Madras High Court

S. Rathinam vs Canara Bank on 2 February, 2022

W.P.(MD) No.3202 of 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 02.02.2022

CORAM

THE HON'BLE DR.JUSTICE ANITA SUMANTH

W.P.(MD)No. 3202 of 2018
and
WMP (MD) Nos. 3360 and 3361 of 2018
S. Rathinam ...Petitioner
Vs
1. Canara Bank,
Represented by its Managing Director,
Human Resources Wing
Head Office
112 J C Road, Bangalore – 560002.

2. The Deputy General Manager,
(Appellate Authority)
Canara Bank
Human Resource Wing
Head Office, 112 J C Road
Bangalore - 560002

3. The Assistant General Manager,
(Disciplinary Authority)
Human Resources Section,
Circle Office, East Veli Street,
Madurai - 625 001.

4. The Branch Manager,
Canara Bank,
Kulasekaram Branch,

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W.P.(MD) No.3202 of 2018

Kanyakumari District. .. Respondents

Prayer: Writ Petition filed under Article 226 of the Constitution of India,
for the issuance of a writ of certiorarified mandamus, to call for the records
pertaining to the impugned order in Ref.MUDC HRM 4311/2016 dated
28.10.2016 on the file of Respondent No.3 and the impugned order dated
08.08.2017 of respondent No.2 confirming the order passed by respondent
No.3, and quash the same as illegal and consequently to direct the
respondents to reinstate petitioner into service and award all consequential
service benefits from 29.10.2016, within the time stipulated by this Court
and pass orders.

For Petitioner : M/s. T. Lajapathi Roy
Mr. S. Rajasekar
For Respondents : Mr. N. Dilip Kumar
Standing Counsel for R3 and R4
R1 and R2- No appearance

ORDER

The petitioner challenges orders passed by R3 on 28.10.2016 and

confirmed by R2 on 08.08.2017 and seeks a consequential direction for

reinstatement in service with all benefits within a time frame to be fixed by

the Court.

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2. The petitioner had joined the Canara Bank (in short, hereinafter

referred to as 'Bank') as a daily wager in 1976. According to him, the Bank

was functioning out of a building owned by his family, in the initial period

of its operation. He was absorbed in service as a peon from 06.03.1979 and

has been promoted through the ranks to the position of a Clerk in the year

2002.

3. Transferred over the years to several branches, he was ultimately

posted in Nattalam and claims to have been instrumental in developing the

business of the branch there as well as in Chinnathurai thereafter. In the

course of his service while working in the Kuzhithurai branch of the bank,

he admits to have, under pressure of work, committed certain grave lapses

in duty.

4. In 2015 since he was in need of funds for his daughter's wedding,

he had sought loans from some of the bank customers. Such loans,

according to him, were in the form of cash that had been brought by four

customers for deposit into their gold savings accounts. Though he had

issued challans for receipt of the cash from the customers, the amounts were

retained by him and he maintains that the retention was only with their

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consent. Subsequently, upon complaints filed by the customers, the

amounts were repaid.

5. The customers had brought the factum of embezzlement by the

petitioner to the notice of the bank contrary to the petitioner's averment that

the retention of the cash was with their knowledge. The bank immediately

initiated action for misappropriation, framed charges on 06.06.2016 and

conducted an enquiry culminating in an order of dismissal without notice.

This order has been confirmed in appeal as against which the petitioner is

before this court.

6. The allegations concern misconduct, gross negligence, wilful

damage to the property of the bank and its customers and engagement in

acts that are prejudicial to the interests of the bank. The argument putforth

revolves around Clause 11 of Chapter XI of Circular No.333 of 2007

relating to disciplinary action which requires that while awarding

punishment, the previous record of the employee and any other aggravating

or extenuating circumstance must be taken into account.

7. Thus, according to the petitioner, since he has been in service of

the bank from 1976, his long service must be taken note of and a

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humanitarian view be taken of the allegations that have been foisted on

him. The petitioner relies upon a decision of a learned Single Judge of this

court in Somarajan and Others vs Management of A.R.C Engineering

[(1981) IILLJ 25Mad]

8. Per contra, learned counsel for the bank would submit that the

impugned orders reveal clearly the falsity in the averments of the petitioner

to the effect that the retention of the cash was with the consent of the

account holders. He points out that the transactions were entirely

fraudulent and made with the clear intention of deceiving the customers.

9. It was only when the customers complained to the bank that the

petitioner immediately deposited the amounts into their accounts. The fact

that the petitioner has repaid the amounts has no bearing upon the matter

and upon the decision of the bank to dismiss him from service, which

warrants no interference.

10. He relies upon two judgments of the Supreme court in the cases

of Ram Chander vs Union of India & Others [1986 SCC (4)12] and Diwan

Singh vs Life Insurance Corporation of India and Others [(2015) 2 SCC

341].

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11. When the matter came up first before me, at insistence of the

learned counsel for the petitioner and bearing in mind the lengthy duration

of the petitioner's service, I had asked if the bank would consider his

reinstatement. The Bank is however not so inclined, bearing in mind the

gravity of the offences committed.

12. On the merits, the trajectory of the events as portrayed by the

petitioner contrast with the findings in the impugned orders. The petitioner

would attempt to state that the retention of the amounts was with the

consent of the customers. This is rejected straightaway as had it been so,

there was no occasion for the customers to have filed complaints.

13. The falsity in this averment is crystal clear and evident. That

apart, the petitioner has been calculating in his choice of victims and has

identified four women perhaps believing that they would be more

susceptible to his fraud. The modus operandi is that when the women

approached the counter with cash to be credited in their gold savings

accounts, the petitioner received the amounts and issued counter foils. He

however neither deposited/credited the amount to their accounts nor

accounted for the remittances on that day.

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14. He has not reported excess cash upon the closure of cash

transactions on that day. The aforesaid identical modus operandi has been

carried out in all four cases. The design to misappropriate the amounts

deposited by the customers is apparent.

15. There is hardly any defence or contra material that is placed on

record by the petitioner to disprove the version of the events in the

impugned orders, and as recorded above. The argument that past conduct

should be taken into account can hardly be invoked in a situation such as

the present since the design and the loss of reputation to the bank is more

than clear.

16. The responsibility cast upon the petitioner who is working in a

nationalised bank and dealing with public funds is enormous to say the least

and the decision of the respondents to terminate his service is, in my

considered view, well taken. The reliance of the petitioner upon the case of

Ram Chander is misplaced. In that case, an employee had assaulted his

superiors and had been dismissed from service.

17. The order of dismissal was set aside directing the railway board to

hear and dispose the appeal filed by that employee. Reliance on the decision

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in the case of Somarajan is also misplaced. The Madras High Court dealt

with orders of dismissal passed in the case of workmen for certain acts of

misconduct during a period of strike.

18. While deciding the issue and allowing the case of those workmen

by setting aside the matter to be decided by the Labour Court, this Court

states at paragraph 29 that the past record of the workmen had not been

taken into account by the management. The respondent counsel had

justified the orders on the ground that the gravity of misconduct was so

severe that even, had the management taken into account the past record, it

would not have changed the punishment awarded.

19. However, Rule 17(5) of the Model Standing Order applicable in

that case had provided that in awarding punishment the employer must take

into account the gravity of the offence and any extenuating or aggravating

circumstances.

20. Therefore, the learned Single Judge was of the view that the

management must take specific note of the previous record of the employee

as well as other extenuating circumstances that might exist. Petitioner

counsel placed great reliance upon his decision though in my view it is

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misplaced.

21. While considering a hostile scenario such as a strike or agitation,

it is inevitable that there will be some acts that might be considered as

misconduct. Then again the assault of a superior, while to be condemned,

could well have been provoked or triggered by flaring tempers in the heat of

the moment.

22. However, the actions that this court is concerned with now are not

impulsive acts, triggered by impetuousness or by an instant rage but a

scheme which has been carefully designed and consciously implemented to

defraud customers. The selection of the customers has been careful and

even before this Court, the petitioner continues to state that the cash was

retained with the consent of the customers, when all evidence points to the

contrary. Thus leaves me in no doubt that the respondents have taken the

right decision and the past conduct of the petitioner is of no relevance in a

calculated attempt to deceive as in the present case.

23. In Diwan Singh, the Supreme Court considered the dismissal of a

cashier who was employed with the Life Insurance Corporation of India,

who had misappropriated an amount of Rs. 533 that had been deposited by

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a policy holder towards half yearly insurance premium.

24. On a very similar factual matrix as in this case wherein the

employee had been dismissed, the order of dismissal was confirmed by the

Supreme Court stating that sympathy shown in such cases is totally

uncalled for and opposed to public interest. The amount in question was of

no consequence and what is relevant is the act of misappropriation by a

public servant.

25. The fact that Diwan Singh had earlier been awarded a minor

punishment and his dismissal was a subsequent punishment would in my

view, not be relevant bearing in mind the offence committed by the

petitioner in this case and the sequence of facts as noticed above. Writ

petition is dismissed. No costs. Consequently, connected miscellaneous

petitions are closed

02.02.2022

Index: Yes/No Speaking/non-speaking Internet: Yes

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Note : In view of the present lock down owing to COVID-19 pandemic, a web copy of the order may be utilized for official purposes, but, ensuring that the copy of the order that is presented is the correct copy, shall be the responsibility of the advocate/litigant concerned

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https://www.mhc.tn.gov.in/judis W.P.(MD) No.3202 of 2018

1. The Managing Director, Canara Bank, Human Resources Wing Head Office 112 J C Road Bangalore - 560002

2. The Deputy General Manager, (Appellate Authority) Canara Bank Human Resource Wing Head Office 112 J C Road Bangalore - 560002

3. The Assistant General Manager, (Disciplinary Authority) Human Resources Section, Circle Office, East Veli Street, Madurai - 625 001.

4. The Branch Manager, Canara Bank, Kulasekaram Branch, Kanyakumari District.

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https://www.mhc.tn.gov.in/judis W.P.(MD) No.3202 of 2018

DR.ANITA SUMANTH, J.

mnr

W.P.(MD)No. 3202 of 2018 and WMP (MD) Nos. 3360 and 3361 of 2018

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