Madras High Court

P.Rajendran vs The General Manager/ Appellate ... on 30 October, 2024

                                                                                    W.P.No.22852 of 2013

                                    IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                  Reserved on : 13.08.2024           Pronounced on : 30.10.2024

                                                             CORAM

                      THE HONOURABLE MR.JUSTICE MUMMINENI SUDHEER KUMAR

                                                     W.P.No.22852 of 2013
                                                             and
                                                      M.P.No.1 of 2013


                     P.Rajendran                                                          ... Petitioner

                                                              Vs.

                     1. The General Manager/ Appellate Authority,
                        Canara Bank, Personnel Management Section,
                        Personnel Wing, Head Office, 1/2, JC Road,
                        Bengaluru, Karnataka State.

                     2. The Deputy General Manager/ Disciplinary Authority,
                        Canara Bank, Disciplinary Action Cell,
                        Circle Office, Chennai.                                         ... Respondents



                     Prayer: Writ Petition is filed under Article 226 of the Constitution of India,
                     to issue a Writ of Certiorarified Mandamus, calling for the impugned order
                     dated 18.2.2000 passed by the 2nd respondent and the impugned order dated
                     27.6.2003 passed by the 1st respondent and quash the same, consequently
                     direct the respondents to reinstate the petitioner into service within a
                     reasonable time to be fixed by this Honourable Court, with continuity of
                     service from the date of dismissal, with all attendant benefits.

                     Page 1 of 22

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                                                                                   W.P.No.22852 of 2013




                                      For Petitioner         : Mr.P.Rajavel for Mr.R.Neelakandan

                                      For Respondents        : Mr.C.Seethapathy


                                                        ORDER

This writ petition has been filed challenging the order, dated

18.02.2000 passed by the Respondent No.2, dismissing the petitioner

from service and the order dated 27.06.2003 passed by the Respondent

No.1 on an appeal filed by the petitioner, confirming the punishment of

dismissal from service in the year 2013 and seeking a consequential

relief to reinstate the petitioner into service.

2. The brief facts that are relevant for disposal of this writ

petition are as under:-

2.1. The petitioner herein, while working as a 'Peon' in

Rasipuram Branch of the respondent Bank, Salem Division, he was

subjected to departmental proceedings by issuing a charge-sheet dated

21.06.1997 containing two charges. The said charges reads as under:-

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“CHARGE I:

(a) An S.B. account bearing No.10651 was opened at the Rasipuram branch during the year 1991 by one Sri A. Natesan and the petitioner had introduced this new account holder for the purposes of opening the account. Sri A. Natesan had given an outstation cheque for Rs.50,000/- for collection on 10.06.1996. This instrument was realised and credited to his S.B. account on 21.06.1996. However, when Sri A.Natesan visited the branch on 24.06.1996 and enquired with the petitioner about the realisation of the cheque sent for collection, the petitioner failed to furnish the correct information to him. Instead, the petitioner obtained Sri A.Natesan's signature on a blank withdrawal order form and utilised the same to withdraw Rs.20,000/- from the S.B. account of Sri A.Natesan. The petitioner thus misappropriated a sum of Rs.20,000/- on 24.06.1996.

(b) Similarly the petitioner had obtained the signature of Sri A.Natesan on another withdrawal order form and utilised the same to withdraw a sum of Rs.16,000/- as against the intended sum of Rs. 10,000/- by the account holder. The petitioner had thus misappropriated a sum of Rs.6,000/- from the SB account of Sri A.Natesan by misusing his position in the bank.

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(c) The tokens bearing Nos.T-52 and T-57 for the respective withdrawals were issued by the petitioner and the original pass book of the customer was also retained by the petitioner. In order to conceal his fraudulent acts, the petitioner subsequently issued a fresh pass book with false entries so as to show a higher balance than actual balance as reflected in the ledger sheet pertaining to the subject S.B. account No.10651 of Sri A. Natesan. The petitioner had thus tampered with and falsified the records of the bank to derive undue pecuniary benefits.

Charge-II:

(a) The petitioner, while working at the bank's Rasipuram branch had befriended the family members of one Sri M.Kandasamy Gounder of Selathar Thottam, Moolapallipatti P.O., Rasipuram Taluk and received funds from them for investing in term deposits at the branch. In this process, by taking advantage of the friendship and by misusing his position in the bank, the petitioner indulged in misappropriation of a major portion of the amounts received from the said customers. The details are as follows:

                                  Name of the Receipt    Amount        Amount            Amount
                                  Depositor   Number and received   by Invested          misapprop
                                              date       Petitioner    (Rs.)             riated by
                                                         (Rs.)                           petitioner
                                                                                         (Rs.)



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                                  K.Palanivel FDR 471/95 1,00,000/-         10,000/-    90,000/-
                                              – 18.12.95
                                  K.Palanivel KDR 337/96 25,000/-           2,500/-     22,500/-
                                              – 21.05.96
                                  Sellammal    KDR 298/96 1,00,000/-        1,000/-     99,000/-
                                               – 06.05.96

(b) After depositing lesser sums and obtaining the deposit receipts for the same, the petitioner altered the figures in the deposit receipt to a higher sum equivalent the actual amount received from the customers and also altered the interest and maturity value accordingly in order the amount misappropriated from the customers remitances before the deposit receipts reached the hands of the customers.”

2.2. Thereafter, an enquiry was conducted into the matter and

the Enquiry Officer came to the conclusion that both the charges are

proved against the petitioner and thereafter, a copy of the report of the

Enquiry Officer was furnished to the petitioner affording an opportunity

to submit a representation. Accordingly, it was thereafter, on considering

the representation and the said report of the Enquiry Officer, the

Respondent No.1 passed the order, dated 18.02.2000, imposing the

punishment of dismissal from service. Thereafter, the petitioner filed an

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appeal before the Respondent No.2, and the said appeal was rejected by

an order dated 27.06.2003, confirming the punishment of dismissal from

service passed by the Respondent No.1.

2.3. Thereafter, the petitioner has chosen not to question the

order of dismissal from service and in any way, accepted the same and

kept quiet for long time.

2.4. Simultaneously, while subjecting the petitioner to

departmental proceedings, criminal proceedings were also initiated

against the petitioner for the offences under Sections 420, 408 and 468

of IPC in C.C.No.262 of 2001 on the file of the Judicial Magistrate,

Rasipuram and in the said case, the petitioner was convicted and

aggrieved by the said judgement, dated 13.03.2006, the petitioner filed

Criminal Appeal No.25 of 2006 on the file of the Additional District

Sessions Judge, Fast Track Court, Namakkal. In the said criminal appeal,

the petitioner was acquitted by the appellate court by an order, dated

14.10.2006.

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2.5. It was thereafter, the petitioner claimed to have submitted

a representation dated 26.02.2007 before the Respondent No.1,

requesting to revoke the order of dismissal and to reinstate the petitioner

into service. It was thereafter, complaining the inaction on the part of

Respondent No.1, the petitioner filed W.P.No.29251 of 2008 before this

Court and the said writ petition came to be dismissed by an order, dated

29.02.2012 on the ground that, in the absence of petitioner challenging

the order of dismissal and the order of the appellate authority, the

petitioner is not entitled for a direction to consider the representation

dated 26.02.2007.

2.6. It was thereafter in the year 2013, the petitioner

approached this Court by filing the present writ petition, questioning the

orders that were passed in the years 2000 and 2003, contending that the

petitioner is entitled for reinstatement into service, consequent upon his

acquittal in the criminal proceedings on 14.10.2006. Besides the said

ground, the learned counsel for the petitioner also pointed out certain

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defects alleged to have been committed by the Enquiry Officer in the

process of conducting enquiry, including the violation of the principles

of natural justice. He also further contended that the charges that are

framed against the petitioner in the departmental proceedings as well as

in the criminal proceedings are one and the same and the evidence relied

upon in both the proceedings is also one and the same.

3. On the other hand, Mr.C.Seethapathy, learned counsel for

the respondent Bank submitted that the impugned orders, dated

18.02.2000 and 27.06.2003 passed in the year 2000 and 2003 have

attained finality for want of challenge to the said proceedings by the

petitioner till the year 2013 and merely because the petitioner is

acquitted in the criminal proceedings, the same would not result in

automatically taking away the effect of the order of dismissal passed in

the departmental proceedings. He also further contended that the

standard of evidence that is required to prove the charges in the

departmental proceedings is totally different from the standard of the

evidence that is required to establish a criminal proceedings and

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therefore, the impugned orders cannot be interfered with merely because

the petitioner was acquitted in the criminal proceedings. He also placed

reliance on the decisions of the Hon'ble Apex Court in the case of “State

Bank of India and others -vs- P.Zadenga” reported in 2023 (10) SCC

675 and in the case of “Himmat Khan -vs- State of Haryana and

others” reported 2024 SCC OnLine P&H 1969.

4. This Court has carefully considered the submissions made

on either side and also perused the entire material on record.

5. From the perusal of the two charges that are framed against

the petitioner, it is evident that they are very serious in nature. The

charge is that, the petitioner, while working as a 'Peon' in the respondent

Bank, has withdrawn the amounts from the accounts of the customers

without their knowledge. The said charges were held to have been

proved by the Enquiry Officer as early as in the year 2000. For the

reasons best known, the petitioner has not chosen to question the order

of dismissal from service dated 18.02.2000 and the order passed by the

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appellate authority dated 27.06.2003, till the year 2013 i.e., almost for a

period of decade, the petitioner has chosen not to question the findings

that were recorded by the Enquiry Officer as well as the disciplinary

authority. But, it is only after the petitioner was acquitted in the criminal

proceedings by a Judgement, dated 14.10.2006, the petitioner claimed to

have submitted a representation dated 26.02.2007. Even the said claim of

the petitioner of submitting of the said representation was also disputed

by the respondents in the previous round of litigation. Inspite of the

same, the petitioner has not chosen to produce any material in support of

his contention nor a copy of such representation is placed before this

court. Hence, this court has no option except to assume that there was no

such representation submitted by the petitioner. No doubt, the petitioner

approached this court by filing W.P.No.29251 of 2008 in the year 2008,

however, the said writ petition came to be dismissed on 29.02.2012. It

was thereafter, after a lapse of about 1½ years, the petitioner approached

this court by filing the present writ petition.

6. Though several grounds were raised in the affidavit filed in

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support of the writ petition pointing out certain defects in the procedure

that was followed during the course of enquiry and also on the contents

of the impugned orders, the same cannot be gone into at this length of

time for the simple reason that, the petitioner has accepted all such

findings and allowed them to remain for more than a decade and started

raising his little finger only after he was acquitted in the criminal

proceedings.

7. As already noted above, the petitioner was acquitted in the

criminal proceedings on 14.12.2006, but the present writ petition came

to be filed only in the year 2013 challenging the orders passed in the

years 2000 and 2003. If the petitioner is really aggrieved by the

procedure that was followed during the course of enquiry of the

departmental proceedings or aggrieved by the findings that were

recorded therein, the petitioner ought to have taken steps to question the

said orders immediately thereafter. Hence, this court is not inclined to go

into the defects that are pointed by the petitioner against the enquiry, the

procedure that was followed during the course of enquiry and the

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findings recorded by the disciplinary authority as well as the appellate

authority.

8. Then, the only question that remains to be considered is, as

to whether the petitioner is entitled for the relief of quashing the

impugned orders only on the ground of acquittal in the criminal

proceedings. The straight answer to the same is an 'Emphatic No'. It is

only in case, if the charges that are framed in the departmental

proceedings as well as criminal proceedings are one and the same and

the evidence that was adduced or relied upon for establishing the charges

in both the charges are also one and the same, then, the question of

considering the claim of the petitioner to quash the impugned orders on

the ground of his acquittal would arise. But, in the instant case, either in

the entire affidavit filed in support of the writ petition or during the

course of arguments before this Court, no such attempt was made to

establish that the nature of charges in both the proceedings are identical

and the evidence that was relied upon is also one and the same. It is

settled law that the standard of evidence that is required for establishing

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a criminal charge is much higher and should be beyond all reasonable

doubt, unlike in the departmental proceedings, wherein the

preponderance of probabilities would be sufficient.

9. The charges levelled against the petitioner in the criminal

proceedings and the evidence adduced therein by the prosecution may

not be sufficient for establishing the charges under Sections 408, 420

and 468 of IPC. But, in the departmental proceedings, the circumstantial

evidence and preponderance of probabilities itself is sufficient to hold

the charges as proved. That is what is done in the case on hand and as

already noted above, the petitioner has accepted the said findings and

chosen not to challenge the findings recorded in the departmental

proceedings. It is only after the petitioner was acquitted in the criminal

proceedings, he has chosen to challenge the impugned orders belatedly.

10. As rightly relied upon by the learned counsel appearing for

the respondents, the Hon'ble Apex Court in the case of “State Bank of

India and others -vs- P.Zadenga” reported in 2023 (10) SCC 675, held

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as under:-

                                           “20. Further,      this     Court     in M.    Paul
                                  Anthony v. Bharat        Gold      Mines     Ltd. [M.   Paul

Anthony v. Bharat Gold Mines Ltd., (1999) 3 SCC 679 :

1999 SCC (L&S) 810] elucidated the following principles in dealing with departmental and criminal proceedings simultaneously:

(a) No bar exists on both proceedings continuing simultaneously, though in an appropriate, separate forum.

(b) If said proceedings are on identical/similar facts and if the charges levied against the delinquent employee are of a serious nature, then it would be desirable if the departmental proceedings are stayed till the conclusion of the other.

(c) The nature of the charge or the involvement of complex questions of law and fact depends on the facts and circumstances of each case i.e. the offence, nature of the case launched, evidence and material collected.

(d) Sole consideration of the abovementioned factors cannot be the reason to stay the departmental proceedings.

(e) It must be remembered that departmental proceedings cannot be unduly and unjustly delayed.

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(f) If the criminal proceedings are delayed, the other, having been stayed on account thereof, may be resumed to conclude the same at the earliest. This may result in two possibilities : either the vindication of the position of the delinquent employee or he being found guilty, enabling the department concerned to show him out the door.

….

25. In Nelson Motis v. Union of India [Nelson Motis v. Union of India, (1992) 4 SCC 711 : 1993 SCC (L&S) 13] it was observed that the question whether departmental proceedings could have continued in the face of acquittal in criminal proceedings had no force as : (SCC p. 714, para 5) “5. … The nature and scope of a criminal case are very different from those of a departmental disciplinary proceeding and an order of acquittal, therefore, cannot conclude the departmental proceeding.” …..

26. In C. Nagaraju [Karnataka Power Transmission

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Corpn. Ltd. v. C. Nagaraju, (2019) 10 SCC 367 : (2020) 1 SCC (L&S) 92] it was observed : (SCC p. 371, para 9) “9. Acquittal by a criminal court would not debar an employer from exercising the power to conduct departmental proceedings in accordance with the rules and regulations.

The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. [Ajit Kumar Nag v. Indian Oil Corpn. Ltd., (2005) 7 SCC 764 : 2005 SCC (L&S) 1020] In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment, as the case may be, whereas in the criminal proceedings, the question is whether the offences registered against him under the PC Act are established, and if established, what sentence should be imposed upon him. The standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are significantly distinct and different. [State of Rajasthan v. B.K. Meena,

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(1996) 6 SCC 417 : 1996 SCC (L&S) 1455] ” ….

41. The nature of proceedings being wholly separate and distinct, acquittal in criminal proceedings does not entitle the delinquent employee for any benefit in the latter or automatic discharge in departmental proceedings.”

11. Similarly, the High Court of Punjab and Haryana in the case

of “Himmat Khan -vs- State of Haryana and others” reported in 2024

SCC OnLine P&H 1969 held as under:-

“ 9. It has been held time and again by the Apex Court that in departmental proceedings pertaining to the banks, scope for interference by way of judicial review is less as the level of responsibility is of a much higher degree and the confidence in the employee has to be complete. It is settled principle that on the departmental side, the principle of preponderance of probabilities is to be kept in mind whereas on the criminal side, the principles are that the prosecution has to prove his case beyond a shadow of doubt. This aspect has also been dilated time and again.

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10. The nature and scope of criminal cases are very different from those of departmental proceedings and merely on account of an acquittal it cannot be held that departmental proceedings have also to be concluded in favour of the employee. In a criminal case, the prosecution has to prove his case beyond a shadow of doubt in the shape of evidence whereas in a departmental proceedings, on the basis of legally admissible evidence and on the preponderance of probabilities, the charge can be established and therefore, the two operate in different fields. Reliance can be placed upon the judgment of the Apex Court in Maharashtra State Road Transport Corporation v. Dilip Uttam Jayabhay, 2022 (1) SCT 340 wherein while allowing the appeal, the Apex Court upheld the order of dismissal of the workman from service passed by the disciplinary authority. In the said case, the workman was working as Driver and plying a passenger bus and met with an accident with a jeep. He was also proceeded under Section 279 IPC and came to be acquitted and therefore, got reinstatement since the Industrial Tribunal came to the conclusion that drivers of both the vehicles were negligent. The said order had been upheld by the High Court and was then taken to the Supreme Court wherein the reasoning which prevailed

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with the Apex Court was that the Industrial Court was in error in laying stress on the acquittal of the workman by the Criminal Court. The fact that disciplinary proceedings had been initiated and it was on conclusion of an enquiry he had been dismissed by noting that the workman was driving the vehicle at a great speed and pushed the jeep by 25 feet. Resultantly, it was held that the workman was negligent and it could not be said that the dismissal was shocking and disproportionate or that it was unfair labour practice. The record of the case had also been seen that the workman was in service for 3 years and was punished 4 times during that period.

11. Similarly, in State Bank of India v. P. Zadenga, (2023) 10 SCC 675, it was held by the Apex Court that acquittal in criminal proceedings does not amount to automatic discharge of disciplinary proceedings and the standard of proof, the mode of inquiry and the rules governing inquiry and trial in both the cases are different. The aspect of responsibility of the bank officials was also kept in mind since the workman in that case was an employee of the State Bank of India and 3 different FIRs had been registered against him regarding non-deposit of the amounts received for which challan had been issued. Resultantly, while placing

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reliance upon United Commercial Bank v. P.C. Kakkar, (2003) 4 SCC 364, it was held that a bank officer is required to exercise higher standards of honesty and integrity. Relevant portion of the said judgment which was quoted, reads as under:

“14. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the 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 inseparable from the functioning of every officer/ employee of the bank… The very discipline of an organization 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.”

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In the light of the above settled legal position, this Court is of the considered

view that the impugned orders cannot be interfered with on the ground that

the petitioner is acquitted in the criminal proceedings in Criminal Appeal

No.25 of 2006 and equally the petitioner is also not entitled for any relief on

the ground of delay and latches.