Allahabad High Court
Reeta Gupta vs Astt. General Manager Personal ... on 7 August, 2023
Author: Irshad Ali
Bench: Irshad Ali
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Neutral Citation No. - 2023:AHC-LKO:52423 Court No. - 5 [AFR] [Reserved] Case :- WRIT - A No. - 2000700 of 2003 Petitioner :- Reeta Gupta Respondent :- Astt. General Manager Personal Orienetal Bank Of Commerce Counsel for Petitioner :- Rajiv Srivastava,Smt. Nalini Jain Counsel for Respondent :- B.B.Saxena,Ghaus Beg,Vinay Shanker -:: A N D ::- Case :- WRIT - A No. - 2000699 of 2003 Petitioner :- Sanjai Gupta Respondent :- Astt. General Manager Personal Orienetal Bank Of Commerce Counsel for Petitioner :- Rajiv Srivastava Counsel for Respondent :- B.B.Saxena,C.S.C.,Vinay Shankar Hon'ble Irshad Ali,J.
1. Heard Shri Rajiv Srivastava, learned counsel for the petitioner and Shri Vinay Shankar, learned counsel for the respondent.
2. Since both the writ petitions involves similar controversy, they are being decided collectively by this common judgement and Writ-A No. 2000700 of 2003 is being treated as leading case.
3. By means of the present writ petition, the petitioner has prayed for the following reliefs:
(i) a writ of certiorari or a writ or direction in the nature of certiorari quashing the order of "Removal from service which shall not be a disqualification for furture employment", as contained in Letter No.H.O.:PER(DAD): 2291 (Annexure-1) passed by A.G.M. (Personal), Head Office, New Delhi, dated September 21, 2002.
(ii) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the order of Appellate Authority opposite party no.3 as contained in letter no. H.O.:PER (DAD) 620 dated February 3/4 2003 (Annexure 2), upholding the punishment imposed by opposite party no.1 vide his letter dated 21/9/2002.
(iii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.4 to continue to treat the petitioner in service with consequential benefits treating the order passed by opposite party no.1 removing the petitioner from service vide (Annexure-1) and the order of the Appellate Authority, opposite party no.3 upholding vide letter H.O.: PER(DAD) 620, (Annexure-2) the order of removal against the petitioner passed by opposite party no.1 as void abinitio.
(iv) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.5 to deem the mandatory statutory provision of consultation provided under Section 19 of the Banking companies (Acquisition and Transfer of undertakings) Act, 1980 as not having taken place to the extent there is no express provision as to an Officer (petitioner) not to be subjected to the imposition of a major penalty like removal from service by an authority lower in rank and grade then the appointing authority in regulation 3(g) of Oriental Bank of commerce Discipline & Appeal Regulations, 1982 as provided in 68 (II) of the State Bank of India Officers service regulation.
(v) A writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.6 to deem the mandatory provision of previous sanction as not having been accorded in framing the Discipline & Appeal Regulations of Oriental Bank of Commerce to the extent regulation 3(g) of the said regulations does not expressly provide that a major penalty like removal from service imposed upon the petitioner cannot be inflicted by an officer not below the rank of appointing authority of the petitioner, as it is provided in regulation 68(II) of service regulation applicable to officers of State Bank of India.
(vi) Any other appropriate writ, order or direction which this Hon'ble Court may deem just and proper in the facts and circumstances of the case.
(vii) Allow the writ petition with costs in favour of the petitioner.
4. By means of Writ-A No.2000699 of 2003, the petitioner has prayed for the following reliefs:
(i) a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the order of "Removal from service which shall not be a disqualification for future employment", as contained in Letter No.H.O.: PER (DAD): 2292 (Annexure-1) passed by A.G.M. (Personnel), Head Office, New Delhi, dated September 21, 2002.
(ii) Issue a writ of certiorari or a writ, order or direction in the nature of certiorari quashing the order of Appellate Authority opposite party no.3 as contained in letter no. H.O.: PER (DAD): 620 dated February 3/4, 2003 (Annexure-2) upholding the punishment imposed by opposite party no.1 vide his letter dated 21.9.2002.
(iii) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.4 to continue to treat the petitioner in service with consequential benefits treating the order passed by opposite party no.1 removing the petitioner from service vide (Annexure-1) and the order of the Appellate Authority, opposite party no.3 upholding vide letter H.O.: PER(DAD) 620, Annexure-2 the order of removal against the petitioner passed by opposite party no.1 as void abinitio.
(iv) Issue a writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.5 to deem the mandatory statutory provision of consultation provided under Section 19 of the Banking Companies (Acquisition and Transfer of undertaking) Act, 1980 as not having taken place to the extent Regulation 3(g) does not expressly provide for imposing a major penalty like removal from service by an authority not lower in rank and graded than the Appointing Autority as it is provided in the proviso to Regulation 68(II) of State Bank of India, Officers Service Rules.
(v) A writ of mandamus or a writ, order or direction in the nature of mandamus commanding the opposite party no.6 to deem as if the previous sanction to the making of Oriental Bank of Commerce, Officer Employees Discipline and Appeal Regulations, 1982 has not been accorded to the extent Regulation 3(g) of the said Regulations does not expressly contain the provision to Regulation 68(II) of State Bank of India Officers Service Rules, which provides, "Where the Disciplinary Authority is lower in rank than the Appointing Authority in respect of the category of officers to which the petitioner belongs, no order for imposing any of the major penalties specified in clauses (e),(f),(g) and (h) of rule 67 shall be made except by the Appointing Authority o any authority higher than it on the recommendations of the Disciplinary Authority."
(vi) Any other appropriate writ, order or direction which this Hon'ble Court may deem just, and proper in the facts and circumstances of the case.
(vii) Allow the writ petition with costs in favour of the petitioner."
5. Facts of Writ-A No.2000700 of 2013 are that the petitioner was appointed/ promoted on 12.7.1995 as Manager in MMG II by Deputy General Manager in terms of "Competent Authority" designed by the Board of Directors of the Bank for the purpose of an appointment of an officer in the rank and grade of the petitioner. On 25.9.2000, the petitioner was served upon a letter by Deputy General Manager, Lucknow with reference to a complaint made by one Shri Dushyant Singh alleging therein certain financial irregularities against the petitioner.
On 9.10.2000, the petitioner submitted her reply to the Deputy General Manager, Regional Office, Lucknow. On 27.1.2001, opposite party no.1- Assistant General Manager (Personnel), Head Office, New Delhi served a show cause notice upon the petitioner on the subject matter of the complaint already having been taken cognizance of by the Deputy General Manager, Regional Office, Lucknow.
On 27.6.2001, the petitioner was served upon a charge-sheet by opposite party no.1, Assistant General Manager (Personnel), Head Office, New Delhi to which the petitioner submitted her reply on 11.7.2001. On 8.8.2001, the opposite party no.1 instituted the enquiry against the petitioner. On 6.5.2002, the complainant (Shri Dushyant Singh) confirmed having written to the petitioner his letter dated 25.1.2000 absolving her of any responsibility in respect of any of the accounts held in the name of his mother or in his own name jointly with his mother in Oriental Bank of Commerce as well as in banks mentioned in the aforesaid letter.
On 1.7.2002, the opposite party no.1, Assistant General Manager (Personnel), Head Office, New Delhi asked from the petitioner to make his representation to the report of the inquiry officer received by the petitioner enclosed with the letter of the opposite party no.1. On 23.7.2002, the petitioner submitted her representation with opposite party no.1 on the report of Inquiring Authority.
On 21.9.2002, opposite party no.1 imposed a major penalty of "Removal from service which shall not be a disqualification for future employment" on the petitioner in terms of Regulation 4(i) of the (Discipline and Appeal) Regulations, 1982 by a non-speaking order.
The opposite party no.1, at no point of time, neither when he served upon the petitioner the charge sheet nor when he imposed upon the petitioner the punishment of removal was the competent Disciplinary Authority in respect of the petitioner much less competent was he to impose the major penalty of removal from service.
In terms of schedule as providing for Disciplinary Authority in respect of the petitioner appended to the Discipline and Appeal Regulations, 1982 as amended upto 30.06.2002, Disciplinary Authority spcified in the schedule which is competent to impose any of the penalties in Regulation 4 is Deputy General Manager, Regional Office, Lucknow. But, as on the date of imposition of the penalty by opposite party no.1 the amended schedule dated 8.2.2002 had come into force.
Again, Deputy General Manager, Regional Office, Lucknow is the authority specified in the schedule competent to impose any of the penalties upon the petitioner in terms of Regulation 4 as read with Regulation 5(3). Also Regulation 3(g) of Oriental Bank of Commerce Discipline and Appeal Regulations, 1982 is in pari materia with Regulation 68 of State Bank of India Officers Service Rules. Therefore, the protection of not being subjected to the infliction of a major penalty like removal from service by an authority lower than the Appointing Authority as available to Officers in State Bank of India is available to the petitioner also.
The order under challenge passed by opposite party no.1 of removal from service which shall not be disqualification for future employment and rejection of the appeal is violative of Articles 14, 16, 19 and 21 of the Constitution of India.
On 7.1.2003, the writ petition no.1/2003 (SB) filed by the petitioner against the order of removal from service was relegated to statutory Appellate Authority by this Hon'ble Court with the direction to the Appellate Authority to decide the appeal on merits and in accordance with law.
On 15.1.2003, the petitioner filed her comprehensive appeal to the Appellate Authority, opposite party no.3, General Manager (Personnel) Head Office, New Delhi which has been dismissed upholding the order of the Disciplinary Authority.
6. Facts in Writ-A No.2000699 of 2003 are that the petitioner was appointed/ promoted as Officer in JMGS I by Deputy General Manager, Regional Lucknow. On 15.4.1999, the petitioner was confirmed as Officer in JMGS I by Deputy General Manager, Regional Lucknow with effect from 20.3.1999.
On 10.10.2000, the Deputy General Manager, Regional Lucknow, opposite party no.2 issued a letter No.ROL/I&C/4163 dated 10.10.2000 captioned "Irregularities committed by you during your posting at Gorakhnath, Gorakhpur" and adviced the petitioner to deposit the amount fraudulently withdrawn by him.
On 23.10.2000, the petitioner's letter of compliance dated 23.10.2000 addressed to opposite party no.2, Deputy General Manager, Regional Lucknow admitting his lapses therein. The Deputy General Manager, Regional Lucknow, the competent Disciplinary Authority in terms of Regulation 3(g) of Oriental Bank of Commerce Discipline and Appeal Regulations, 1982 took his decision as to the alleged lapses and admission of guilt in respect of those lapses by advising to deposit the amount and to certify that no such lapses have been committed by the petitioner in any office he has worked at.
On 27.6.2001, the petitioner was served with a charge sheet by opposite party no.1, Assistant General (Personnel) Head Office, New Delhi. On 8.8.2001, the opposite party no.1, Assistant General Manager (Personnel), Head Office, New Delhi instituted the inquiry proceedings. On 1.7.2002, the opposite party no.1, Assistant General Manager (Personnel) Head Office, New Delhi asked from the petitioner to make his representation to the report of the inquiry officer received by the petitioner enclosed with the letter of the opposite party no.1.
On 23.7.2002, the petitioner submitted his representation with opposite party no.1 on the report of Inquiring Authority. On 21.9.2002, the opposite party no.1 imposed a major penalty of "Removal from service which shall not be a disqualification for future employment" on the petitioner in terms of Regulation 4(i) of the (Discipline and Appeal) Regulations, 1982 by a non-speaking order.
The opposite party no.1, at no point of time, neither when he served upon the petitioner the charge-sheet nor when he imposed upon the petitioner the punishment of removal, was the competent Disciplinary Authority in respect of the petitioner, much less competent was he to impose the major penalty of removal from service.
7. Learned counsel for the petitioner submitted that the order dated 21.9.2002 passed by Assistant General Manager (Personnel), Head Office, New Delhi imposing a major penalty of "Removal from service which shall not be a disqualification for future employment", passed under Regulation 4(i) of Discipline and Appeal Regulations,1982 is not an order supported by reasons and is thus not a speaking order. Against the finding of the Inquiring Authority in respect of charge no.1 as unauthorized and highly irregular act the opposite party no.1 has treated the petitioner as having fraudulently got credited the proceeds of Transfer Payment Order to her own account. To the extent the opposite party no.1 has differed with the finding of the Inquiring Authority, he is liable to afford an opportunity to the petitioner to explain her conduct in respect to charge no.1.
8. Learned counsel for the petitioner next submitted that the finding of the Inquiring Authority in respect of charge-2 is perverse inasmuch as the said finding is based on disregard of the evidence given in the proceedings in respect of the said charge. The charge has been proved in complete disregard and violation of the provision to Regulation 15 of the Discipline and Appeal Regulations, 1982. The opposite party no.1 vide his order dated 21.9.2002 passed his order in respect of charge no.2 in spite of the proviso to Regulation 15 without assigning any reason. Thus, opposite party no.1 has passed a non-speaking order in respect of charge no.2 also.
9. Learned counsel for the petitioner next submitted that the Appellate Authority (opposite party no.3) has not passed a reasoned order and has summarily rejected the appeal filed by the petitioner in pursuance of the orders passed by this Hon'ble Court in Writ Petition No.1(SB) of 2003 in spite of the direction of this Hon'ble court to decide the appeal filed by the petitioner on merits, the opposite party no.3 has failed to do so.
10. Learned counsel for the petitioner next submitted that the order of the opposite party no.1 in imposing a major penalty of removal from service which shall not be a disqualification for future employment, in terms of Regulation 4(i) was wholly without jurisdiction as an Officer below the rank of a Deputy General Manager, in the Bank was never the competent Disciplinary Authority to impose the major penalty of removal from service which shall be a disqualification for future employment in terms of Regulation 4(i).
11. Learned counsel for the petitioner next submitted that the penalty of removal from service in terms of Regulation 4(i) imposed on the petitioner is disproportionately excessive as even after it was prima facie established that the petitioner could be responsible for an irregular act, she was not placed under suspension as contemplated under Regulation 12(1) a by the competent Disciplinary Authority.
12. Learned counsel for the petitioner next submitted that the Discipline & Appeal Regulations framed for State Bank of India and Oriental Bank of Commerce by their respective Boards are in Pari Materia, the words "Competent to impose" occurring in the definition of Disciplinary Authority in terms of Regulation 3(g) of Discipline & Appeal regulations of Oriental Bank of Commerce has to be read with the proviso to Regulation 68(ii) of the State Bank of India Officers' Service Rules.
13. Learned counsel for the petitioner next submitted that the definition of competent authority in terms of Regulation 3(g) does not merely provide for an authority specified in the schedule as the Disciplinary Authority. It also clearly mandates that the Disciplinary Authority has to have the competence to impose any of the penalties specified in Regulation 4 of the Discipline & Appeal Regulations. The competence to impose a major penalty like removal from service upon the petitioner is conferred only when such authority is not below the rank of the appointing authority as is the case applicable to the officers of State Bank of India.
14. Learned counsel for the petitioner next submitted that the petitioner has got the vested right to be judged in respect of the security of tenure in the service of the Bank which is an instrumentality of the State by an Authority/ Officer not below the rank of her Appointing Authority.
15. Learned counsel for the petitioner next submitted that the State Bank of India being a public sector bank as per Regulation 3(1)(iii) for the purpose of Discipline & Appeal Regulations of Oriental Bank of Commerce, the words 'competent to impose' as given in the definition of Disciplinary Authority in terms of regulation 3(g) have to be construed so as not to render them redundant. By reading the proviso to Regulation 68 (II) of State Bank of India Officers Service Rules which provides that a major penalty can be imposed only by an authority not lower in rank and grade than the Appointing Authority in Regulation 3(g) of Oriental Bank of Commerce, the words 'competent to impose' can be given meaning and substance.
16. Learned counsel for the petitioner next submitted that the Discipline & Appeal Regulations in State Bank of India and Oriental Bank of Commerce have been framed in consultation with Reserve Bank of India and with previous sanction of Central Government, the protection of not, being subjected to the imposition of a major penalty applicable to Officers in State Bank of India in terms of the proviso to Regulation 68(II) of State Bank of India Officers Service Rules by an authority not lower in rank than the Appointing Authority has to be read in the definition of Disciplinary Authority provided in regulation 3(g) of Oriental Bank of Commerce Officer Employees (Discipline & Appeal) Regulation, 1982 in order to safeguard the rights of the petitioner as contained in Articles 14, 16, 19 and 21 of the Constitution of India.
17. Learned counsel for the petitioner next submitted that the punishment imposed upon the petitioner of removal from service is grossly unfair and disproportionate to the finding of the Inquiring Authority.
18. Learned counsel for the petitioner next submitted that the impugned order of removal which shall not be a disqualification for future employment imposed upon the petitioner in terms of Regulation 4 (i) by opposite party no.1 is void abinitio and cannot be cured by rejection of her appeal vide order dated 3/4 February, 2003 of the Appellate Authority.
19. Learned counsel for the petitioner next submitted that the removal of the petitioner from the service of the Bank by an authority lower than her appointing authority is clearly violative of Article 14, 16 and 21 of the Constitution of India.
20. Learned counsel for the petitioner next submitted that the order of the Appellate Authority, opposite party no.3, contained in Annexure CA-9 to the counter affidavit filed on behalf of the opposite parties has been passed in complete disregard of the change in jurisdiction of the competent disciplinary authority in respect of the petitioner vide Circular No.PER/12/02/347 dated 8.2.2002 (page 95 of the writ petition), which rendered the impugned order passed by the opposite party no.1 wholly without jurisdiction thereby rendering the said impugned order void ab initio.
21. Learned counsel for the petitioner next submitted that the order of the Appellate Authority, opposite party no.3 contained in Annexure CA-9 to the counter affidavit filed on behalf of the opposite parties has been passed without any application of mind on the most material grounds taken in the appeal of the petitioner, thereby rendering the aforesaid order as patently illegal, being arbitrary and discriminatory.
22. In support of his submissions, learned counsel for the petitioner has placed reliance upon the following judgments:
(i) State Bank of India v. S. Vijay Kumar, decided on 18.7.1990 passed in Civil Appeal Nos.3392-3394 of 1990
(ii) Sirsilk Ltd. v. Textile Committee and Ors. reported 1989 Supp (1) SCC 168
(iii) Kirshna Kumar v. Divisional Assistant, Electrical Engineer, Central Railway and others reported in (1979) 4 SCC 289
(iv) Punjab National Bank and others v. Kunj Behari Mishra reported in (1998) 7 SCC 84
(v) Dr. Har Kishan Singh v. State of Punjab and others, decided on 25.3.1971 passed in Civil Appeal No.430 of 1970
(vi) Union of India and others and J.A. Munaff, decided on 7.12.1967 passed in Civil Appeal No.995 of 1967
23. Per contra, Shri Vinay Shanker, learned counsel for the respondents submitted that the petitioner was promoted by the Interview committed and not by the Deputy General Manager as per provisions of Promotion Policy of the respondent Bank and promotion letter dated 17.7.1995 was issued by the Assistant General manager (Per.) Competent Authority for Scale-II officers is Regional Head/ Chief Manager. Thus, Scale-IV officer is appointing authority for Scale-II officers.
24. Learned counsel for the respondents next submitted that actually the petitioner was not appointed in MMGS-II instead she was appointed as Clerk/ Typist and her Appointing Authority for the said post is Assistant Regional Manager i.e. an officer in MMGS-III. She was promoted to the post of Manager as per promotion policy of the respondent Bank.
25. Learned counsel for the respondent next submitted that at the relevant point of time, the Deputy General Manager, Regional Office, Lucknow was controlling the Lucknow Region administratively but the Disciplinary Authorities for all employees of the respondent-Bank were at Head Office and Assistant General Manager (Per.) was the Disciplinary Authority for the Officers in JMG Scale-I and MMG Scale-II. Since the petitioner was an officer in MMG Scale-II, the Asstt. General Manager (Per.) at Head Office was his Disciplinary Authority under OBC Officer employees (Discipline & Appeal) Regulations, 1982.
26. Learned counsel for the respondents next submitted that even in circular dated 8.2.2002, it is clarified that in the cases where Award Staff/ Officers in JMG Scale-I and MMG Scale-II have been placed under suspension/ charge-sheeted prior to 8.2.2002 the competent authority in all such cases will be the Head Office. Since the petitioner was charge sheeted on 27.6.2002 her Disciplinary Authority was the Assistant General manager (Per) at Head Office.
27. Learned counsel for the respondent next submitted that the Asstt. General Manager (Per.) was/ is the competent Disciplinary Authority for the petitioner and the same is as per schedule to the OBC Officer Employees (Discipine & Appeal) Regulations, 1982 at the relevant time. The schedule to the above said regulations amended upto 30.06.2002 was inserted vide circular dated 8.2.2002 whereas the petitioner was charge sheeted on 27.6.2001 and as per the schedule to the said Regulations existing as on 27.06.2001, the opposite party no.1 Asstt. General Manager (Per.) was the competent Disciplinary Authority for the petitioner..
28. I have considered the submissions advanced by learned counsel for the parties and law-reports cited by learned counsel for the petitioner.
29. Perusal of the material on record reveals that the petitioner was appointed/ promoted on 12.7.1995 as Manager in MMG II by Deputy General Manager. On 25.9.2000, the petitioner was served upon a letter by the Deputy General Manager with reference to a complaint made by Shri Dushyant Singh alleging certain allegation, to which petitioner submitted reply on 9.10.2000. Respondent no.1 (Assistant General Manager (Personnel), Head Office, New Delhi served a show cause notice upon the petitioner on 27.1.2001 of the complaint already having been taken cognizance of by the Deputy General Manager, Regional Office, Lucknow.
It also reveals that on 27.6.2001, the petitioner chargesheeted by respondent no.1, to which the petitioner submitted her reply on 11.7.2001. On 8.8.2001, the respondent no.1 instituted enquiry against the petitioner. On 1.7.2002, respondent no.1 asked from the petitioner to make his representation to the report of the inquiry officer received by the petitioner, to which petitioner submitted her representation on 23.7.2002. On 21.9.2002, respondent no.1 imposed a major penalty of "Removal from service which shall not be a disqualification for future employment. Against which, the petitioner filed a writ petition bearing Writ Petition No.1/2003 (SB) which has been disposed of with the direction to the Appellate Authority to decide the appeal on merits and in accordance with law. On 15.1.2003 the petitioner filed comprehensive appeal before respondent no.3 i.e. General Manager (Personnel) Head Office, New Delhi which has been dismissed while upholding the order of the Disciplinary Authority.
30. Learned counsel for the petitioner relied upon the several judgments in support of his submissions, relevant portions of which are being quoted below:
(i) State Bank of India (supra):-
20. All the employees of the bank in the cases before us were appointed by the Executive Committee. Order of dismissal in their cases has been passed by the Chief General Manager. It is an admitted position that on the date of passing the order of dismissal the Chief General Manager was the appointing authority. According to the Bank though the employees were appointed by the Executive Committee, but at the time when inquiry was held and the order of dismissal passed, the Chief General Manager had become the appointing authority. On the other hand the contention on behalf of the employees is that the Executive Committee being the appointing authority, no authority lower than the Executive Committee can pass the order of dis- missal in their cases. According to their contention the Chief General Manager, being a lower authority than the Executive Committee, he had no competence to pass the order of dismissal. Learned counsel for the employees in this regard referred to Ar- ticle 311 of the Constitution of India and placed reliance on a plethora of cases decided on the basis of guarantee enshrined under Article 311 of the Constitution.
22. Now so far as the right which has been conferred on the employees of the State Bank contained in Regulation 55(2)(a) is that such officers or employees shall not be dismissed from service of the State Bank by an authority lower than the ap pointing authority. Thus a comparison of the provisions contained in Article 311(1) of the Constitution and the right guaranteed to the employees of the State Bank under Regulation 55(2)(a) shows that there is a material differences between the language used in the two provisions. Under Article 311(1) the words used are "by which he was appointed" In Regulation 55(2)(a) there are no such words "By which he was appointed" and in its place the only right guaranteed is that the employee shall not be dismissed by an authority lower than the appointing authority. Thus the right guaran teed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. A perusal of the relevant Regulations and Rules mentioned above clearly go to show that the Chief General Manager had become the appointing authority of the employees in question under Regulation 55(2)(a) with effect from 1.724 Admittedly the orders of dismissal have been passed long after these amendments when the Chief General Manager had already become their appointing authority under the Regula tions and the Rules. The right that an officer or employee of the State Bank of India cannot be dismissed from service by an authority lower than the appointing authority is a creation of statutory rules and regulations. So far as the right or protection guaranteed under Article 311 of the Constitution is concerned, it applies to members of the Civil Service of the Union or an All India service or a Civil Service of the Union or an All India service or a Civil Service of a State of who holds a Civil Post under the Union or a State. Admittedly the employees of the State Bank do not fall under any one of these categories and they cannot seek any protection under Article 311(1) of the Constitution. The employees of the State Bank can only claim such rights which have been conferred under Regulation 55(2)(a) of the General Regulations. The only right conferred under the said provision is that the officers or employees of the State Bank cannot be dismissed by an authority lower than the appointing authority. With the risk of repetition it may be stated that on the date when the order of dismissal has been passed, Chief General Manager had already become the appointing authority and as such the order of dismissal has not been passed by an authority lower than the appointing authority.
(ii) Sirsilk Ltd. (supra):-
28. The Industries (Development and Regulation) Act, 1951 and the Textiles Committee Act, with which we are concerned, may properly be considered to be statutes in pari materia. According to Sutherland:
"Statutes are considered to be in pari materia to pertain to the same subject-matter when they relate to the same person or things, or to the same class of persons or thing, or have the same purpose or object. (Statutes and Statutory Construction, Vol. 2, p. 535, 3rd Edn.)"
The object of either of these two Acts is to protect and to assist in the development of Textile Industry inter alia. "Assistance in ascertaining the meaning of an enactment may be obtained by comparing its language with that used in earlier statutes relating to the same subject" (Craies on Statute Law, p. 140, 1971 Edn.). Maxwell also in The Interpretation of Statutes (1976 Edn. p. 66) states that:
"light may be thrown on the meaning of a phrase in a statute by reference to a specific phrase in an earlier statute dealing with the same subject-matter."
The Industries (Development and Regulation) Act, 1951 is an Act earlier in point of time and we see no reason why if a subsequent statute by the same legislature can be pressed in aid for the purpose of interpreting in the event of any doubt, the provisions of an earlier statute, the earlier statute cannot be made use of for the purpose of construing, in the event of ambiguity, the provisions of a later statute.
(iii) Krishna Kumar (supra):-
4. Article 311(1) of the Constitution provides that no person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed. The simple question for determination is whether, as alleged by the appellant, he was removed from service by an authority subordinate to that which had appointed him. The relevant facts are but these and these only: The appellant was appointed as a Train Lighting Inspector under an order issued by the Chief Electrical Engineer and was removed from service under an order passed by the Divisional Assistant Electrical Engineer, Central Railway, Nagpur. The narrow question, therefore, for consideration is whether the Divisional Assistant Electrical Engineer is subordinate in rank to the Chief Electrical Engineer. None of the affidavits filed by Shri Sarathy, who passed the order of removal says that the post of Divisional Assistant Electrical Engineer is equivalent to that of the Chief Electrical Engineer in the official hierarchy. That the former is not higher in rank than the latter is self-evident. In the circumstances, it seems clear that the appellant was removed from service by an authority which is subordinate in rank to that by which he was appointed.
(iv) Punjab National Bank (supra) :-
18. Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representing to the disciplinary authority before that authority differs with the enquiry officer's report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed. This is required to be done as a part of the first stage of enquiry as explained in Karunakar case [(1993) 4 SCC 727 : 1993 SCC (L&S) 1184 : (1993) 25 ATC 704] .
19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.
(v) Dr. Harkishan Singh (supra):-
11. Rule 9(2) does not contain any restrictive word that only members of the service shall be eligible to promotion to a selection grade. The proviso to rule 9(2) contains a word of limitation and it is that no member of the service shall be entitled fright to such promotion. To exclude appointment to selection grade would be to rule 5 as well as rules 9(2) and 9(3) of their contents because rule 5 speaks of ap tment to the service to be either by promotion or by direct recruitment. Rule 9(2) eaks of eligibility of members of the service for promotion to the selection grade d rule 9(3) speaks of number of appointments in the selection grade and rule 9(3) speaks of number of appointments in the selection grade not to exceed 25 per cent of appointments in the service; The service as defined in rule 2(c) means the Punjab Civil Medical Service Class I Selection grade in the Punjab Civil Medical Service Class I. That is not disputed. Therefore, rule 5 which specifically speaks of appoint- ment to the service by direct recruitment embraces Class I and the Selection grade which is a part and parcel of Class I. The word 'Appointment' in rule 9(3) in regard to selection grade as not exceeding 25 per cent of the total number of appointments in the service contemplates both promotion and direct appointment in that service con templates both promotion and direct appointments in the service to the selection grade. The word "appointment' cannot mean only promotion. It means appointment both by promotion and by direct recruitment; That is why the word 'appointment' is used in the sense once in relation to selection grade and again in relation to the total number of appointments to the service. Direct appointment to selection grade is not only contemplated in the rules particularly rules 5, 9(2) and 9(3) but is also the im- plicit idea inherent in the word direct recruitment and direct appointment' in Rule 5 for purpose of attracting able and meritorious persons to the service including the selection grade. The fallacy in the appellant's contention is that though selection grade will be within the definition of the service in rule 2(c) wherever the word 'service' occurs in rules 5 and 9 the construction put upon the word 'service' is members of the service who are in class I on time scale appointment and who alone can be promoted to the selection grade and that there cannot be any direct appointment to selection grade.
(vi) Union of India (supra):-
10. The situation here seems to be different. The expression 'Disciplinary Authority' has a two-fold meaning. For the purpose of imposing penalties of compulsory retirement, removal or dismissal, it can only be the appointing authority, whereas in relation to the is sue of charge-sheets etc., under rules 1709 to 1712 and 1716 it can be any authority competent to impose any of the penalties specified in rule 1707. Rule 1707, as already noted, enumerates the various pe- nalties which can be imposed on a railway servant including those mentioned above. Rule 1705 read with Schedule II (for the purpose of this case) shows that the Head of the Department is competent to impose some of the penalties on class IV artisans and class III staff. If, therefore, the charge-sheet issued to the respondent in this case was in conformity with rule 1705 read with Schedule II, there was nothing irregular in the enquiry and it was open to the appointing authority, namely, the General Manager, to impose on the respondent the penalty of dismissal from service. In the absence of all the available material, we find ourselves unable to accept the judgment of the High Court in this case. We therefore set aside the judgment appealed from and remand the matter to the High Court for consideration of the point canvassed before us afresh, if necessary by giving the parties opportunity of adducing evidence by affidavit as ta whether the respondent belonged to class IV or class III staff or was an artisan and whether the charge-sheet was issued by the Head of the Department to which the respondent belongs.
31. On perusal of the above-extracted judgments, it is crystal clear that the right guaranteed in case of the officers or employees of the State Bank is that the order of dismissal cannot be passed by an authority lower than the appointing authority. Article 311 (1) of the Constitution provides that no person who is a member of a civil services of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.
It is also crystal clear that when the disciplinary authority disagrees with the findings of the inquiry Authority and is required to record its own reasons for such disagreement and also to record its own finding on such charges, it is required to give a hearing to the delinquent officer.
32. I have carefully examined the material on record in the light of the law-reports cited by learned counsel for the petitioner.
33. While passing the order dated 21.9.2002 imposing the major penalty of "Removal from Service which shall not be a disqualification for future employment", the respondent no.1 [Assistant General Manager (Personnel), Head Office, New Delhi] has differed with the finding of the Inquiry Officer with respect of charge no.1 that the petitioner has been found to have committed an unauthorized and highly irregular Act, and has recorded finding that the petitioner has been found guilty of committing a fraud. In the order, the Disciplinary Authority has not given any reason as to why he did not accept the finding of the enquiry officer. In this view of the matter, this Court is of the opinion that in case the Disciplinary Authority has disagreed with the finding of the enquiry officer, the Disciplinary Authority would have given opportunity to the petitioner to submit her representation as to why her act was not a fraud and only a irregularity, and to explain her conduct in respect to charge no.1 which has not been done.
34. In the order passed by the respondent no.3 i.e. Appellate Authority rejecting the appeal, the Appellate Authority without assigning any reason in regard to disagreement of the Disciplinary Authority with the finding of the enquiry officer, passed the order upholding the order of the Disciplinary Authority without application of mind. The Appellate Authority has also not given opportunity to the petitioner to rebut the adverse observations. In this view of the matter, this Court is of the opinion that the order has been passed by the Appellate Authority without any application of mind.
35. It has been well settled law that when the disciplinary authority disagrees with the finding of the enquiry authority, and is required to record its own reasons, for such disagreement and to record its own finding on such charge, it is required to give a hearing to the delinquent officer.
36. It may be remembered that the Enquiry Officer's report is not binding upon the Disciplinary Authority to come to its conclusion on the charges. It is not in the nature of an appeal from the inquiry officer to the Disciplinary Authority. It is one and the same proceedings. It is open to a disciplinary authority to hold the inquiry himself. It is equally open to him to appoint an inquiry officer to conduct the inquiry and place the entire record before him with or without his findings.
37. The Hon'ble Supreme Court as well as this Court in catena of judgments repeatedly observed that whenever the disciplinary authority disagrees with the enquiry authority on any article of charge then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its finding. The report of the inquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the inquiry officer. The principles of natural justice require the authority which has to take a final decision and can impose a penalty, to given an opportunity to the charged officer to file a representation before the disciplinary authority records its finding on the charges framed against the officer.
38. Considering in totalities of facts and circumstances of the case, both the writ petition are allowed. Order of "Removal from service which shall not be a disqualification for future employment", as contained in Letter No.H.O.: PER(DAD): 22991 (Annexure-1) passed by A.G.M. (Personnel), Head Officer , New Delhi dated September 21,2002 as well as order of the Appellate Authority (Opposite Party No.3) as contained in letter no.H.O.: PER(DAD) 620 dated February 3/4, 2003 (Annexure no.2) [both the orders have been challenged in Writ-A No.2000700 of 2003] and order of "Removal from service which shall not be a disqualification for future employment" as contained in Letter No.H.O.: PER (DAD): 2292 (Annexure-1) passed by the A.G.M. (Personnel), Head Office, New Delhi, dated September 21, 2002 as well as order of the Appellate Authority (Opposite Party no.3) contained in letter no. H.O.: PER(DAD) 620 dated February 3/4, 2003 (Annexure-2) [both the orders have been challenged in Writ-A No.2000699 of 2003] are hereby quashed. However, the respondent no.4 is directed to continue to treat the petitioner in service with all consequential benefits.
Order Date :- 7/8/2023
GK Sinha [Irshad Ali,J.]