Jharkhand High Court
The Canara Bank Through General Manager ... vs Sanjeev Kumar on 23 October, 2024
Author: Deepak Roshan
Bench: Deepak Roshan
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: Mr. Pratyush Kumar, Advocate
Mr. Prashant Kumar Srivastava, Advocate
For the Respondent: 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 :
(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
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.
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 2 nd 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
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.
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,
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;
(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.
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 2 nd
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.
W.e.f .3.1.1977
(1993)4 SCC 727 AT PARA 285
(2019)16 SCC 69
(2009) 11 SCC 266 : (2009) 2 SCC (L&S) 618, at page 270
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
(1974) 3 SCC 712 : 1974 SCC (L&S) 245, at page 715
6(2000) 8 SCC 12 : 2000 SCC (L&S) 1049, at page 17 :
reliance on non-examination of the complainant, non-production of
money, non-production of the so-called confessional statements and non-
production of any evidence which may have been available. But as far as
the evidence tendered by the two witnesses is concerned who actually
saw the incident having taken place in the manner referred to earlier,
the charge of misconduct against the first respondent stood proved to the
hilt and we fail to appreciate as to how the Tribunal could have taken
any other view.
6.A customer of the Bank need not be involved in a domestic enquiry
conducted as such a course would not be conducive to proper banker-
customer relationship and, therefore, would not be in the interest of the
Bank. Further, when money was secured a prudent banker would deposit
the same in the account of the customer complaining of loss of money
and, therefore, non-production of money also would not be of much
materiality. When in the course of the domestic enquiry no reliance was
placed on the so-called confessional statement made by the first
respondent, then non-production of the same is also of no significance.
Thus, in our opinion, these circumstances are irrelevant and the
Tribunal could not have placed reliance on the same to reach the
conclusion it did and, therefore, the learned Single Judge was justified in
interfering with the same. In the writ appeal the learned Judges on the
Division Bench reiterated the view expressed by the Tribunal which we
have found to be fallacious." ( emphasis supplied)
So when the other evidence adduced in the disciplinary inquiry
proves the guilt of the employee, non-examination of the complainant
is not fatal to the case of the employer.
The learned Single Judge erred in relying on the decision of the
Supreme Court in Commissioner of Police, Delhi v. Jai Bhagwan7.
That was a case where none witnessed the taking of the bribe by the
respondent, but inference of payment of bribe was drawn on pretext
that the respondent had returned Rs.100/- to the complainant. Also no
(2011) 6 SCC 376
other person was examined in that case who would have witnessed the
payment of bribe to the respondent though the alleged bribe was said
to have been paid in the Indira Gandhi International Airport, New
Delhi near the X ray machine , which was a public place, where other
passengers could have witnessed the payment of bribe. These factors
together with the fact of non-examination of the complainant in the
inquiry were relied on to interfere with the findings in the disciplinary
authority.
In our opinion, if the evidence on record otherwise is sufficient
to prove the guilt of the employee, mere non-examination of
complainant is not fatal to the case of the employer.
Infact the decision in East India Hotels Ltd (5 supra) cited
above does not appear to have been noticed in the case of
Commissioner of Police (7 supra).
Therefore we hold that the learned single Judge erred in holding
that non-examination of the complainant is fatal to the action taken by
the Bank against the respondent.
29) We may point out that the respondent was holding the position of a
Manager of a Bank and was dealing in public funds. He is thus holding
a position of trust and confidence.
In Karnataka SRTC v. M.G. Vittal Rao8, the Supreme Court held
that if a workman was holding position of trust and confidence, and he
has abused his position and commits any act forfeiting the same, and to
(2012) 1 SCC 442 : (2012) 1 SCC (L&S) 171, at page 453
continue him in service would be embarrassing and inconvenient to the
employer, the employer's decision to impose harsh punishment, cannot
be interfered with. It declared:
"25. Once the employer has lost the confidence in the employee and the
bona fide loss of confidence is affirmed, the order of punishment must be
considered to be immune from challenge, for the reason that discharging
the office of trust and confidence requires absolute integrity, and in a
case of loss of confidence, reinstatement cannot be directed. [Vide Air
India Corpn. v. V.A. Rebellow29, Francis Klein & Co. (P) Ltd. v.
Workmen30 and BHEL v. M. Chandrasekhar Reddy31.]
26. In Kanhaiyalal Agrawal v. Gwalior Sugar Co. Ltd.32 this Court laid
down the test for loss of confidence to find out as to whether there was
bona fide loss of confidence in the employee, observing that, (SCC p.
614, para 9) (i) the workman is holding the position of trust and
confidence; (ii) by abusing such position, he commits an act which
results in forfeiting the same; and (iii) to continue him in
service/establishment would be embarrassing and inconvenient to the
employer, or would be detrimental to the discipline or security of the
establishment. Loss of confidence cannot be subjective, based upon the
mind of the management. Objective facts which would lead to a definite
inference of apprehension in the mind of the management, regarding
trustworthiness or reliability of the employee, must be alleged and
proved. (See also Sudhir Vishnu Panvalkar v. Bank of India33.)
27. In SBI v. Bela Bagchi34 this Court repelled the contention that even
if by the misconduct of the employee the employer does not suffer any
financial loss, he can be removed from service in a case of loss of
confidence. While deciding the said case, reliance has been placed upon
its earlier judgment in Disciplinary Authority-cum-Regional Manager v.
Nikunja Bihari Patnaik35.
28. An employer is not bound to keep an employee in service with whom
relations have reached the point of complete loss of confidence/faith
between the two. [Vide Binny Ltd. v. Workmen36, Binny Ltd. v.
Workmen37, Anil Kumar Chakraborty v. Saraswatipur Tea Co. Ltd.38,
Chandu Lal v. Pan American World Airways Inc.39, Kamal Kishore
Lakshman v. Pan American World Airways Inc.40 and Pearlite Liners
(P) Ltd. v. Manorama Sirsi41.]
30) The charges levelled against the respondent are indeed serious
charges, which if proved, would require imposition of harsh punishment
since they indicate that he cannot be trusted with handling of public
money and the Bank was justified in having "loss of confidence" and
removing him from service.
31) We shall therefore examine whether there is material to come to a
conclusion that the respondent had indeed committed the misconduct
indicated in the charges framed against him.
32) As regards the first charge, Mrs.Rani Prasad Sinha, AEO had sent an
email dt.31.10.2018, before the disciplinary inquiry started, stating that
she was pressurized by the respondent for sanctioning the KCC/KMCC
loans and that middlemen and agents were regularly coming to the
branch for follow up of these loans. She admitted sending the email
dt.31.10.2018 with full consciousness and deliberately during the
disciplinary inquiry as well.
Though during the disciplinary inquiry, she retracted in DEX-5
her allegation, and denied the allegation that the respondent had been
pressurizing her to granting loans in any way, since the email
dt.31.10.2018 had been sent by her out of her free will and full
consciousness at a time when she was obviously under no threat,
inducement or promise,the same, in our opinion, was rightly believed by
the inquiry officer. The subsequent statement DEX-5 made by her
retracting the same was probably given on account of one or the other
above factors.
33) The other two charges have been proved by the video clip taken by
the respondent's own witness Naseem Ansari. So the respondent cannot
question the authenticity of it when his own witness admitted that he
had taken the said video.
Whether the said witness had taken the video with motive of
revenge or in anger is wholly irrelevant when it's authenticity is not in
doubt and the video footage contains conversation between the
respondent and the his witness about bribe money for getting the loans
sanctioned.
In the video clip admittedly, the respondent received the money
from the person giving the bribe and kept it in his pocket without giving
any receipt for the payment made to him. Non issuance of receipt by the
respondent indicates that he received it as a bribe.
Also strict rules of evidence admittedly do not apply in a disciplinary
inquiry. So the respondent cannot plead non compliance with Section
65-B of the Evidence Act, 1872.
34) Thereforethere was sufficient material evidence available on record
to support the findings of the inquiry officer.
35) We therefore find no infirmity with the findings recorded by the
inquiry officer which were affirmed by the disciplinary authority, the
appellate authority and reviewing authority and hold that the learned
single Judge could not have reappreciated the evidence as he had done,
and come to a contrary view.
In State of Bihar v. Phulpari Kumari9, the Supreme Court held
that that interference with the orders passed pursuant to a departmental
inquiry can be only in case of "no evidence". Sufficiency of evidence is
not within the realm of judicial review. The standard of proof as required
in a criminal trial is not the same in a departmental inquiry. Strict rules
of evidence are to be followed by the criminal court where the guilt of
the accused has to be proved beyond reasonable doubt. On the other
hand, preponderance of probabilities is the test adopted in finding the
delinquent guilty of the charge. It declared that the High Court ought not
to have interfered with the order of dismissal of the respondent by re-
examining the evidence and taking a view different from that of the
disciplinary authority which was based on the findings of the inquiry
officer.
36) Once the guilt of the respondent, who is holding a position of trust
and confidence, is established in the disciplinary proceedings, then if the
employer chooses to impose a harsh punishment of removal from
service, no exception can be taken to it.
37) Therefore we hold that the learned single Judge erred in interfering
with the quantum of punishment imposed by the appellants and
remitting the said aspect back to the appellants.
(2020) 2 SCC 130 : (2020) 1 SCC (L&S) 161, at page 131 :
38) Accordingly, the LPA is allowed; impugned judgment of the learned
single Judge is set aside and the W.P.(S) No.3050 of 2021 is dismissed.
No costs.
(M.S.Ramachandra Rao, C.J)
(Deepak Roshan, J.)
Rakesh/-
