Madras High Court
G.Kumaresan vs The General Manager on 16 June, 2023
W.P(MD)No.12499 of 2020
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16.06.2023
CORAM
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
W.P(MD)No.12499 of 2020
and
W.M.P(MD)No.10677 of 2020
G.Kumaresan ... Petitioner
Vs.
1.The General Manager,
Canara Bank,
Circle Office,
East Veli Street,
Madurai.
2.The Deputy General Manager,
Canara Bank,
Human Resources Management Section,
Circle Office,
East Veli Street,
Madurai – 625 001.
3.The Assistant General Manager /
Disciplinary Authority,
Canara Bank,
Human Resources Management Section,
Circle Office,
Madurai.
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W.P(MD)No.12499 of 2020
4.The Branch Manager,
Canara Bank,
Vikkiramangalam Branch,
Usilampatti Taluk,
Madurai District.
5.Kaliraj ... Respondents
Prayer: Writ Petition filed under Article 226 of the Constitution of India
praying to issue a Writ of Certiorarified Mandamus, to call for the records
pertaining to the impugned Enquiry Report of the fifth respondent in No.Nil,
dated 08.04.2020 and the impugned orders passed by the third respondent in
Ref. MDUC HRM 4600 2020, dated 21.05.2020 and another order in No.Nil,
dated Nil titled as Orders of the Disciplinary Authority, quash the same and
direct the third respondent to reinstate the petitioner into services with all
consequential benefits such as continuity of service including the service
benefits with full back wages and the period of suspension from 06.08.2018 till
the date of issuing the impugned order by the third respondent dated
21.05.2020, as one spent on duty.
(Prayer amended vide order of this Court dated 02.02.2023 in
W.M.P(MD)No.1930 of 2023)
For Petitioner : Mr.R.Murugan
For Respondents : Mr.N.Dilip Kumar
Standing Counsel for R.1 to R.4
ORDER
Heard the learned counsel on either side.
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W.P(MD)No.12499 of 2020
2.The petitioner joined Canara Bank as a Clerical staff in the year 1990.
He was working as Cashier in the year 2018. He was issued with charge memo
dated 31.07.2020. The allegation made against the petitioner was that he had
embezzled a sum of Rs,2,00,000/- (Rupees Two Lakhs). The petitioner offered
his explanation. The petitioner also filed quite a few writ petitions. Eventually,
the enquiry came to be conducted and the Enquiry Officer submitted his report
dated 06.01.2020 holding that the charge against the petitioner was proved.
The petitioner was furnished with copy of the enquiry report and his further
representation was obtained. Thereafter, order dated 21.05.2020 was passed
dismissing the petitioner from service. Challenging the same, the present writ
petition came to be filed.
3.The learned counsel appearing for the petitioner reiterated all the
contentions set out in the affidavit filed in support of the writ petition and he
also filed written submissions. A catena of case-laws was relied upon. The
learned counsel appearing for the petitioner contended that the impugned order
has to be set aside and the writ petition allowed as prayed for.
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W.P(MD)No.12499 of 2020
4.The respondents have filed counter affidavit and the learned Standing
Counsel took me through its contents. He pressed for dismissal of the writ
petition.
5.I carefully considered the rival contentions and went through the
materials on record. The articles of charge are as follows:
“ARTICLES OF CHARGE
You are presently working as SWO-A at our Printing & Stationary
Section, Madurai since 26.02.2019. Earlier while you were working
as SWO-A at our Vikkiramangalam branch since 18.11.2015, you
were placed under suspension from 07.08.2018 to 25.02.2019.
On 12.06.2018 you were the cashier of Vikkiramangalam branch.
You have on that day left the branch at 4.50 PM without ensuring
that the cash is verified and tallied by the supervisor. During the
end of the day, the supervisor Sri Niranjan Kumar K observed a
cash shortage of Rs.200500/-. The cash shortage comprised of 100
pieces in Rs.2000/- denomination and 10 pieces in Rs.50
denomination. An investigation was conducted into the matter and
there are prima facie grounds to believe that as cashier you failed
to follow the systems and procedures and following lapses are
observed on your part:
1. You had embezzled an amount of Rs.2,00,000/- on 12.06.2018
and thereby defrauded the bank while working as cashier at
Vikkiramangalam branch.
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W.P(MD)No.12499 of 2020
During investigation it is observed that Sri Niranjan Kumar
(112351) Probationary Officer while verifying the cash on
11.06.2018 with an intention to load Rs.2 lacs (100 pieces of Rs.
2000/-) in the ATM, wrote the cash register for the next day
(12.06.2018) with 69 pieces of Rs.2000/- on 11.06.2018 itself.
Whereas on the next day (12.06.2018) Sri Niranjan Kumar along
with Smt. Sridevi G D (111674) Probationary Officer without
removing the 100 pieces of Rs.2000/- denomination intended for
loading the ATM inadvertently handed over the entire 169 pieces of
Rs.2000/- along with other denominations for that day’s cash
transaction to you on 12.06.2018 morning as the cashier of the
branch.
You had tallied the cash in accordance with the entries available in
the cash register on 12.06.2018 instead of reporting the excess cash
which was inadvertently handed over to you at the start of the day.
Sri Niranjan Kumar while tallying the cash at the end of the day on
12.06.2018 observed a cash shortage of Rs.2,00,500/- (Rs.2000 x
100 pieces and Rs.50 x 10 pieces). The then manager, Sri S
Sreekumar had contacted you over phone and enquired about the
cash shortage being observed on that day for which you had replied
to him that the cash was tallied as per the register. In order to tally
the cash on that day, the cash shortage of Rs2,00,500/- observed
was temporarily made good by the branch by obtaining a cheque
bearing No.315408 dated 12.06.2018 for Rs.2,00,500/- from a
customer, M/s P S Sivamurugan Ura Depot, holder of OD account
No.1463285005116 and the cash was accordingly tallied for the
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W.P(MD)No.12499 of 2020
day.
On the next day (13.06.2018), you had handed over an amount of
Rs. 500/- informing to be the difference amount observed by you in
Rs.50 denomination to the cashier, Sri Peter (114408) SWO A.
Subsequently on careful analysis of the CCTV footage of
12.06.2018, it is observed that you had taken a section of Rs.2000
denomination from the cash placed on your table and kept the same
in your hand bag at around 4 pm on that day. Thereby you had
defrauded the bank by embezzling an amount of Rs.2,00,000/- out
of the cash handed over to you at the beginning of the day.
2. You had left the branch on 12.06.2018 before the cash being
verified by the supervisor, thereby violating the extant guidelines.
You had left the branch on 12.06.2018 before the cash was verified
by the cash supervisor and you had also not informed about your
leaving, to the cash supervisor. Thus you had intentionally left the
branch before the cash was verified by the supervisor so as to
embezzle the amount from the bank. Thereby you had violated the
extant guidelines of the bank by leaving the branch before the cash
being verified by the supervisor.
3. You had not reported the excess cash handed over to you
inadvertently by Smt. Sridevi G D & Sri Niranjan Kumar.
Sri Niranjan Kumar (112351) Probationary Officer and Smt.
Sridevi had inadvertently handed over an excess amount of Rs.2
lacs in Rs.2000 denomination during the start of the day on
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W.P(MD)No.12499 of 2020
12.06.2018. You had failed to verify the cash received from double
lock and report the excess cash received to the concerned officers
or to the branch in charge with a malafide intention to embezzle the
money. Thereby you had acted in violation of the extant guidelines
by not reporting the excess cash received from the double lock.
All your above acts touch upon your honesty and integrity and
thereby committed a fraud on the bank to gain pecuniary benefit for
yourself and you have committed gross misconduct within the
meaning of Chapter XI Regulation 3 (j) of Canara Bank Service
Code. You have acted in a manner prejudicial to the interest of the
bank and thereby committed a gross misconduct within the meaning
of Regulation 3 (m) of Chapter XI of Canara Bank Service Code.”
In the enquiry, the charges were found to have been established and the
disciplinary authority had also concurred with the same. The learned counsel
for the petitioner would first contend that the entire disciplinary action is
vitiated by malice. The petitioner is an union activist and a central committee
member of Canara Bank Staff Federation. According to the petitioner, the
strain in the relationship between himself and the Branch Manager had
triggered the disciplinary action. The learned counsel for the petitioner relied
on the decisions reported in (2009) 12 SCC 78 (Union of India and Others Vs
Gyan Chand Chattar) and AIR 1964 SC 719 (M/s.Khardah and Co.Ltd., Vs
The Workmen) in support of his contention that where it is shown that the
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W.P(MD)No.12499 of 2020
disciplinary action is vitiated by malice, the entire proceedings are liable to be
quashed.
6.I am not persuaded by the contentions advanced by the learned counsel
for the petitioner. It is quite possible that the relationship between the
delinquent and the Management was not cordial. But that cannot furnish a
defence when the petitioner is charged with a specific act of embezzlement.
The petitioner can only argue that he is innocent of the charge and that the
Management has failed to prove the same in the enquiry. It is no defence to say
that since he was an union activist, such charge has been laid against him. The
question of motive will pale into insignificance if there is convincing material
to drive home the guilt of the accused. The Management has endeavoured to
prove its case by relying on the CCTV footage.
7.The learned counsel for the petitioner would point out that the
petitioner also faced criminal prosecution on the same set of facts and it ended
in acquittal. My attention was drawn to the judgment dated 11.01.2023 in
C.C.No.80 of 2021 on the file of the learned Judicial Magistrate No. II,
Usilampatti. The argument of the learned counsel for the petitioner is that the
learned Trial Magistrate also viewed the very same CCTV footage and came to
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W.P(MD)No.12499 of 2020
the conclusion that the petitioner is not guilty. The judgment of acquittal has
not been put to challenge. His further contention is that before the enquiry
officer, no witnesses having direct knowledge was examined. Only two
officials who had allegedly conducted preliminary enquiry were examined. He
relied on the decisions reported in (2009) 2 SCC 570 (Roop Singh Negi Vs
Punjab National Bank & Others) and (2017) 2 SCC 308 (Allahabad Bank &
Others Vs Krishna Narayan Tewari) in support of this contention that even in
departmental enquiry there must be compliance with principles of natural
justice and that witnesses who were connected with the occurrence must be
examined. Since the Management failed to do so, the delinquent must be
exonerated. He pointed out that there is a settled system and procedure that the
Cashier is responsible for the money which he has received. On the occurrence
date, the petitioner was given 69 notes of Rs.2000/- denomination each and the
entry made in the relevant register also indicates so. This has been properly and
duly accounted by the petitioner. Therefore, it is too much for the Management
to now contend that there was some typographical error and that what was
given to the petitioner were 169 notes and not 69 notes. The contention of the
learned counsel for the petitioner is that the stand of the disciplinary authority
is not in consonance with the provisions of cash manual governing them.
According to him, the findings of the enquiry officer are thoroughly perverse
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W.P(MD)No.12499 of 2020
and that the matter warrants interference at the hands of this Court in exercise
of jurisdiction under Article 226 of the Constitution of India.
8.The charge against the petitioner is that on 12.06.2018, Shri.Niranjan
Kumar (Probation Officer) and Ms.Sri Devi handed over excess amount of
Rs.2,00,000/- in Rs.2,000/- denomination but failed to make proper entry.
Therefore, both these staff ought to have been examined as witnesses during
enquiry. It appears that they had also been charged with negligence and breach
of the cash manual provisions and action was initiated against them also. But
on that ground, they would not become co-delinquents. They would have
become co-delinquents only if they had also been party to the act of
embezzlement. The failure on the part of the disciplinary authority to examine
the aforesaid officials is really a lacuna. I only hope that appropriate
instructions will be issued to the presenting officers as to how the enquiry
should be conducted and as to how evidence let in. The persons who were
examined as witnesses during enquiry were those who conducted preliminary
investigation. They had no direct knowledge of the occurrence. It is like
conducting a criminal case by examining the investigation officer alone. The
moot question is whether on this ground one can come to the conclusion that
the charge against the petitioner has not been made out.
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W.P(MD)No.12499 of 2020
Before the enquiry officer, CCTV footage was played. The enquiry officer after
noticing the footage came to the following conclusion:
“The CCTV footage on 12.06.2018 of Vikkiramangalam branch is
marked as Exhibit MEX-6. The recording of CCTV is shown one hour
delay, hence for actual time, one hour to be added. On going through
the visuals thoroughly, the relevant events are as follows:
09.03.00 AM – The second drawer of the table of cashier is clearly
viewed as empty.
09.12.34 AM – The cashier is opening the cash box.
09.14.39 AM – The cashier is verifying the cash.
09.50.44 AM – First section of note was kept in the second drawer
10.20.06 AM – Second section of note was kept in second drawer
10.37.35 AM – Third section of note was kept in second drawer
11.44.57 AM – Fourth section of note was kept in second drawer
11.45.45 AM - Fifth section of note was kept in second drawer
12.33.12 PM – Sixth section of note was kept in second drawer
14.41.33 PM – CSE is taking out the sections of notes which were
kept in the second drawer as mentioned above and
keeping it on the top of the table on left hand
corner
14.50.24 PM – CSE receives a section of note from a customer
and keeping it above the sections kept on the top of
the table on left hand corner.
15.01.32 PM – CSE taking a brown cover from the drawer
15.01.52 PM – CSE taking the letter from his bag and putting it in
the brown cover and keeping it inside his bag
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W.P(MD)No.12499 of 2020
15.02.35 PM – CSE is taking a pink colour slip from the drawer of
his table and taking a section of note from the
sections kept on the top of left hand corner of the
table and covering the section with the slip and
keeping it in his black colour bag.
From the above it is evident that the CSE at 15.02.35 (time shown in
the footage) has taken a section (100 pieces of currency notes) of notes
from the top of the table and covered it with a pink colour slip and kept
in his bag. Considering the facts of the case that Sri Niranjan Kumar
had made wrong entry with respect to Rs.2000/- currency notes and the
shortage of amount was Rs.2,00,500/-, it can be concluded that Sri G
Kumaresan has pilfered a section of Rs.2000/- denomination.
The contention of DR that the CCTV footage evidence lacks logic and
reasoning, because unless it was proved with documentary evidence
that Rs.2 lac was given in excess as what was recorded in double lock
register while taking out cash and also after verification in the cash
register by the cashier duly authorized by an official in the sell vault is
not sustainable since it is proved that Sri Niranjan Kumar has made the
entry as 69 pieces of Rs.2000/- denomination instead of available 169
pieces and the cash was handed over to CSE inadvertently without
removing the 100 pieces intended for loading it in the ATM on
12.06.2018 and also the CCTV footage revealed that the CSE has taken
a bundle from the cash in the cash cabin and there was a shortage of Rs.
2,00,500/- in the cash at Vikkiramangalam branch on 12.06.2018.”
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W.P(MD)No.12499 of 2020
To satisfy my consciences, I called upon the learned counsel appearing for the
respondent Bank to play CCTV footage before me. I saw the CCTV footage
twice. I am more than satisfied that the conclusion arrived at by the enquiry
officer is sound and reasonable. In fact, the learned Judicial Magistrate also in
his judgment had noted that he could note the accused taking something. But to
the Judicial Magistrate’s eyes, it was not clear whether it was cash. It appears
that the prosecution had marked the CCTV footage pertaining to the act of
taking alone. They failed to play the entire CCTV footage. If the entire CCTV
footage is seen, one can come to the conclusion that what was taken and put in
the bag was the excess cash of Rs.2 Lakhs.
9.The enquiry officer had not jumped to such conclusion after viewing
the CCTV footage alone. He had taken into account the entire factual matrix.
It is well settled that the technical rules of evidence of law are not applicable to
departmental proceedings. Before the enquiry officer, two investigation reports
as well as the cash registers and also annexures were marked. The enquiry
officer had taken into account all the relevant aspects and then only concluded
that the charge against the petitioner has been established.
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W.P(MD)No.12499 of 2020
10.The petitioner was given full opportunity to place his case. Before the
disciplinary authority also, the petitioner gave his further representation. The
order passed by the disciplinary authority is also a reasoned one. The Hon'ble
Apex Court in the recent decision reported in (2021) 12 SCC 569 (The State of
Rajasthan & Others Vs Heem Singh) had dealt with the approach to be
adopted by the writ Court in the matter of disciplinary proceedings.
“37. In exercising judicial review in disciplinary
matters, there are two ends of the spectrum. The first embodies
a rule of restraint. The second defines when interference is
permissible. The rule of restraint constricts the ambit of
judicial review. This is for a valid reason. The determination of
whether a misconduct has been committed lies primarily
within the domain of the disciplinary authority. The judge does
not assume the mantle of the disciplinary authority. Nor does
the judge wear the hat of an employer. Deference to a finding
of fact by the disciplinary authority is a recognition of the idea
that it is the employer who is responsible for the efficient
conduct of their service. Disciplinary enquiries have to abide
by the rules of natural justice. But they are not governed by
strict rules of evidence which apply to judicial proceedings.
The standard of proof is hence not the strict standard which
governs a criminal trial, of proof beyond reasonable doubt, but
a civil standard governed by a preponderance of probabilities.
Within the rule of preponderance, there are varying
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W.P(MD)No.12499 of 2020
approaches based on context and subject. The first end of the
spectrum is founded on deference and autonomy – deference to
the position of the disciplinary authority as a fact finding
authority and autonomy of the employer in maintaining
discipline and efficiency of the service. At the other end of the
spectrum is the principle that the court has the jurisdiction to
interfere when the findings in the enquiry are based on no
evidence or when they suffer from perversity. A failure to
consider vital evidence is an incident of what the law regards
as a perverse determination of fact. Proportionality is an
entrenched feature of our jurisprudence. Service jurisprudence
has recognized it for long years in allowing for the authority of
the court to interfere when the finding or the penalty are
disproportionate to the weight of the evidence or misconduct.
Judicial craft lies in maintaining a steady sail between the
banks of these two shores which have been termed as the two
ends of the spectrum. Judges do not rest with a mere recitation
of the hands-off mantra when they exercise judicial review. To
determine whether the finding in a disciplinary enquiry is
based on some evidence an initial or threshold level of scrutiny
is undertaken. That is to satisfy the conscience of the court that
there is some evidence to support the charge of misconduct
and to guard against perversity. But this does not allow the
court to re-appreciate evidentiary findings in a disciplinary
enquiry or to substitute a view which appears to the judge to
be more appropriate. To do so would offend the first principle
which has been outlined above. The ultimate guide is the
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W.P(MD)No.12499 of 2020
exercise of robust common sense without which the judges’
craft is in vain.”
11.It is well settled that there are varying approaches to the question of
proof. In criminal proceedings, the standard of proof is beyond reasonable
doubt. In civil cases, it is preponderance of probabilities. In departmental
enquiries, it is “proof based on some evidence”. The case on hand is not
anchored on some evidence. It is based on solid evidence in the form of CCTV
footage. The recent decision of the Hon'ble Apex Court enables the writ Court
interfere only when the findings are vitiated by perversity or it is based on no
evidence. Such is not the case here. I decline to interfere.
12.This writ petition is dismissed. There shall be no order as to costs.
Consequently, connected miscellaneous petition is closed.
16.06.2023
Index : Yes / No
Internet : Yes / No
NCC : Yes / No
MGA
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W.P(MD)No.12499 of 2020
To
1.The Director General,
Railway Protection Special Force,
Railway Board,
Rail Bhavan,
New Delhi.
2.The Inspector General cum Principal,
Chief Security Commissioner,
Railway Protection Special Force,
Railway Board,
Rail Bhawan,
New Delhi.
3.The Deputy Inspector General cum
Chief Security Commissioner,
Railway Protection Special Force,
Railway Board,
Rail Bhawan, New Delhi.
4.The Commanding Officer,
5th Battalion Railway Protection Special Force,
Kimber Garden,
Khajamalai,
Thiruchirapalli.
5.The Assistant Commissioner,
'D' Coy, 5th Battalion Railway Protection Special Force,
Kimber Garden,
Khajamalai,
Thiruchirapalli.
6.The Inspector,
5th Battalion Railway Protection Special Force,
Kimber Garden,
Khajamalai,
Thiruchirapalli.
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W.P(MD)No.12499 of 2020
G.R.SWAMINATHAN, J.
MGA
W.P(MD)No.12499 of 2020
and
W.M.P(MD)No.10677 of 2020
16.06.2023
https://www.mhc.tn.gov.in/judis
