Allahabad High Court
Braham Pal Singh Son Of Sri Chaman Singh vs Disciplinary Authority/Senior ... on 7 September, 2005
Equivalent citations: (2006)ILLJ762ALL
Author: Sunil Ambwani
Bench: Sunil Ambwani
JUDGMENT Sunil Ambwani, J.
1. Heard Sri B.D. Mandhyan, learned Senior Counsel assisted by Sri R.K. Saini for the petitioner, and Sri Vivek Ratan learned counsel for the Union Bank of India. By this petition the petitioner has challenged the order dated 16.4.2004, by which he has been given punishment of 'Compulsory Retirement' on the charges of gross misconduct and 'Censure' for each minor misconduct.
2. The petitioner was appointed in Union Bank of India as a Clerk Cum Cashier on 18.11.1982. On 27.5.2003, Sri Dinesh Kumar Mahrotra the Accountant, in the Bank made a complaint to the Branch Manager of the Bank Muzaffarnagar alleging that the petitioner serving as Head Cashier in the Prem Puri Branch District Muzaffar Nagar. came to his seat misbehaved with him, and slapped him. He had also misbehaved with him in the past and that the incident was seen by Sri Anil Kumar Jain and Sri H.B. Thapa. He put a note on his complaint that the petitioner had misbehaved with him even in the past, thrown at him a glass with tea, and had slapped him and that the petitioner is in habit of such misconduct of which Shri Anil Jain and Shri Jot Ram will stand as witnesses.
3. The petitioner was placed under suspension on 19.9.2003, and that" on 6.10.2003 the disciplinary authority/Chief Manager, Department of Personnel Nodal Regional Office, Lucknow issued a charge-sheet. The petitioner submitted his reply on 27.10.2003. He denied the charges and stated that the complainant Sri D.K. Mehrotra used to call him with his caste name in order to insult him. He was prejudiced with him and on several occasions the petitioner had objected to the issuance of wrong cheques and withdrawal passed by him. He went to Shri A.K. Jain Assistant General Manager. Meerut to report the matter but Shri Jain refused to meet him.
4. In the departmental enquiry the contents of the complaint (Ext. M6) were stated to be true. To the suggestion by the charged emplpoyee that he had handed over a cup of tea to him and not thrown on him, the complainant stated that he does not drink tea and this fact was known to every one. Sri R.K. Bains, Branch Manager, MW-2 deposed that he was informed by Sri Jot Ram., Daftari that the charged employee had a scuffle, but that he did not seen it himself. In the cross-examination Sri R.K. Bains, Branch Manager MW-2 stated that he had not received any complaint against the charge-sheeted employee from any other staff of the branch or customers. The charge sheeted employee was normal before the said incident. He confirmed that he was not a witness to the incident and was informed about it by Shri D.K. Mehrotra.
5. The disciplinary authority also examined the charge sheeted employee, who denied the incident and blamed Sri D.K. Mehrotra for creating obstacles in day to day working. The disciplinary authority found that the charge sheeted employee did not submit any reply to any evidence which may lead him to believe that it is jincorrect and vague version, and without any basis. The enquiry was conducted according to bipartite settlement and bank's rules and that the allegations of misconduct were proved against the petitioner. He proposed the punishment of compulsory retirement from service, as punishment for gross misconduct in doing an act prejudicial to the interest of the bank, disordinarly behaviour on the premises of the bank, and wilful insubordination or disobedience of orders, namely breach of rules of business of the bank, committing misconduct in the premises of the bank, failure to show proper consideration, courtesy or attention towards officers and other employees of the bank, marked disregard for ordinary requirement of decency and cleanliness and unseemly and unsatisfactory behaviour while on duty, and that by order dated 22.3.2004 the petitioner was given punishment of 'compulsory retirement' from service for each proved act of gross misconduct, and 'censure' for each of the minor misconduct.
6. Learned counsel for the petitioner submits that respondent No. l instead of holding the enquiry through an enquiry officer, himself collected the evidence, recorded initial finding and thereafter recorded final findings and imposed punishment. The evidence of the other staff members of the Bank was not recorded. The Personnel Officer/Senior Manager or authority above him at Regional office was the disciplinary authority of the petitioner. The Regional Office is situate at Lucknow. Instead of holding the departmental enquiry at Lucknow it was transferred against the rules to the Disciplinary Authority at Jallundher . It is contended that the enquiry was transferred to harass the petitioner who had to visit Jallundhar on the dates fixed to participate in the enquiry. The allegations were fabricated. No such incident of any misbehaviour or slapping had taken place and that the petitioner was a victim of caste prejudice. Learned counsel for the petitioner submits that the Branch Manager had taken an apology of the incident. This apology letter dated 27.5.2003 is annexed as Annexure-CA-I and the English translation of this letter is as follows:
"To.
Branch Manager, Union Bank of India, Prempuri.
Sir, I assure that in future I will not misbehave with Sri D.K. Malhotra, Accountant. I also apologize to Sri D.K. Malhotra. Whatever I have done today is reprehensible. I will not behave like this, in future.
Sd/- B.P. Singh Dt.27.5.2003. Clerk Union Bank of India, Prempuri."
7. It is contended that the petitioner had given this apology on the assurance that no action will be taken on the complaint and the matter will be settled as compromised.
8. Sri B.D. Madhyan submits that even if the Court finds that the incident did take place, it will not fall within the definition of 'gross misconduct', and does not merit an extreme punishment of compulsory retirement from service.
9. Sri Vivek Ratan appearing for the Bank submits that there was a serious allegation against the petitioner for abusing and beating a collegue. The amended Schedule of Disciplinary Enquiry circulated by the Bank on 24.4.2002 provided that the disciplinary authority may either himself hold an enquiry or may depute another officer to represent the management. The Disciplinary Authority may in his discretion at any stage transfer the whole of the enquiry from one officer of the bank to another and/or transfer the task of representing the management's case from one management representative to another. He submits that the Disciplinary Authority/Chief Manager, Nodal Regional Manager Office, Lucknow, transferred the enquiry to Sri S.K. Kapoor, Senior Manager and Sri Mohan Lal Manager (Personnel) was appointed as management's representative. The petitioner was given full and adequate opportunity and the charges were proved against him. He submits that as per annexure-7, Staff Circular No. 4846 dated 24.4.2002, once the enquiry is directed to 'be held by any other officer of the bank, under Clause 3, the Disciplinary Authority could also act as Enquiry Officer/Disciplinary Authority to settle and conclude the departmental enquiry in all respects and pass final orders. Sri Vivek Ratan has relied upon the judgment in Madhya Pradesh Electricity Board v. Jagdish Chandra Sharma (2005) LLR 420, in which the Supreme Court held that when it is clearly established that the workman during the work, had hit his superior officer with a tension screw on his back and nose, leaving him with a bleeding and broken nose which was followed by the unauthorized absence of the workman, the punishment of termination as imposed should not be interfered with by the Labour Court exercising its powers under section 11A of the Industrial Disputes Act. He has further relied upon a judgment of Shyam Bahadur Vs-. Bank of Baroda 2004(22) A1C 584. In this case the petitioner has misappropriated the amount received from the customers for depositing in their account and has made unauthorized entry in the pass books with a view to cheat them. The Court relying upon the High Court of Judicature at Bombay v. Udai Singh, , and the High Court of Judicature at Bombay v. Shirish Kumar Ranga Rao Patil, , held that the sufficiency of evidence and the correctness of evidence are not to be examined by the Court, though it may possible to arrive at a different conclusion. "In the present case, the petitioner was charged with gross misconduct of firstly doing an act prejudicial to the interest of the Bank, indecent and riotous/disorderly behaviour on the premises of Bank and willful insubordination or disobedience of the lawful and reasonable orders of the management of a superior. 10. Learned counsel for the petitioner submits that the petitioner's Disciplinary Authority was the Chief Manager, Karmik Vibhag, Nodal Kshetriya Karyalaya, Lucknow who instead of concluding the departmental proceedings delegated the powers of Inquiry Officer as well as Disciplinary Authority to Shri S.K. Kappor, Senior Manager (sic). Divisional Office, Jallandhar vide his letter dated 6.10.2003. He submits that the first Bipartite Settlement of the year 1966 provided in para 19.14 that the Chief Executive Officer or the Principal Officer of the Bank of an alternate Officer at Head Office or Principal Officer appointed by him for the purpose, shall decide which officer(s) shall be empowered to hold enquiry and take disciplinary action in the case of each office or establishment, and the Officer authorized to dispose of any appeal. This Bipartite "Settlement was superseded in respect of disciplinary proceedings vide fresh Bipartite Settlement dated 10.4.2002 between the Managements of 52 'A' Class Bank represented by the All India Bank Association and their workmen as represented by the All India Bank Employees Association. According to para 19.14 of this Settlement a clarification was added in para 19.14? to the effect that the disciplinary authority may conduct the enquiry himself or appoint another officer as the enquiry officer for the purpose of conducting an enquiry. Para 19.14 of the modified Bipartite Settlement circulated by Staff Circular No. 4848 dated 6.5.2002 is quote as below:
"19.14 The Chief Executive Officer or the Principal Officer in India of a bank or an Alternate Officer at the Head Office or Principal Office nominated by him for the purpose shall decide which officer (i.e. the disciplinary authority) shall be empowered to take disciplinary action in the case of each office or establishment. He shall also decide which officer or body higher in status than the officers authorized to take disciplinary action shall act as the appellate authority to deal with or hear and dispose of any appeal against orders passed in disciplinary matters. These authorities shall be nominated by designation, to pass original orders or hear and dispose of appeals from time to time and a notice specifying the authorities so nominated shall be published from time to time on the bank's notice board. It is clarified that the disciplinary authority may conduct the enquiry himself or appoint another officer as the Enquiry Officer for the purpose of conducting an enquiry.
The appellate authority shall, if the employee concerned is so desirous, in a case of dismissal, hear him or his representatives before disposing of the appeal. In cases where hearings are not required, an appeal shall be disposed of within two months from the date of receipt thereof. In cases where hearings are required to be given and requested for, such hearings shall commence within one month from the date of receipt of the appeal and shall be disposed of within one month from the date of conclusion of such hearings. The period within which an appeal can be preferred shall be 45 days from the date on which the original order has been communicated in writing to the employee concerned."
11. I find substance in the contention of the learned counsel for the petitioner that the disciplinary authority of the petitioner could have appointed another Officer as the Enquiry Officer for the purpose of conducting an enquiry. He, however, did not have authority to consider the enquiry report, and to inflict the punishment. The final decision of accepting the enquiry report and punishment could only be made by the Disciplinary Authority, which, in the present case, shall be the Chief Manager, Karmik Vibhag, Nodal Kshetriya Karyalaya, Lucknow, 2nd not Sri S.K. Kapoor who had acted as an Enquiry Officer and also imposed the punishment. The order delegating the enquiry to Sri S.K. Kapoor, Senior Manager (Karmik), Divisional Office, Jallandhar dated 6.10.2003 shows that the Chief Manager Personnel Department Nodal Regional Office, Lucknow, had appointed Sri S.K. Kapoor as Enquiry Officer and in case the charges were proved in the enquiry, he could impose punishment under para 19.14 of the modified Bipartite Settlement. This delegation, in my opinion, was beyond the scope of para 19.14 of the modified Bipartite Settlement.
12. The substance of the allegations in the charge sheet are! quoted as below:
" He is in the habit of misbehaving with Shri D.K. Mehrotra, Accountant of Prempuri Branch. On number of occasions, he had misbehaved with Shri Mehrotra and also beaten him up in the presence of Staff members and customers and created scenes in the branch premises. Once, Shri Singh in the presence of staff members and customers had thrown a glass of tea at Shri Mehrotra and beaten him up with sleepers and also slapped him. The staff members of the branch, however, intervened and rescued Shri Mehrotra from him. However, he had regretted for his misdeeds and orally apologised to Shri Mehrotra and assured him not to repeat such behaviour in future and improve his ', behavour and also requested not to report the matter of his misdeeds to higher authorities for initiation of action against him. In view of Shri Singh's oral apology and assurance for good behaviour lenient view was taken and he was given an opportunity to improve his behaviour without initiating any action against him. Despite assurance not to misbehave with Shri Mehrotra, Shri Singh did not mend his ways and once again on 27.5.2003 around 1.00 p.m., in the presence of S/Shri Anil Kumar Jain CTO and H.B. Thapa, Armed Guard, misbehaved with Shri Mehrotra, abused him in filthy, derogative and unparliamentary language besides manhandling and slapping him.
Shri Singh vide his letter dated 27.5.2003 apologised in writing and condemned his misbehaviour with Shri D.K. Mehrotra and again assured not to repeat such mistakes in future.
Due to fear of manhandling by Shri Brahma Pal Singh, Shri D.K. Mehrotra used to accompany Shri Anil Jain, CTO, Shri Jot Ram Daftary and Shri H.B. Thapa. Armed Guard of the branch to strong room, along with Brahma Pal Singh for operating the cash safe.
On 18.9.2003 at around 3.30 p.m., when Shri A.K. Jain, Assistant. General Manager, came out of his cabin for visiting RG College Branch, Shri Singh started following him and informed him that he has got some problem at Prempuri Branch. In turn, when Shri Jain has informed him that matter regarding his misbehaviour with Shri D.K. Mehrotra has already been reported to N.R.O., Shri Brahma Pal Singh got annoyed and started shouting and threatened, abused Shri Jain in derogative and unparliamentary language at the top of his voice and uttered. "Tujhe mai jail bhijwa dunga, jail men tun sarta rahega tere hanth pawn tor dunga va jindagi kharab kar dunga," Sri Brahma Pal Singh has not only threatened and abused -Shri Jain but attempted to manhandle him, however, the nearby staff member caught hold him. Shri Singh, however continued to abuse Shri Jain at the top of his voice and threatened him for dire consequences.
It is clear from the aforesaid facts that Shri Brahma Pal Singh is in the habit of threatening/abusing in derogatory and unparliamentary language besides manhandling superiors and despite giving him opportunity to improve his behaviour at his own request, apology and assurance not to improve his behaviour at his own request, apology and assurance not to repeat such behaviour in future, he did not improve and continued to misbehave, threatened, abuse and manhandled Shri D.K. Mehrotra, Accountant, Muzaffarnagar Branch. Further, he had also abused and threatened Shri A.K. Jain A.G.M. Meerut and also attempted to manhandle him. Due to his indecent/riotous behaviour, mentioned supra customer service has been affected adversely besides tarnishing the image of the Bank.
The above acts of omission and commission on the part of Shri Singh constitute of following misconducts as per chapter 19 of Bipartite Settlement and he is hereby charged as under".
Gross Misconducts
1. Doing any act prejudicial to he interest of the bank.
2. Indecent and riotous/disorderly behaviour on the premies of bank.
3. Wilful insubordination or disobedience of any lawful and reasonable orders of the management of a superior.
Minor Misconduct:
1. Breach of any rule of business of the Bank or instructions for running any department.
2. Committing nuisance in the premises of the bank.
3. Failure to show proper consideration, courtesy or attention towards officers and other employees of the bank.
4. Mark disregard for ordinary requirement of decency and cleanliness.
5. Unseemly and unsatisfactory behaviour while on duty.
Shri Brahma Pal Singh is informed that an enquiry into the charges/ allegations levelled against him herein above wil be conducted by another Disciplinary Authority Shri S.K. Kapoor, Senior Manager (P), RO, Jallandhar. The date, time and place of enquiry will be intimated to him by the Inquiry Officer/Disciplinary Authority in due course. If Shri Singh desire to submit any explanation in the matter he may do so directly to the Inquiry Officer/Disciplinary Authority within 7 days of receipt hereof by him.
Sd/-Eligible Disciplinary Authority"
13. In 'he evidence led during the enquiry, the management produced only the complainant Sri D.K. Malhotra and Sri R.K. Bains, Branch Manager of the Bank. Sri R.K. Bains clearly stated that he did not see the incident himself and was informed by Sri Jyoti Ram and Sri D.K. Malhotra, that a scuffle had taken place. Sri Jyoti Ram Daftari was not examined. The complainant Sri D.K. Malhotra stated as follows:
MW-1 (Sh. D.K. Mehrotra) stated that he was presently working as Accountant at Prempuri branch. CSE was also working there as Clerk/Cashier. The behaviour of CSE with him was not proper and he (CSE) was in the habit of misbehaving with him. On one occasion, CSE had beaten him with his slippers in the presence of staff and customers and also created nuisance in the branch premises. He (CSE) had also thrown a cup of tea on him (MW-1) on one occasion. The staff intervened and separated them. CSE had apologized his conduct with him (MW-1) and assured to be careful in future. After the beating incident as precaution, MW-1 always accompanied by Sh. Anil Jain, CTO and Sh. H.B. Thapa, Armed Guard as and when he (MW-1) operated strong room of the branch. In his cross-examination, MW-1, stated that CSE had completed/performed the jobs assigned to him even after sitting late hours. MW-1 reiterated that CSE had misbehaved with him on 27.5.2003 and prior to this incident he had drawn tea (cup of tea) on him. To a re-, confirmed the contents of Ex M-6 to be true. To a suggestion by CSE that he had handed over a cup of tea to him and not thrown on him as alleged, MW-1 stated that he was not taking tea everybody knew."
14. Sri D.K. Malhotra had not made any complaint against the petitioner before the alleged incident on 27.5.2004. A number of officers and employees were present in the bank but no one came forward to support the allegations of misbehavior and beating by the petitioner.
15. I find that the charges in the charge sheet painted a picture of gross indiscipline, misbehavior and beating of the complainant. The apology and assurances given by the petitioner was treated as prima facie acceptance of the charges. Although a number of witnesses were mentioned in the charge-sheet, none of them came forward to support the complaint. In respect of the allegations of misbehaviour on 18.9.2003, no evidence was led to support the charges. Instead of proving the charges, the Disciplinary Authority placed the burden upon the petitioner to lead the evidence and to show that the complaint was based on a vague version.
16 Learned counsel for the respondent submits that the apology submitted by the petitioner proves the charges against him. I do not find that the petitioner had admitted to have beaten or slapping Shri D.K. Mehrotra. He had only admitted to have misbehaved with him. No one came to support the incident of beating and slapping and to depose in the enquiry proceedings. The petitioner in his reply had denied the charges. He had explained in his apology by stating that he wanted to close the matter. A perusal of the entire record including the complaint, and statement of witnesses do not establish that the petitioner had beaten the complainant. There may have been exchange of hot words or even a scuffle with both the parties blaming each other. These facts in my opinion, do not constitute gross misconduct. The act could neither be said to be prejudicial to the interest of bank as there was no allegation in the evidence that the bank was suffered and its reputation had fallen in the eyes of the customers. Further I find that the findings do not establish indecent and riotous /disorderly behaviour and that' the allegations of wilful insubordination were also not established. I also find that the minor misconduct was also not established. At best the petitioner could be said to have acted in a manner to have misbehaved with a fellow officer. Such an charge cannot be a matter of extreme penalty of compulsory retirement from service. On the other hand I find that Shri D.K. Mehrotra, the complainant (MW-1) had admitted in his statement that the petitioner used to complete the jobs assigned to him by staying for late hours in the bank. A good and hard working officer did not deserve such a punishment on a minor scuffle between him and the complainant. The decision cited by the learned counsel for the respondent in Madhya Pradesh Electricity Board (supra) and Shyam Bahadur (supra) were given on the facts in the enquiry. In the present case I find that there was no evidence except . the complaint and the statement of the complainant to establish the charges and that the Disciplinary Authority had wrongly placed the burden of proof on the charge sheeted employee.
17. The allegations that the petitioner had misbehaved with the complainant Sri.D.K. Mehrotra in the past as well were not established. The witnesses did not make any statement with regard to the past conduct of the petitioner. On the contrary the Branch Manager admitted that he had not received any complaints against the petitioner from any staff of branch/customer regarding his behavior. He had only heard about the incident. There were no complaint against him in his 21 years of service. These circumstances were ignored in imposing punishment, which is highly disproportionate and unconscionable.
18. The writ petition is consequently allowed. The impugned order dated 16.4.2004 passed by the respondent no. 1 is set aside. The petitioner shall be reinstated in service with all consequential benefits.