Full Judgment Text
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CASE NO.:
Appeal (civil) 5072 of 2002
PETITIONER:
THE REGIONAL MANAGER & DISCIPLINARY AUTHORITY,
Vs.
RESPONDENT:
VS.
DATE OF JUDGMENT: 16/08/2002
BENCH:
Doraiswamy Raju & Shivaraj V. Patil.
JUDGMENT:
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
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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
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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.
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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.