Ghosh Vs. Chairman & Managing Director, United Commercial Bank & Ors
 INSC 118 (6
P.B. Sawant, P.B. Faizan Uddin (J)
1995 AIR 1053 1995 SCC (2) 474 JT 1995 (2) 74 1995 SCALE (1)451
appellant was appointed as a Probationary Officer in the respondent Bank on 4th October, 1971 and confirmed in that post on 24th February, 1973. In August 1975, the appellant was
charged for having demanded and taken Rs. 1,900/ - as bribe from one Sk. Rahul Amin.
fie was suspended from service on 23rd August, 1975. However, the suspension was
revoked with immediate effect by another order of 12th December, 1975. Thereafter, he was again placed under suspension w.e.f
10th July, 1976 when the Central Bureau of
Investigation took up the investigation of the case. Prosecution was launched
against him on 28th
July, 1977 under
Section 6  (d) read with Section 5  of the Prevention of Corruption Act,
1947. The learned Sessions Judge convicted him of the said offence by his order
of 14th July, 1978. , In appeal, the High Court
reversed the order of conviction and acquitted him of the charge by its order
of 4th December, 1979.
appears that in the meanwhile, the Bank dismissed the appellant from service by
its order of 17th
August, 1978 pursuant
to the order of the Session's Court. Against the said order, the appellant
approached the High Court by a writ petition on 9th February, 1979. On his acquittal by the High Court on 4th December, 1979, the appellant by his letter of 11th January, 1980 wrote to the Bank for reinstating
him in service with retrospective effect but the Bank did not comply with his
request. However, the High Court in the writ petition pending before it, by its
order of 25th June 1980 set aside the order of dismissal
from service and directed the Bank to reinstate the appellant in service with
all consequential benefits.
appellant was reinstated in service pursuant to this order and was posted as
Assistant Manager at the Hazari Road"' Branch. On 17th August, 1982, he
was transferred to Assistant General Manager's [AGM] office, West Bengal
Division-I and on 23rd August, 1982 he was served with a letter alleging
therein that on 14th August, 1982 while he was working as Assistant Manager at
the Hazari Road Branch, he had prepared and singed one debit voucher for Rs.4,800/-
being the amount on account of "interest payable on deposit FDR"
mentioning therein the fixed deposit No.223638/108/79.
alleged in that letter that the appellant had obtained a token against the said
voucher by presenting it to the token clerk and had also verified the signature
of the FDR older on the reverse of this voucher, and on this voucher being
posted in the ledger of the ledger Clerk and passed by the Pass ing Officer in
good faith, the appellant had received a cash amount of Rs.4,800/against the
said voucher etc.
appellant was also placed under suspension from the date of the service of the
said letter i.e., 23rd August, 1982 under Regulation 12  (a) and (b) of the
United Commercial Bank Officers [Discipline and Appeals] Regulations, 1976 (the
Regulations). The departmental in- quiry was thereafter held with the Manager
of the branch of the Bank as the Inquiry Officer to conduct the inquiry. The
Inquiry Officer by his report dated 28th May, 1985 held the appellant guilty of two of
the charges levelled against him.
basis of the said report, the respondent No.2, the Deputy General Manager,
Zonal 77 Officer, West Bengal Zone of the Bank by his order dated 14th
November, 1985 dismissed the appellant from service.
by the said order the appellant approached the High Court by way of a writ
petition. The learned Single Judge of the High Court dismissed the same and the
Division Bench in appeal confirmed the said order. It is aggrieved by the
decision of the High Court that the present appeal has been preferred.
Some grievances have been made by the appellant in the present appeal touching
upon the illegalities in the conduct of the proceedings such as that
the disciplinary proceedings were initiated by an incompetent disciplinary
authority in breach of Regulation 8  (iii) read with Regulation 3 [g] of the
statement of witnesses recorded earlier were not supplied to him in breach of
Regulation 8  [b] (iii) and
was denied opportunity to explain circumstances appearing against him in
evidence in breach of Regulation 6  of the Regu- lations.
it is not necessary to go into the merits of the said grievances since we are
of the view that one of the objections taken by the appellant to the dismissal
viz., that the appellant was deprived of an opportunity to prefer an appeal
provided under-the Regulations, goes to the root of the dismissal order. The
undisputed facts relating to the said grievance of the appellant are that the
disciplinary action was taken against him by the Deputy General Manager. As the
Regulations stood then, the disciplinary authority for officers in Grades E, D,
C and B [excepting Divisional Managers in Grade B] was the Divi- sional
Manager/AGM [Personnel] and the appeal against their order lay to the Deputy
General Manager or any other officer of the same rank. Against the order of the
Deputy General Manager, the review lay to the General Manager. It is not
disputed that the appellant was an officer in Grade D. Hence in his case, as
per the said Regulations, the disciplinary authority was either the Divisional
Manager or the AGM [Personnel] and if the action was taken by either of them,
he had an opportunity to appeal to the Deputy General Manager or any other
officer of the same rank, and thereafter he had a further right of review to
the General Manager. However, since the action against him was taken by the
Deputy General Manager although the Divisional Manager and AGM [Personnel] were
available for taking the action, the appellant was denied the right of an
appeal and also the right of a review which lay only against the appellate
order. The impugned order of dismissal passed by the Bank, therefore, suffers
from an inherent defect.
respondent-Bank in its submission contended that although it is true that the
Deputy General Manager had acted as the disciplinary authority when he was in
fact named under the Regulations as an appellate authority, no prejudice is
caused to the appellant because the Deputy Gen- eral Manager is higher in rank
than the disciplinary authority, viz., the Divisional Manager/AGM [Personnel].
to the Bank, it should be held that when the order of punishment is passed by a
higher authority, no appeal is available under the Regulations as it is not
necessary to provide for the same. It was also contended that there is no right
to appeal unless it is provided under the Rules or Regulations. Although the
argument looks attractive at first sight, its weakness lies in the fact that it
tries to place the Rules/Regulations 78 which provide no appeal on par with the
Rules/Regulations where appeal is provided. It is true that when an authority
higher than the disciplinary authority itself imposes the punishment, the order
of punishment suffers from no illegality when no appeal is provided to such
when an appeal is provided to the higher authority concerned against the order
of the disciplinary authority or of a lower authority and the higher authority
passes an order of punishment, the employee concerned is deprived of the remedy
of appeal which is a substantive right given to him by the Rules/Regulations.
An employee cannot be deprived of his substantive right. What is further, when
there is a provision of appeal against the order of the disciplinary authority
and when the appellate or the higher authority against whose order there is no
appeal, exercises the powers of the disciplinary authority in a given case, it
results in discrimination against the employee concerned.
is particularly so when there are no guidelines In the Rules/Regulations as to
when the higher authority or the appellate authority should exercise the powers
of the disciplinary authority. The higher or appellate authority may choose to
exercise the power of the disciplinary authority in some cases while not doing
so in other cases.
such cases, the right of the employee depends upon the choice of the higher/
appellate authority which patently results in discrimination between an
employee and employee.
such a situation cannot savour of legality. Hence we are of the view that the
contention advanced on behalf of the respondent-Bank that when an appellate
authority chooses to exercise the power of disciplinary authority, it should be
held that there is no right of appeal provided under the Regulations cannot be
result, therefore, is that the present order of dismissal suffers from an
inherent defect and has to be set aside.
question, however, is what consequential order should be passed in the present
case. It will not be fruitful to send the matter back to the Bank for rehearing
of the matter by the named disciplinary authority since the appellate authority
which is the higher authority has already taken a decision in the matter and it
cannot be expected that the lower authority will take a different decision.
These proceedings have been pending against the appellant right from the year
1982 till this day and the appellant has been out of employment for all these
stage, the appellant had offered to forego all the arrears of his salary
provided he was reinstated in service on the post to which he would be entitled
at present on the basis of his continuous service till date. We had suggested
to Shri Gupta appearing for the respondent-Bank to take instructions in the
matter: The respondent-Bank, however, has chosen to reject the offer and has
instead suggested that the Bank would like to pay compensation to the appellant
since it has lost confidence in him. We have considered the charges against the
appellant and we find that apart from the fact that much can be said in favour
of the appellant in support of his contention that the charge has been
trumpeted against him. The inquiry also prima facie suffers from defects as
pointed out above, though we must add that we have not gone into the merits of
the said defects. The appellant is an ex-Army officer. What is further, the
compensation amount, if directed to be paid would come to about Rs.20 lakhs-.
Bank is a nationalised Bank and the money belongs to the public. A huge amount
on this scale cannot be paid to anyone for doing no work during this long period
just because the Bank feels that it has lost confidence in the employee. He can
certainly be placed in a department where he has nothing to do with the
monetary transactions of the Bank, such as the establishment section etc., even
assuming that the Bank has reasons to lose confidence in him.
are informed at the Bar that the post to which he would be entitled would be in
Grade Scale IV with the basic pay of Rs.5,350/- per month which is on par with
the contemporary existing officers of the Bank who have been promoted to Grade
Scale IV on and from 29th
May, 1993. We,
therefore, direct as follows[a] the appellant should be paid a compensation of
Rs.50,000/- in lieu of his claim for arrears of salary; [b] he should be
reinstated in service with continuity of service and without loss of seniority
in the post to which he would be entitled today on the basis of his continuous
service, within four weeks from the date of receipt of this order.
appeal is allowed accordingly. Since we have directed the payment of
compensation, there will be no order as to costs.