightly different, but submits that minor punishment, inflicted upon the Branch Manager would have sufficed in case of the petitioner for the reason that allegation is based on the same incident.

The charges against the petitioner based on the imputation of misconduct reads thus:

1. You did not take all possible steps to ensure and protect the interests of the Bank but in fact did such omission and commissions as were detrimental to the interest of the Bank.

2. You did acts of gross negligence which caused embezzlement of Bank's cash of Rs. 3.00 lacs and involving the bank in serious financial loss.

3. You did not follow the laid down procedures / systems of the Bank.

4. You did acts prejudicial to the interest of the Bank.

5. You did acts of unbecoming of a Bank Employee.

6. You did acts which have tarnished image of the Bank.

7. You did acts of engaging in trade or business outside the scope of your duties without the written permission of the Bank.

In the counter affidavit it has been categorically stated that the charges levelled against the petitioner and the Branch Manager were different, disciplinary authority in both the cases were also different. The charges against the petitioner was on seven counts as compared to a single charge levelled against the Branch Manager. Merely because loss was made good by both the officers does not make them equally responsible for the misconduct committed by them. It is a practice in the bank that short cash cannot be closed by the bank, therefore, the loss was attributed equally to both the officers to make good the short cash. This would certainly not mean that both the officers were equally responsible for their acts of misconduct as is reflected from the charges and the findings returned by the respective Enquiry Officers. The charge against the Branch Manager reads thus:

"Article of Charge

Mr. C.K. Tantwar, Officer MMG/S-II, earlier posted as Branch Manager of Sikandara Rao Branch is reported to have committed acts of omission and commission which if proved would amount to misconduct under Regulation 3 read with Regulation 24 of Bank of Baroda Officer Employees' (Conduct) Regulations, 1976 as under :

1. He did not take all possible steps to ensure and protect the interests of the Bank but in fact took such steps and did such omission and commissions as were detrimental to the interest of the Bank.

2. His acts of negligence caused embezzlement of Bank's cash of Rs. 3.00 lacs.

3. He did not follow the laid down procedures/ systems of the Bank."

On specific query, learned counsel for the petitioner admits that the procedure prescribed under the Rules, in conducting disciplinary proceedings, was duly followed and no prejudice was caused to the petitioner. He, however, submits that petitioner claims parity in punishment with the Branch Manager.

The statement of allegation along with memorandum of charge dated 14 August 2004, against the Branch Manager reflects, that being joint custodian of cash along with the Head Cashier (petitioner), before proceeding to Bareilly for training program the Branch Manager handed over the keys of the cash safe to the Officiating Branch Manager attached to Moti Bazar, Hathras Branch, i.e. another Branch, without actual physical verification of the closed cash. Consequently, the Branch Manager was charged for an act of negligence causing loss to the bank. It is thus evident from the allegations that the disciplinary proceedings was initiated against the Manager being joint custodian of the cash, whereas, the allegation against the petitioner was that he closed the cash, short, and on the following day the cash safe was opened, in the presence of the petitioner; short cash was imputed solely against him. That apart petitioner was charged on six other counts holding him guilty. The allegation that the petitioner was engaged in business and trade is a serious misconduct under the Rules.

Under clause 5 of Memoranda of Settlements, gross misconduct includes engaging in any trade or business outside the scope of duties except with written permission of the bank. Under the Bank of Baroda Officer Employees' (Conduct) Regulations, 1976, Regulation 6(1) provides no officer employee shall, except with the previous sanction of the bank, engage directly or indirectly in any trade or business or undertake any other employment.

It is writ large from the facts of the case that the principle of parity would not apply in the instant case.

The sole point that arises for consideration is whether petitioner is entitled to parity with Manjunath.

The Supreme Court in Rajendra Yadav Vs. State of M.P. and others2, held that where in a given case the delinquent employee who had a more serious role was inflicted comparatively a lesser punishment as against the other delinquent employee who had a passive role in the incident was inflicted a more serious punishment (dismissal) is clearly arbitrary and discriminating. Para 11 and 12 of the judgment is extracted.

"11. We have gone through the inquiry report placed before us in respect of the appellant as well as Constable Arjun Pathak. The inquiry clearly reveals the role of Arjun Pathak. It was Arjun Pathak who had demanded and received the money, though the tacit approval of the appellant was proved in the inquiry. The charge levelled against Arjun Pathak was more serious than the one charged against the appellant. Both appellants and other two persons as well as Arjun Pathak were involved in the same incident. After having found that Arjun Pathak had a more serious role and, in fact, it was he who had demanded and received the money, he was inflicted comparatively a lighter punishment. At the same time, appellant who had played a passive role was inflicted with a more serious punishment of dismissal from service which, in our view, cannot be sustained.

12. The Doctrine of Equality applies to all who are equally placed; even among persons who are found guilty. The persons who have been found guilty can also claim equality of treatment, if they can establish discrimination while imposing punishment when all of them are involved in the same incident. Parity among co-delinquents has also to be maintained when punishment is being imposed. Punishment should not be disproportionate while comparing the involvement of co-delinquents who are parties to the same transaction or incident. The Disciplinary Authority cannot impose punishment which is disproportionate, i.e., lesser punishment for serious offences and stringent punishment for lesser offences."

The principle stated above is seen applied in few judgments of the Supreme Court. The earliest one is Director General of Police and Others v. G. Dasayan3, wherein one Dasayan, a Police Constable, along with two other constables and one Head Constable were charged for the same acts of misconduct. The Disciplinary Authority exonerated two other constables, but imposed the punishment of dismissal from service on Dasayan and that of compulsory retirement on Head Constable. Supreme Court, in order to meet the ends of justice, substituted the order of compulsory retirement in place of the order of dismissal from service on Dasayan, applying the principle of parity in punishment among co-delinquents.

In Anand Regional Coop. Oil Seedsgrowers' Union Ltd. v. Shailesh Kumar Harshadbhai Shah4, the workman was dismissed from service for proved misconduct. However, few other workmen, against whom there were identical allegations, were allowed to avail of the benefit of voluntary retirement scheme. In such circumstances, Supreme Court directed that the workman also be treated on the same footing and be given the benefit of voluntary retirement from service from the month on which the others were given the benefit.

The principle laid down in the above mentioned judgments would, however, not apply to the facts of the present case.

The Supreme Court in a recent judgment rendered in State of Tamil Nadu and another Versus M. Mangayarkarasi and etc5. has held that the principle of parity as a yardstick cannot be applied mechanically. The disciplinary authority while applying the principle of parity must assess the gravity of misconduct of the delinquent employees. The quantum of punishment is dependent on the degree of seriousness of the nature of the misconduct and its consequence and not on the similar language of the charge.

"Learned counsel for the respondents also submitted that there is no case of misappropriation against the two employees involved in the present appeals. There are several reasons, in our view, why the approach of the High Court in the present case cannot be accepted. First, in seeking to apply the principle of parity of treatment, the High Court has manifestly failed to notice that the gravity of misconduct which was established against the appellants was distinct from and of a more serious nature than what was found against the other employees. .................................................

.................... The nature and extent of a dereliction of duty and the consequences of the dereliction are significant matters which can legitimately be borne in mind by the disciplinary authority.

Second, while noticing that such a submission was in fact made before the learned Single Judge, the Division Bench proceeded to apply the yardstick of parity. Parity could not be applied for the simple reason that there is a material distinction in the case of the misconduct alleged against the appellants as compared to the other employees. While the language of the charge may be similar in other cases that does not detract from the fact that the amount involved and the extent of the lack of verification in the case of the respondents is of a much higher order. The Division Bench having noticed that in a matter of this nature, the principle of parity cannot be attracted, nonetheless affirmed the view of the learned Single Judge. This is evidently erroneous."

In view of the statement of law, separate departmental enquries on distinct charges was initiated against the petitioner and the allegations of misconduct imputable to the petitioner and the Branch Manager is also distinct and different. In the circumstances, the principles of parity would not apply.

The contention of the learned counsel for the petitioner that no loss was caused to the bank lacks merit.

The Supreme Court in State Bank of Bikaner and Jaipur versus Nemi Chand Nalwaya6, held that termination by way of punishment was justified or loss of confidence in an employee by a bank for causing loss to the bank. Similarly, in State Bank of India and others Versus S.N. Goyal7, the Apex Court held that temporary misappropriation of customer's money by Bank employee is a serious misconduct warranting removal from service and tantamounts to breach of trust.

In the facts of the instant case, the petitioner was removed from service with pensionary benefits. The respondents have, therefore, taken a lenient view while imposing punishment upon the petitioner for serious misconduct. Judicial review is permissible in very rare cases where punishment is so disproportionate to the established charge that it would appear unconscionable and actuated by malice. (Refer: State of Uttar Pradesh and others versus J.P. Saraswat8). Such is not the case in the instant matter in hand as the bank has taken a liberal view, in the backdrop of proved misconduct, by imposing punishment of removal with pensionary benefits.

Having due regard to the facts and circumstances of the case, the writ petition is dismissed.

It is clarified that no other point or ground was pressed by the learned counsel for the petitioner.

No costs.

Order Date:-05.04.2019

K.K. Maurya