The
Regional Manager & Disciplinary Authority, Vs. VS [2002] Insc 350 (16 August 2002)
Doraiswamy
Raju & Shivaraj V. Patil. D. Raju, J.
Special
leave granted.
The
respondent herein has joined the service of the State Bank of India in the year 1967 as a Clerk. When
he was serving as such in Kurnool Bazar Branch, Kurnool, disciplinary proceedings were initiated against him and he
was placed under suspension on 11.7.1975 followed by a charge-sheet issued on
23.10.1975 framing four charges. Since in respect of some of the charges,
namely 1, 3 and 4, criminal proceedings were also launched and as a sequel to
the acquittal of the respondent by the Criminal Court, which was affirmed by
the Appellate Court also, no further inquiry was held in respect of those charges
framed in the departmental proceedings. Thereafter, another charge-sheet dated
19.10.1985 was issued against the respondent containing two charges, one of
which related to the earlier departmental proceedings. The respondent was
placed again under suspension w.e.f. 26.10.1985. When the criminal proceedings,
noticed above, relating to the earlier set of charges were pending, the
respondent came to be appointed as Head Clerk on 5.4.1983, which subsequently
came to be also regularized w.e.f. 25.10.1983. It may be pointed out at this
stage that such appointment as Head Clerk came to be made in the light of
certain orders passed by the High Court in a writ proceedings and it was so
done subject to the condition that the promotion of the respondent would be subject
to the result of the domestic inquiry and also the appeal against the
acquittal, which was at that time pending before the Court.
While
matters stood thus, the departmental inquiry was held into the two charges,
which read as follows:-
"1.
It is alleged that you have surreptitiously taken into your possession the
draft bearing No.BB.255680 dated 19.2.1973 for Rs.500/- issued by Kurnool Bazar
Branch on Hyderabad in favour of Syed Abdul Quayyum Hussain
Sahib and encashed the same on 2.3.1973 by forging the payee's signature.
2. It
is further alleged that during March 1981, when you were working as a Clerk in
the establishment section, you prepared the establishment register and included
unauthorisedly three increments for yourself pertaining to the years 1976 to
1978, the period during which you were under suspension and drawn the
increments although you are not entitled for the same as per the reinstatement
order served on you on 6th October, 1978".
The
Inquiry Officer held both the charges to have been proved. Thereupon, the
Disciplinary Authority, though proposed to inflict the punishment of discharge
from the Bank service as provided in Paragraph 521(5)(e) of the Sastry Award
read with Paragraph 18.28 of the Desai Award by his Notice dated 17.6.1987, on
a consideration of the explanation and taking a lenient view, modified the
proposed punishment of discharge from the Bank service into one of Withdrawal
of Special Allowance (Head Clerk Allowance) as provided in Paragraph 521(5)(f)
of the Sastry Award read with Paragraph 10.28 of Desai Award and passed final
orders accordingly on 31.3.1988. The appeal filed by the respondent against the
same did not meet with success. Thereupon, Writ Petition No.13011 of 1988 came
to be filed to quash the same.
A
learned Single Judge of the Andhra Pradesh High Court by his judgment dated
3.12.1992 dismissed the Writ Petition on the view that not only Charge No.2 of
the Charges have been held proved, but the same constituted a gross misconduct
of serious nature and consequently there was no scope for interference. When
the matter was pursued in appeal (Writ Appeal No.256 of 1993), the Division
Bench by an order dated 9.10.1996 declined to interfere on the view that the
challenge to the quantum of punishment on the ground urged cannot be gone into
in the said appeal. The respondent pursued the matter on further appeal before
this Court in Civil Appeal No.3842 of 1999 and by an Order dated 16.7.1999 this
Court, while allowing the appeal and setting aside the order of the Division
Bench, directed restoration of the writ appeal (Writ Appeal No.256 of 1993) to
the file of the High Court, to be disposed of afresh on merits.
Thereupon,
a Division Bench of the High Court by an order dated 8.8.2001, challenged in
this appeal, set aside the punishment imposed and directed the Disciplinary
Authority to consider the matter afresh for imposing only a minor punishment.
The Division Bench though rejected the contention on behalf of the respondent
that the act complained of, which was the subject-matter of the second charge
held proved, is only a mistake not amounting to misconduct, recording a
categorical finding that such an unilateral act of drawal of increments in his
own favour, to which he was not entitled to and that too while he was serving
as the concerned Head Clerk without any sanction or approval from the competent
authority would amount to `misconduct', concluded at the same time that it did
not constitute such a gross misconduct within the meaning of sub- paragraph
4(1) of Para 521 of the Sastry Award and, therefore, the punishment imposed
must be held to be not sustainable. It is on such view taken and on the premise
that inasmuch as the punishment imposed was as a result of cumulative effect of
the findings recorded on both charges that they stood proved, a fresh
consideration of the quantum of punishment became necessary.
Aggrieved,
the Bank has come on appeal to this Court.
The
learned Solicitor General appearing for the appellant-Bank contended that the
quantum of punishment cannot be so lightly interfered while exercising
jurisdiction under Article 226 of the Constitution of India, the Court having
held that the action of the respondent constituted misconduct, as though in
exercise of an appellate jurisdiction. It was also contended that the
misconduct committed by the respondent would fall within the meaning of the
expression `gross misconduct' as envisaged in Paragraph 521(4) and that the
words `gross misconduct' should be understood or perceived in the context the
various acts and omissions on the part of an employee as enumerated therein in
contrast with Paragraph 521(6), which defined the expression `minor misconduct'
and consequently there was no justification for the Division Bench to have
interfered with the quantum, which itself, according to the learned counsel,
was on the linen side.
Per
contra, the learned counsel for the respondent, with great vehemence, while
inviting at length our attention to the orders of the courts below, the earlier
order passed by this Court in the appeal filed by the respondent and the
relevant paragraphs of the Sastry Award and Desai Award, contended that the
view taken by the Division Bench is unexceptionable and, therefore, does not
call for any interference. It was also urged that the respondent having opted
for voluntary retirement under the State Bank of India Voluntary Retirement
Scheme and has since retired from the service w.e.f. 31.3.2001 there is hardly
any justification to interfere with the order of the Division Bench.
We
have carefully considered the submissions of the learned counsel appearing on
either side. As rightly urged by the learned counsel for the appellant-Bank,
the factum of voluntary retirement will have no impact on the proceedings which
would involve and directly affect, having regard to the nature of punishment,
pecuniary claims and rights of the parties and keeping in view that the
respondent could assert a claim for the recovery of the amounts denied by way
of withdrawal of special allowance (Head Clerk allowance), the issue cannot be
avoided from being decided.
On the
facts specifically found in this case that the respondent while working in the
Establishment Section and preparing the Establishment Register got included unauthorisedly
three increments for himself pertaining to the years 1976-78, to which he was
not legitimately entitled to, without any approval or sanction of the competent
authority and on the view arrived at further even by the Division Bench that it
is not a mere mistake but really constituted misconduct, it is beyond
comprehension as to how the Court could have further proceeded to hold that it
is not a gross misconduct. The expression `gross misconduct' is not to be or
could have been viewed or considered in the abstract or as it appeared or appealed
to the perception of the Court, at any rate, so far as the case on hand is
concerned. Indisputably, the service conditions in this regard are governed by
the conduct rules under the Sastry Award and Desai Award and Paragraph 521(4)
in particular and in unmistakable terms has laid down as to what the expression
`gross misconduct' shall be meant, by enumerating various instances of
commission and omission on the part of an employee. Likewise, Paragraph 521(6)
of the Sastry Award also stipulated as to what the expression `minor
misconduct' shall be meant by equally enumerating instances of commission and
omission on the part of an employee. In view of such peculiar position
governing the rights of parties, the Court was obliged to construe the
expression `gross misconduct' in the context of the definition with particular
reference to the various enumerated acts and omissions on the part of an
employee. In doing so, it would be useful to advert to at least two of the
enumerated aspects, which read as follows:-
"(j)
doing any act prejudicial to the interest of the bank or gross negligence or
negligence involving or likely to involve the bank in serious loss;
(m)/(n)
knowingly making a false statement in any document pertaining to or in
connection with his employment in the bank."
In
contrast, the instances enumerated to define the expression `minor misconduct'
would indicate that they are routine lapses or lapses or acts with no direct
adverse financial implications or loss to the assets or pecuniary interests of
the Bank claiming and availing of increments to which the respondent was held
to be not entitled to and that too without the sanction or approval of the
competent authority when he was the dealing person in the Section, cannot be
simply glossed over to be viewed not as a gross misconduct without doing
violence to the meaning ascribed to the said expression under the Sastry Award,
having regard to, at any rate, the enumerated instances such as `(j)' and
`(m)/(n)', noticed above. In our view, particularly in the context in which the
words `gross misconduct' has to be construed for this case, the charge held
proved would definitely constitute `gross misconduct' and consequently the
discretion vested with the Disciplinary Authority to impose the punishment of
its choice to suitably meet the requirements of the case could not be either
denied to it or curtailed and interfered with in exercise of jurisdiction under
Article 226 of the Constitution of India.
The
High Court seems to have overlooked the settled position that in departmental
proceedings, insofar as imposition of penalty or punishment is concerned,
unless the punishment or penalty imposed by the Disciplinary or Appellate
Authority is either impermissible or such that it shocks the conscience of the
High Court, it should not normally interfere with the same or substitute its
own opinion and either impose some other punishment or penalty or direct the
authority to impose a particular nature or category of punishment of its
choice. It is for this reason we cannot accord our approval to the view taken
by the High Court in disregard of this settled principle. Consequently, the
appeal is allowed, the judgment of the Division Bench is set aside and that of
the learned Single Judge shall stand restored. No costs.
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