Brij Mohan Gupta vs Canara Bank Andors
2022 Latest Caselaw 5294 Raj/2

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 4344/2015

Brij Mohan Gupta S/o Late Shri Badri Prasad Gupta, 272,
Rajendra Nagar, Bharatpur Raj.
                                                                   ----Petitioner
                                   Versus
1.     Canara Bank Through its General Manager, HR Wing,
       Head Office, 112, J.C. Road, Banglore.
2.     Dy. General Manager, Human Resources Wing., Head
       Office, 112, J.C. Road, Banglore.
3.     Assistant General Manager, Canara Bank HRM Section,
       Circle Office, 1-2 Orbit Mall, Ajmer Road, Jaipur.
                                                                ----Respondents

For Petitioner(s) : Mr. Vigyan Shah, Adv. with Mr. Kamlesh Sharma, Adv.

Mr. Akshit Gupta, Adv.

Mr. Pukhraj Chawla, Adv.

Ms. Pragya Seth, Adv.

Ms. Sarah Sharma, Adv.

For Respondent(s) : Ms. Anita Agarwal, Adv. with Mr. Laxmikant Adv.

Mr. Vikas Soni, Adv.

Mr. Vishal Karnani, Adv.

Mr. Sanjay Kumar Gupta, Officer, Canara Bank Mr. Abhinav Vashisth, Officer, Canara Bank

HON'BLE MR. JUSTICE SAMEER JAIN

Judgment

Reportable

Judgment Reserved on 01.07.2022 Judgment Pronounced on 29.07.2022

1. Present writ petition is filed being aggrieved of

termination order dated 31.03.2014 by which the petitioner was

dismissed from service in view of the charge-sheet dated

(2 of 12) [CW-4344/2015]

09.01.2013. It is also noted that against the said dismissal order,

an appeal was preferred and the same was also dismissed by the

Appellate Authority vide order dated 31.01.2014. Review

application filed by the petitioner was also rejected vide order

dated 29.11.2014 and therefore the present writ petition has been

filed by the petitioner.

2. It is submitted by learned counsel for the petitioner that the

petitioner was appointed on 01.05.1984 on the post of clerk with

the respondent-Bank against substantive vacancy through regular

selection. He was promoted on 02.04.2005 as a Junior Manager

Grade-1. The cause and controversy in the matter arose when on

21.12.2012, while the petitioner was working as an Officer in

Karauli Branch of respondent-Bank, he came to be suspended

under contemplation of disciplinary proceedings and a show-

cause-notice (SCN) dated 08.02.2013 was issued regarding

certain irregularities observed in the advances portfolio of Branch

in relation to certain accounts.

3. In response to the said SCN, the petitioner submitted a

detailed reply on 18.03.2013 refuting each and every charge

levelled against him. It is submitted that Karauli Branch was a

small branch having staff of only three employees; a Manager,

petitioner himself and a IVth class employee, wherein the

petitioner was discharging duties of handling Cash and Report

Section, used to make entries only on the directions given by the

Manager. Impugned charge-sheet (Annexure-4) was issued and

served under Regulation 6 of Canara Bank Officer Employees

(Discipline and Appeal) Regulation, 1976 (in short 'Discipline

Regulation 1976') for violation of Regulation 3(1) read with

Regulation 24 of Canara Bank Officer Employees (Conduct)

(3 of 12) [CW-4344/2015]

Regulation, 1976 (in short 'Conduct Regulation 1976') wherein

allegation for mala-fide, misconduct, dishonesty with authority

were specified along with charges of connivance with Manager Mr.

Bairwa.

4. In response to the said charge-sheet, a reply dated

04.09.2013 was furnished and the allegations levelled were

refuted in entirety. On 31.01.2014, disciplinary authority, after

considering the reply to the said charge-sheet, issued an order for

punishment of dismissal from services under Regulation 4(J) of

Disciplinary Regulation 1976. Against the same, an appeal was

preferred and the same was dismissed vide order dated

14.08.2014. Thereafter, review application was also rejected by

Reviewing Authority after considering the order in original passed

in pursuance to the charge-sheet, vide order dated 29.11.2014.

5. Learned counsel for the petitioner has contended that

while acting as an Officer, the petitioner had carried out his duties

on the instructions of Manager-Mr. Bairwa. On the said instructions

he had recorded certain entries in favour of family members of the

Manager. By the said entries the petitioner was not at any

advantage, nor the said entries have given any personal benefit to

the petitioner. It is also submitted that the Manager, Mr. B.L.

Bairwa, committed all fake entries levelled in the charge-sheet by

misusing trailer password of the petitioner and the entire

embezzled amount was used exclusively by him for his own

benefit.

6. The petitioner admits opening saving bank accounts in

the name of his wife and children, however he maintains that he

has not carried out any fraudulent transactions which gave him, or

any of his family members, any personal/individual benefit. As per

(4 of 12) [CW-4344/2015]

the learned counsel for the petitioner, there is no mention of any

loss to the bank in the charge-sheet, nor has any quantified loss

been attributed to the petitioner. Learned counsel has further

submitted that the Manager has accepted the fault/misconduct on

his part and has deposited the entire amount quantifying to

approx Rs.9.65 lakhs in toto which shows petitioners bona fide.

7. Learned counsel has further submitted that the

respondent-Bank has registered FIR on 17.12.2013 on the same

set of facts, wherein a challan and final report were filled after due

investigation on the same set of facts and circumstances, wherein

petitioner's role in the alleged transactions was ruled out and he

was exonerated and the only liability and wrong was qua the

Branch Manager, Mr. Banwari Lal Bairwa. Learned counsel has

further submitted that it is settled position of law that if on the

same set of facts and circumstances, criminal proceedings are set

aside and held to be not maintainable, then civil proceedings

cannot be initiated and/or continued, for which he has placed

reliance on H.L. Gulati vs. Union of India (UOI) and Ors.

reported in 2015 (12) SCC 408.

8. Learned counsel has further submitted that there is

difference between misconduct and negligence. In the case in

hand, without prejudice to his argument, he has submitted that

the actions of the petitioner may be treated as case of negligence

as the petitioner has only opened accounts in the name of his

family members but has not committed any act of embezzlement,

nor has he availed any profit either in his favour or in favour of his

family members. It is submitted that for such act of negligence,

severe punishment of dismissal is neither warranted nor legally

justified. There was no loss to the Bank as the entire money has

(5 of 12) [CW-4344/2015]

been deposited by the General Manager himself after

acknowledgment of misconduct on his part. As such, no loss

accrued to the Bank and therefore he submits that as per settled

position of law, as held by Hon'ble Apex Court in Kailash Nath

Gupta vs. Enquiry Officer, (R.K.Rai), Allahabad Bank and

Ors. reported in 2003 (9) SCC 480, the principle of

proportionality has to be followed and therefore in his case

punishment of dismissal is grossly disproportionate to the charges

levelled against him, especially when in criminal proceedings for

the same set of facts and circumstances, he has been exonerated

and the respondent-Bank did not file any appeal against the same.

9. Learned counsel for the petitioner has also relied upon

Hon'ble Apex Court's judgment of Inspector Prem Chand vs.

Govt. of NCT of Delhi and Ors. reported in 2007 (4) SCC 566,

Roop Singh Negi vs Punjab National Bank and Ors. reported

in 2009 (2) SCC 570, Narinder Mohan Arya vs. United India

Insurance Co. Ltd. And Ors. reported in 2006 (4) SCC 713.

Learned counsel has placed reliance on Webster dictionary for the

definition of the word 'lapse'. He has pointed out that

'lapse'/'negligence' is different from misconduct. Learned counsel

has further relied upon Hon'ble Apex Court's judgment titled as

United Bank of India Vs. Biswasnath Bhattacharjee reported

in 2022 SCC OnLine SC 108, and has submitted that in this

similar case it was held that the case is of negligence and not of

misconduct and therefore, the employee should be given a

proportional punishment/treatment and not high magnitude

punishment of dismissal. Finally, learned counsel has submitted

that once in the criminal proceedings on the same set of facts,

(6 of 12) [CW-4344/2015]

proceedings are set aside, the same can neither be initiated nor

continued under civil or service law.

10. Per contra, learned counsel for the respondent-Bank,

Ms. Anita Aggarwal, has submitted that it is admitted by the

petitioner that he had shared his confidential password with the

Bank Manager, Mr. B.L. Bairwa and the amount of Rs.9.65 lakhs

was misappropriated and siphoned off to different accounts which

were not entitled for that money. It is submitted that the

petitioner misused his official position by debiting GL & LCCR

heads unauthorisedly causing huge financial losses to the

respondent-bank. The above acts of the petitioner raised huge

questions upon his honesty and integrity, which also caused loss

of reputation of the respondent Bank. Therefore, charges were

levelled against the petitioner for violation of Regulation 3(1) read

with Regulation 24 of Conduct Regulations 1976 and a charge-

sheet dated 09.08.2013 was issued with specific allegations.

Learned counsel has emphasized that respondent Bank afforded

all reasonable opportunity of hearing to the petitioner and only

after considering his response/defence, arrived at the conclusion

that petitioner was guilty for his involvement in misutilizing the

proceeds of OCC/KCC/Diary Loans/Kisan Suvidha/ALLHV, Canara

Mobile loans which he had appraised/recommended at the branch

and also misused his official position by debiting GL & LCCR heads

unauthorizedly during his tenure at Karauli branch and the money

was siphoned off by merging the transactions and giving credits to

different accounts not entitled for that money. As it was held that

the actions of the petitioner were not bona fide and because the

transactions were not genuine normal banking transactions,

(7 of 12) [CW-4344/2015]

petitioner was dismissed from service as envisaged under

Regulation 4(j) of Discipline Regulations 1976.

11. Learned counsel further submitted that actions of the

petitioner are rightly construed as 'misconduct' and not

'negligence' because the period of scam was distributed between

06.06.2010 to 21.12.2012, which is a period of two and a half

years and the same was done with mala fide intentions in different

Bank accounts on different dates. Learned counsel has further

submitted that as per charge No.3, the Officer/petitioner has

opened savings accounts in the name of family members and as

per mandate of Regulation 15(i), 15(iv) and 20(4) of Conduct

Regulations 1976, did not report the transactions made in these

accounts to the Controlling Officer, which insinuated that he was

discharging his duties with dishonesty and without integrity &

devotion. Learned counsel has further relied on Articles of Charge-

III, wherein, the petitioner opened Bank accounts in the name of

his wife (Smt. Manju Gupta), son (Mayank Goyal) and daughter

(Ms. Mahak Goyal) wherein several transactions involving huge

amounts were made without reporting them to the bank, which is

grave misconduct and attracts major penalty. Learned counsel has

further submitted that after consideration of the case, the Original

Authority, Appellate Authority and the Reviewing Authority, in

speaking orders, have confirmed all the charges levelled against

the petitioner in the charge-sheet except for sixth charge which

was half proven. It is submitted that in view of proven charges,

the Bank has all the reasons to have a justifiable lack of

confidence, which having regard to nature of duties performed

made it necessary in the interest of the Bank to terminate the

(8 of 12) [CW-4344/2015]

services of the petitioner by imposing punishment of "Dismissal

which shall be a disqualification for future employment".

12. With regard to criminal proceedings on the same facts

and circumstances, it is submitted that the departmental enquiry

was initiated on the basis of charge sheet dated 09.08.2003, and

the charges contained in the charge-sheet were never

considered/inquired into in criminal proceedings. The respondent

Bank had initiated departmental proceedings against the petitioner

in accordance with the Rules and Regulations of the Bank for

specific charges as mentioned in the charge-sheet and for which

specific punishment/penalties are also prescribed. The respondent

Bank has proceeded totally independent of the criminal case and

has proved the charges based on the evidence adduced during the

domestic enquiry. Though the petitioner was exonerated but the

facts that he admitted sharing of confidential password and that

he opened savings account in the name of his family members

were not considered in the criminal proceedings. In the light of

above, it is contended that the argument of same set of

circumstances on law and facts, in the present case, is not made

out. Learned counsel has further placed reliance on the Hon'ble

Apex Court judgment of Chairman & Managing Director,

United Commercial Bank and Ors. Vs. P.C. Kakkar reported in

(2003) 4 SCC 364 and has submitted that in the cases where the

two proceedings are in different context and reliance is also placed

on different laws in service matters, even if no loss is caused to

the Bank and criminal case is closed, the same cannot be a bar to

invoke disciplinary proceedings against the accused. Learned

counsel has also submitted that judgments cited by learned

counsel for the petitioner are not relevant for the above said

(9 of 12) [CW-4344/2015]

reasons. Learned counsel has further submitted that in the case in

hand, only two Bank employees were there in the small Branch

who misused the funds, acted dishonestly, committed breach of

trust not only qua the Bank/employer, but also qua the customers

for a long period of two and a half years. Therefore, it is not a

case of mere negligence and as per the rules, it calls for major

penalties. Learned counsel has further submitted that as per

settled position of law, in case of concurrent finding and speaking

orders, the Hon'ble Court should be slow to entertain the petitions

for judicial review under Article 226 of the Constitution of India

except when there is gross error, manifest error on the face of

record or failure of justice.

13. Heard learned counsel for the parties, scanned the

record of the petition and considered the judgments cited at Bar.

14. Upon consideration of all, it is observed that in the case

in hand, the Manager Mr. Bairwa and the petitioner were the only

white collar employees in the Karauli branch. This court is of the

view that the transactions were not genuine normal banking

transactions, they were carried out mala fidely and the money was

siphoned off by merging the transactions and giving credit to

different accounts not entitled for that money. The petitioner

admittedly shared his confidential password with the manager,

against the bank norms and guidelines, and this practice of

fraudulent transactions continued for a period of over 2 years and

at no point of time did the petitioner changed his password

despite being fully aware of the nature of transactions. Such an

act cannot be considered as mere negligence, for the simple

reason that it was not done just once or twice without the

knowledge of the petitioner, but continued throughout the period

(10 of 12) [CW-4344/2015]

in a proportionate manner. It is also reflected from the charge-

sheet and impugned orders that the petitioner had opened saving

bank accounts in his own name as well as in the names of his

wife, Smt. Manju Gupta, son, Mr. Mayank Goyal and daughter, Ms.

Mahek Goyal and made inter accounts transactions with

customers/borrowers of branch involving huge cash transactions

without informing the same to the controlling office, which was a

clear violation of provisions of Regulations 15(1), 15(4) & 20(4) of

Conduct Regulations 1976 and as such breached the faith not only

qua the Bank but also acted in fraudulent and mala-fide manner

with the customers. The said charge have been found proved by

the Disciplinary Authority, Appellate Authority as well as the

Reviewing Authority. The said fact of opening and maintaining

accounts of family members was not considered in the criminal

enquiry/proceedings, which itself was concluded in hastened

manner. For whatever reason, the same was not appealed by the

respondent-Bank, which is unfortunate.

15. It is also admitted by the petitioner that he has shared

his confidential password. The contention of the petitioner, that

the averments in the police complaint/FIR as well as the charge

sheet issued by bank are identical, is also incorrect. The reliance

placed by learned counsel for the petitioner on different case laws

is distinguishable. In the case in hand, the case before the Police

Department and before the Disciplinary Authority was under

different provisions. Charges levelled in the charge-sheet dated

09.08.2013 were never considered by the Police Authorities,

rather their own enquiry/investigation was ill founded.

16. Hon'ble Apex Court, in series of judgments including

P.C. Kakkar (supra), has held that if there is a misconduct, then

(11 of 12) [CW-4344/2015]

nullity in criminal case cannot come as a bar to disciplinary

proceedings, especially when they are on different footing under

different rules/regulations and in the case of fiscal

transactions/banking, acquittal in a criminal case is not

determinative of commission of misconduct. Hon'ble Apex Court

categorically held that it would depend upon the facts of each case

and have no universal application. In this regard, the dictum of

Hon'ble Apex Court in the case P.C. Kakkar (supra) is fairly valid

and applicable in the present case.

17. It is also held time and again that the scope of judicial

review and interference in the service matters, departmental

enquiry is limited and is rather impermissible especially when the

charge-sheet, order in original, order in appeal and review order

are passed on logical conclusion and are speaking in nature and

are not shocking conscience of the court. The present case is not

falling under the category of rarest of rare case and there is no

manifest error in the impugned orders under challenge. The

argument of learned counsel for the respondent-Bank is worth

consideration as in both the proceedings i.e. disciplinary

proceedings and criminal proceedings, the charges were

altogether different and distinct, exclusive and independent to

each other. Hon'ble Apex Court in the case of Chairman-cum-

M.D., T.N.C.S. Corpn. Ltd. and Ors. vs. K. Meerabai reported

in 2006 (2) SCC 255 has held that when there is loss of

confidence, sympathy or generosity cannot be a ground. In the

case in hand, the respondent is a leading Bank of the country

having small branches in small towns. The petitioner has flouted

the regulations and carried out acts which constitute misconduct

under Regulation 3(1) read with Regulation 24, Regulation 15 and

(12 of 12) [CW-4344/2015]

Regulation 20 of Conduct Regulation 1976, for which he was

dismissed from services and the dismissal order was approved by

Original Authority, Appellate Authority, Reviewing Authority and

Disciplinary Authority. Learned counsel for the petitioner has

argued the case on proportionality of punishment and on bar on

disciplinary proceedings when the criminal proceedings are closed.

The judgments cited by learned counsel for the petitioner are of

no aid for the reasons stated above, as both the proceedings were

carried out under different Regulations on different grounds and

different charges and for the reasons referred to in the Hon'ble

Apex Court rulings of P.C. Kakkar (supra) which makes the

judgments relied upon by the petitioner distinguishable and not

applicable in the case in hand.

18. For the reasons stated above, this court is of the view

that it was not a case of negligence/lapse but was the case of

intentional mala fide and misconduct under Regulation 3 read with

Regulation 24, Regulation 15 and Regulation 20, of Conduct

Regulations 1976 which has attracted major penalty of dismissal.

Therefore this court is convinced that the writ petition is liable to

be dismissed and the impugned charge-sheet, order in original

passed by the disciplinary authority, impugned appellate order and

the impugned review order are held valid and hence calls for no

interference.

15. As a result, the writ petition is dismissed. All pending

applications stand disposed of.

(SAMEER JAIN),J

JKP/1

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