Calcutta High Court
Syndicate Bank vs Vidya G. Naik on 4 August, 2000
Equivalent citations: (2001)IILLJ897CAL
Author: S.B. Sinha
Bench: S.B. Sinha
JUDGMENT S.B. Sinha, J.
1. Whether an employee, upon marriage to a member of Scheduled Tribe can be said to have committed misconduct by describing herself as a member of Scheduled Tribe, although her father is said to be a Brahmin is the question involved in this appeal.
2. The respondent herein was appointed on December 12, 1983 by the appellant in the post of clerk, reserved for Scheduled Caste and Scheduled Tribe candidates. She was married to K. Gobardhan Naik, who is a member of Maradi Tribe which is recognised as a Scheduled Tribe. Her father made a complaint that he was a Brahmin, and, thus, his daughter obtained employment by misrepresentation and on the basis of such complaint a chargesheet had been issued to the opposite party asking for explanation for securing employment in the bank in the "Reserved Quota" by suppressing material facts. In her reply, dated October 2, 1986, the respondent, inter alia, stated that she was not aware as to which caste she belonged to, as her mother was only a concubine of her father being a professional dancer. It was further stated that even her father's parents were not legally married and thus, did not belong to any particular caste. According to her, she obtained legal opinion and in view of the decisions of the Apex Court in N.E Horo v. Smt. Jahan Ara Jaipal Singh, and having regard to the fact that she had been accepted by her husband's family and as also at the instance of her husband, she stated in her application form that she belonged to Scheduled Tribe. A departmental enquiry was held and she was dismissed from her service on April 30, 1988 where against a writ petition was filed by her which was marked as W.P. No. 6732 of 1998.
Altamas Kabir, J.
3. by reason of the impugned order held that the said order of dismissal was illegal.
4. Before us, Sri Sarbadbikari, the learned counsel appearing on behalf of the appellant, inter alia, submitted that having regard to the guiding principles laid down by the Central Government, no person who was not a Scheduled Caste or Scheduled Tribe by birth could be deemed to be a member of Scheduled Caste or Scheduled Tribe merely because he or she had been married to a person belonging to a Scheduled Caste or Scheduled Tribe. Our attention has been drawn to the statements made in Para 20 of the affidavit-in-opposition which is to the following effect:
"That the contents of Para, 14 of the writ application being matters of record are not denied and disputed. However, a certificate having been issued stating that the writ-petitioner does not belong to scheduled tribe, the writ-petitioner cannot take the advantage of the scheduled tribe caste for having been appointed in the Syndicate Bank in the reserved category. The writ-petitioner, thus, deprived a genuine scheduled tribe candidate from being appointed in the Syndicate Bank. The writ-petitioner's case has been totally demolished after the cancellation certificate is issued which the writ petitioner herself annexed with her writ petition and marked as Annexure L. The writ-petitioner, thus, does not belong to the category of scheduled tribe and is not entitled to any advantage of being appointed in the special/reserved category of scheduled tribe. Her appointment as such is void ab initio"
5. Our attention has also been drawn to the advertisement for the purpose of showing that only a member of Scheduled Caste and Scheduled Tribe could apply therein. Furthermore, according to the learned counsel even in her applications, the first respondent stated:
"I distinctly understand that employment if any offered to me in specifically for reserved vacancy set apart for SC/ST/EX candidates and the same is based on my claim that belong to that category only."
In her show-cause, she stated:
"My husband who was a person belonging to scheduled tribe community Naik community) was employed at Kasaragod at relevant time. After my marriage, by reason of my marriage, I have been accepted as a member of my husband's community by the members of my husband's family. Though, I do not know the exact community to which I belonged to by birth, at the time of marriage by reason of above marriage, I having been accepted by my husband's family as a member of their community, as laid down in have become a member of Naik Community and to be considered as member of the scheduled tribe community since my marriage. In fact at the time of my applying for above job, I was living with my husband at Kasaragod and therefore the claim that by birth I belong to Gowda Saraswath Brahmin Community is false.
From the aforesaid it is clear that your petitioner had no reason or occasion to make any false or incorrect statement and your petitioner had not made any such incorrect statement at all."
6. The authorities of the Syndicate Bank however did not accept the explanation and wrongfully and illegally purported to issue a chargesheet. Reliance had been placed on the decision of the Apex Court in Valsamma Paul v. Cochin University and Ors. with Kerala Public Service Commission v. Dr. Kanjamma Alex and Anr. .
7. Sri Hirak Mitra, the learned counsel appearing on behalf of the respondent, on the other hand, submitted that the respondents explanation should have been accepted that she genuinely and honestly believed and still believes that she after her marriage having been accepted as a member of her husband's community belonging to Scheduled Tribe, she became a member of Maradi community.
8. The learned counsel pointed out that the complainant was, not called as a witness despite the assertions made by his client to the effect that she was casteless. The second line of Sri Mitra's submission was that the alleged misconduct could not be said to have been proved without holding that she did so knowingly. According to the learned counsel, at the time of her appointment the aforementioned guidelines issued by the Central Government had not been brought to her notice. She only knew the contents of the advertisement and, thus, no mala fide or ill motive in that regard can be attributed to her.
The learned counsel in support of the aforementioned contention has relied upon Evans v. Dell reported in 1937 (1) All ER 349, Nathulal v. State of Madhya Pradesh , Sherras v. De Rutzen reported in 1895-99 All E.R. (Reprint) 1167, Grant v. Borg reported in 1982 (1) W.L.R 638 and Gaumont British Distributors Ltd. v. Henry, reported in 1939 (2) K.B. 711.
9. The charge sheet against the petitioner dated April 8, 1987 reads thus:
"It is reported against you-
That you have been working as a clerk at our Jayanagar Branch, Bangalore, since August 7, 1985.
That you joined the service of the bank on January 27, 1984 stating that you belong to ST category and in support of your above claim you submitted a caste certificate, dated November 10, 1983, issued by the Tahsildar, Puttur. Following circumstances appear on record in respect of your appointment in the bank:
That on the basis of your application for a clerical post submitted in response to the advertisement bearing No. 2/1983 of the BSRB, Southern Region, Bangalore, declaring yourself as a ST candidate, you were called upon to appear for a recruitment test. You appeared for the recruitment test on August 14, 1983 which was followed by a viva voce test on November 29, 1983 and thereafter you were selected for an appointment on December 12, 1983 by the authorities of the BSRB Bangalore under ST category.
That your services were allotted to our bank and such allotment was made with the information that you belong to Scheduled Tribe category. Therefore, you submitted to the bank, an OG 85 form (application for employment) dated January 25, 1984 duly filled in. In the said OG 85 form also you declared among others, that you belong to Scheduled Tribe, your place of domicile being Mangalore, Dakshina Kannad. In support of your declaration that you belong to ST, you submitted to the bank a certificate, dated November 10, 1983, issued by the Tahsildar, Puttur wherein it is stated that you belong to 'Maradi' tribe, which is recognised as a Scheduled Tribe.
Now it is observed-
(i) that you belong to Gowda Saraswath Brahmin community by birth;
(ii) that according to the guiding principle, no person who is not an SC or ST by birth will be deemed to be a member of SC or ST merely because he or she marries a person belonging to SC or ST."
10. The enquiry officer in his report, however, held that whether the first respondent furnished her caste certificate would not make any difference especially in the instant case where her allotment to the Bank is against the vacancies meant for STs. It was observed:
"all information furnished by the CSE to the bank are supposed to be correct, true and with her full knowledge. In the instant case, CSE completed SSLC during 1978, PUC during 1980 and discontinued II year B.Com. during 1982. She was 20 years old and married while joining the bank. She must be well aware of her caste status. She herself admitted that she was not a ST before her marriage. Then all of a sudden how can she claim ST status marrying a man from ST category. She has nowhere pleaded that she was unaware of the Government rules that no person who is not ST by birth will be deemed to be a member of ST by virtue of marriage to a person belonging to ST. If it is true that she and her husband were aware of the SC judgment reported in A.I.R. 1972 even before her joining the bank and that was the basis for declaring herself as ST, naturally she must have been aware of the Government rules also. What made them to trace out the above judgment. No individual in normal course will go in searching for the above judgment. Only on coming to know that she was not eligible for job as per Government guidelines, she had gone for the above judgment to somehow make up her claim. I am, therefore, of the view that the CSE was aware of Government guidelines and in spite of that she furnished wrong information to BSRB/bank."
The disciplinary authority took action against the first respondent only on the basis of the said findings.
11. There cannot be any doubt that if the allegations against the petitioner are correct, the order of the disciplinary authority dismissing her from service would be sustainable. Disciplinary proceeding, however, is a quasi criminal proceedings. In the instant case, the definite charge against the first respondent was as to whether she committed the alleged misconduct knowingly. Misconduct is a generic term of which incidence of misconduct as may be specified by their employer as its species.
12. In Probodh Kumar Bhowmick v. University of Calcutta and Ors. reported in 1994 (2) C.L.J. 456, it was observed:
"Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, 'improper behaviour; intentional wrong doing on deliberate violation of a rule of standard or behaviour':
Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct."
13. Even in industrial laws acts of misconduct specified in standing order framed under Industrial Employment (Standing Orders) Act, 1946, are not treated to be exhaustive. Various misconducts specified in Clause 14(3) of Model Standing Order are merely illustrative.
In Mahendra Singh Dhantwal v. Hindustan Motors Ltd , a three Judge Bench of the Supreme Court observed:
"Standing Orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the Standing Order, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action..."
Even in the absence of rules specifying misconduct it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct.
See W.M. Agnani v. Badri Das reported in 1963-I-LLJ-684 AT 690. In Delhi Cloth and General Mills Company Ltd. v. Its Workmen , SHAH, J. states at p. 772 of LLJ;
"misconduct spreads over a wide and hazy spectrum of industrial activity; the most seriously subversive conducts rendering an employee wholly unfit for employment to mere technical default covered thereby."
To some extent, it is a civil crime, which is vested with civil and pecuniary consequences. See Ramakant Mishra v. State of Uttar Pradesh .
14. The Supreme Court in State of Punjab and Ors. v. Ram Singh Ex. Constable upon which Sri Mukherjee himself has placed reliance upon, held at page 219 of LLJ:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. Term embraces acts which the office-holder had no right to perform, acts performed improperly and failure to act in the face of affirmative duty to act."
15. RAMANATHA AIYAR LAW LEXICON, Reprint Edn. 1987 at page 821 defines misconduct thus:
"The term misconduct implies a wrongful intention, and not a mere error of judgment, misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official, by which the rights of a party have been affected."
16. Thus it could be seen that the word "misconduct" though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude. It must be improper or wrong behaviour unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject- matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
17. In Dzpankar Sengupta v. United Bank of India and Ors. reported in 1999 (1) L.L.N. 728, it was noticed:
"...... 'Misconduct' means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct...."
It was further stated:
In Virendra Prasad v. Union of India and Ors. reported in 1987-I-LLJ-260 (Cal), it has been held in para 12 at page 264 of LLJ:
"......Misconduct in common parlance means bad conduct and some sort of an ill motive or bad motive is an essential ingredient in imputing misconduct on to an individual. Mere error of judgment or a mere negligent way of dealing the matter cannot by itself be termed to be misconduct. It must be coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication, habitual acts of negligence, however, can be termed to be a misconduct and gross negligence also falls within the same category......
The word 'misconduct' has not been defined in the Appeal Regulations, 1976. However, Clause 24 of the United Bank of India Officer Employees' (Conduct) Regulations, 1976, provides that a breach of any of the provisions of these regulations shall be deemed to constitute a misconduct punishable under the United Bank of India (Discipline and Appeal) Regulations, 1976,"
18. If a misconduct amounts to some sort of ill motive or bad motive in its generic term, having regard to the phraseology used in para 19.5(10) of the Tripartite Settlement, the first respondent allegedly having committed an act of misconduct, "knowingly making false statements in the document pertaining to her employment in the bank" assumes significance.
19. Can any ill motive or an attempt to deceive be said to have been committed by the first respondent?
Having regard to the facts and circumstances of this case, the answer may be rendered in the negative. When she was married she was only aged 19. She categorically stated about her family background. The fact that she was accepted as a member of a ST by her husband's family has not been disputed. She has been accepted by the family of her husband or by his community has also not been found to be false.
20. A similar question in N.E. Horo v. Smt. Jahan Ara Jaipal Singh (supra) held that the field is also not in dispute. The Apex Court in N.E. Horo (supra), observed:
"It can well be said that the term 'tribal community' has a wider connotation than the expression 'tribes'. A person who, according to the strict custom of a tribe, cannot be regarded as a member of that tribe may well be regarded as a member of that tribal community. Where a non-Munda woman is married to a Munda male and the marriage is approved and sanctioned by the Parha Panchayat of that tribe and the marriage is valid she may not, on the assumption that the rule of endogamy prevails, become a member of the Munda tribe in the strict sense as not having been born in the tribe. She cannot, however, be excluded from the larger group, namely, the tribal community. The High Court has taken the view that the use of the term 'tribal communities' in addition to the term 'tribes' in Article 342 shows that a wide import and meaning should be given to these words and even if the respondent is not a member of the Munda tribe by virtue of birth she having been married to a Munda after due observance of all formalities and after obtaining the approval of the elders of the tribes would belong to the 'tribal community' to which her husband belongs on the analogy of the wife taking the husband's domicile. Even without invoking the doctrine of domicile the respondent's marriage with late Sri Jaipal Singh who was a Munda having been approved and sanctioned by the Parha Panchayat of the Munda tribe it can well be said that she became a member of the Munda tribal: community."
21. It is not a case that the purported Government guidelines were ipso facto applicable to the case of appointment by the appellant-bank. The appellant-bank did not say so in advertisement or at the time of her appointment. A bare perusal of the report of enquiry officer would go to show that she has not unto himself a right question for arriving at a conclusion on facts, so as to enable him to apply the correct legal principles. While arriving at the said decision he had not posed the question as to whether the first respondent had committed a misconduct within the meaning of the provisions of Clause 15.9(10) of Tripartite Settlement. He proceeded entirely on a wrong premise and assumed certain facts which were not borne out from records. He, thus misdirected himself in law. Whether the first respondent had the knowledge of the decision of the Apex Court is not of any moment. The enquiry officer also committed an error apparent on the face of the record by taking into consideration an irrelevant fact that she must be presumed to know the Government guidelines. No such presumption arises in law in relation to a circular letter issued by the State. The circular letter issued by the Central Government was not a law. It was merely a guideline without having the force of law. Such guidelines are not binding and in any event, it was required to be proved that somebody had made certain statements with knowledge of existence of such guidelines. No such materials have been brought on record to prove the said fact.
22. In any event, by reason of such guideline mere execution of a legal fiction was prohibited,. It does not say nor could it be said in view of the decision of the Apex Court in N.E. Horo (supra), that a lady marrying a ST was not in any event, would not become a member of Scheduled Tribe. The guideline, if construed in the manner in which it has been done by the enquiry officer would be illegal being violative of law laid down by the Apex Court. There is also no finding to the effect that the first respondent has made the aforementioned statements with a knowledge that her statements in the application were palpably false and motivated.
23. The phraseology "knowingly" used in the Tripartite Settlement should be the guiding factor in arriving at a finding as to whether the misconduct in fact has been committed or not within the meaning of the aforementioned provision. In deciding matters under the criminal law the word "knowingly" would assume importance. In the departmental proceedings also such "knowledge" would be a relevant factor.
24. Article 21 of the Constitution of India provides for a right to a citizen to work, which unless contrary to any law could also embrace within its fold, right to continue to work. If services of a person have to be dispensed with, the same has to be only in accordance with the law governing the conditions of service and not de hors the same. As the requisite ingredient for invoking the provision of Para 19.5(10) of the Tripartite Settlement had not been arrived at by the enquiry officer, his findings must be held to be perverse.
25. Let us now consider the decision of Smt. Valsamma Paul v. Cochin University and Ors., (supra). The decision of N.E. Horo v. Smt. Jahan Ara Jaipal Singh (supra), is a Constitutional Bench decision. The decision in Valsamma (supra), must be construed in the light of fact situation obtaining therein. Therein a post was reserved for Latin Catholics (backward class/fisherman). The appellant therein was a Syrian Catholic (forward class). She married a Latin Catholic and claiming herself to be a member of backward class applied for selection as reserved category candidate.
26. The question raised therein was considered in the light of Article 15(4) and Article 16(4) of the Constitution of India. The Apex Court observed:
"If a person abjures his old religion and converts to a new one, there is no loss of caste. However, where the convertee exhibits by his actions and behaviour his clear intention of abjuring the new religion, on his own volition without any persuasion and is not motivated by any benefits or gain; the community of the old order to which the convertee originally belonged, is gracious enough to admit him to the original caste either expressly or by necessary intendment; and rules of the new order permit the convertee to join the new caste, on reconversion his original caste revives and he becomes a member of that caste. However, this Court had held that in our opinion that main test should be a genuine intention of the reconvert to abjure his new religion and completely dissociate himself from it. We must hasten to add here that this does not mean that the reconversion should be only a rule or a pretext or a cover to gain mundane worldly benefits so that the reconversion becomes merely show for achieving a particular purpose whereas the real intention may be shrouded in mystery."
The question posed in that case was whether a lady marrying a Scheduled Caste, Scheduled Tribe or OBC citizen, or one transplanted by adoption or any other voluntary act, ipso facto, becomes entitled to claim reservation. It may be or may not be as the learned Judges themselves had explained that the same would depend upon the fact situation of each case.
27. We, having regard to the facts and circumstances of this case are of the opinion that although the decision of the Apex Court would operate retrospectively (the learned trial Judge held it would operate prospectively) but the same does not make any difference. The said decision was not there, when the first respondent obtained the appointment. She by no stretch of imagination, therefore, could foresee the interpretation given by the Apex Court. Even interpretation of the Constitution and provision does not apply to all circumstances as has been held by their Lordships.
28. In Council of the Institute of Chartered Accountants of India, Indraprastha Marg, New Delhi v. Sri Indrajit Roy reported in 1999(2) C.H.N. 441, it has been held:
"In S. Ganesan v. A.K. Joscelyne , it has clearly been held that omission by itself cannot be said to constitute a misconduct. In the Code of Conduct, 1988 Edn. at page 64, it is stated:
'Professional misconduct is a term of fairly wide import, but generally speaking, it implies fairly serious cases of misconduct of gross negligence. Negligence per se would not amount to gross negligence'."
29. Can it then be said that the first respondent had knowingly done so? The answer to that question must be rendered in the negative keeping in view the decision cited at the Bar. After all an order of dismissal affects one's livelihood and, thus, in a given case may attract Article 21 of the Constitution. The departmental proceedings are also quasi-criminal in nature.
30. For the reasons aforementioned, there is no merit in this appeal which is accordingly dismissed, but in the facts and circumstances of this case there will be no order as to costs.
H. Banerji, J.
31. I agree.