Calcutta High Court (Appellete Side)
United Bank Of India vs Pradyut Kumar Mitra And Ors on 31 October, 2014
Author: R. K. Bag
Bench: Tapan Kumar Dutt, R. K. Bag
Form No. J(2)
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
Hon'ble Justice Tapan Kumar Dutt,
And
Hon'ble Justice R. K. Bag,
F.M.A. 16 of 2012
United Bank of India
V.
Pradyut Kumar Mitra and Ors.
For the Appellant : Mr. R. N. Majumdar,
Mr. Sourav Chakraborty,
Mr. Supratim Bhattacharya,
For the Respondent : Mr. Soumya Majumdar,
No.1 Mr. Ritzu Ghoshal,
Mr. Pramod Kr. Mishra,
Mr. Anupam Das Adhikary,
Mr. Tridib Chakraborty,
Heard on : 12.08.2014, 28.08.2014,
15.09.2014, 16.09.2014.
Judgment on : 31.10.2014
R. K. Bag, J.
This appeal at the instance of the respondent no.1 of the writ petition arises out of order dated 25.03.2010 passed in W.P. No.15326 (W) of 1997, by which Learned Single Judge was pleased to set aside the punishment awarded to the writ petitioner and direct the respondent no.1 to impose punishment on the writ petitioner for minor misconduct.
2. The writ petitioner was a cash clerk of the United Bank of India (hereinafter referred to as the appellant bank). It is alleged that on 7th September, 1983 at 3:40 p.m. the writ petitioner left the Titagarh Branch of the appellant bank where he was working and entered Kanchrapara Branch of the said bank. It is further alleged that the writ petitioner entered the chamber of the agent of Kanchrapara Branch of the appellant bank and abused him with filthy language and threatened him with bodily injury. The writ petitioner was charged for committing the following misconduct: i) riotous and/or disorderly or indecent behaviour on the premises of the bank, ii) doing an act prejudicial to the interest of the bank, iii) leaving the place of work and iv) interfered with the bank's work without any purpose. The departmental enquiry started against the writ petitioner on the allegation of committing the above misconduct culminated in imposition of penalty of "stoppage of three annual increments with cumulative effect having the effect of postponing future increments." The writ petitioner challenged the order of imposition of penalty dated 27th April, 1985 by filing W.P. No.15326 (W) of 1997 which was disposed of on 25.03.2010. Learned Single Judge was pleased to set aside the order of imposition of penalty on the writ petitioner and directed the appellant bank to revise punishment in the light of the observations made in the judgement, so that only penalty contemplated for minor misconduct may be imposed.
3. It is held by Learned Single Judge that the charges alleged against the writ petitioner have not been proved and that there is also an element of bias on the part of the Enquiry Officer in coming to the conclusion that the charges have been proved. It is also held by Learned Single Judge that the conduct of the writ petitioner may fall within the ambit of minor misconduct and as such the disciplinary authority was directed to impose punishment on the writ petitioner for minor misconduct.
4. Mr. R. N. Majumdar, Learned Counsel appearing for the appellant bank contends that the writ court cannot rescind or change or modify the punishment for the misconduct of the writ petitioner, which is arrived at by way of bipartite settlement under the Industrial Disputes Act. Mr. Majumdar has relied on the case of "Jyotish V. Union of India" reported in 1994 (2) LLJ 804. It is held by the Supreme Court in paragraph 9 of this report that a right accrued under the settlement cannot be enforced against the company, though the company is state under Article 12 of the Constitution, because the settlement falls within the ambit of Section 2(P) of the Industrial Disputes Act, 1947. In the instant case, the writ petitioner has not prayed for enforcement of any right under the memorandum of settlement between the appellant bank and their workmen on 19th October, 1966. On the contrary, the appellant bank has relied on the said settlement for imposition of penalty on the writ petitioner for gross misconduct. Since the question of enforcement of any right under the bipartite settlement between the appellant bank and their workmen is not the issue to be decided in this appeal, the said reported case is not relevant for the purpose of this appeal.
5. Learned Counsel for the appellant submits that the Enquiry Officer has considered the evidence adduced by the parties during departmental enquiry and has concluded that the charges against the writ petitioner have been proved. The contention of Learned Counsel for the appellant is that the writ court cannot look into the sufficiency of evidence adduced by the management during the departmental enquiry. The further contention on behalf of the appellant is that Learned Single Judge has exercised the power of the writ court like that of appellate forum and has come to the conclusion that the conduct of the writ petitioner falls within the ambit of minor misconduct for which lesser amount of penalty may be imposed, which is not permissible under the law. Mr. Majumdar has relied on the decisions reported in AIR 1963 SC 1723 (State of Andhra Pradesh V. S. Sree Rama Rao), (2006) 6 SCC 187, (Divisional Controller, N.E.K.R.T.C. V. H. Amaresh) and AIR 1998 SC 1964 (M. H. Devendrappa V. The Karnataka State Small Industries Development Corporation) in support of his above contention.
6. Mr. Soumya Majumdar, Learned Counsel for the respondent/writ petitioner contends that the Enquiry Officer did not assign valid reasons for accepting the evidence of the management witness and for discarding the evidence of the writ petitioner to establish the charge of riotous and/or disorderly or indecent behaviour of the writ petitioner. The further contention of Mr. Majumdar is that in the absence of any financial loss of the bank for the act and conduct of the writ petitioner, the Enquiry Officer cannot come to the conclusion that the act and conduct of the writ petitioner is prejudicial to the interest of the bank. Mr. Majumdar has also contended that the Enquiry Officer has not proved the charges separately and individually by giving reasons and as such the same amounts to abdication of duty on the part of the Enquiry Officer. Mr. Majumdar has urged this court to consider that every minor misconduct may be construed as an act prejudicial to the interest of the bank if the views of the Enquiry Officer is accepted as valid. Mr. Majumdar has relied on the decisions reported in AIR 1979 SC 1022 (Union of India V. J. Ahmed), AIR 1985 SC 1121 (Anil Kumar V. Presiding Officer), (2005) 7 SCC 338, (V. Ramana V. A. P. SRTC), (2007) AIR SCW 379, (Government of India V. George Philip) and (2006) 4 SCC 713, (Narinder Mohan Arya V. United India Insurance Company Limited) in support of his above contention.
7. We would like to consider the rival contentions made from the Bar in the light of the decisions cited on behalf of the respective parties in order to come to the conclusion whether Learned Single judge is justified in setting aside the order of imposition of penalty on the writ petitioner and giving direction to the appellant bank for imposition of penalty on the writ petitioner for minor misconduct. It is held by the Supreme Court in paragraph 7 of "State of Andhra Pradesh V. S. Sree Rama Rao" reported in AIR 1963 SC 1723 that "where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 of the Constitution to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or whether the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion or on similar grounds." In the instant case the Enquiry Officer has accepted the evidence of the agent of the bank and discarded the evidence given by the writ petitioner without assigning valid reason in order to come to the conclusion that the writ petitioner abused the agent of the bank with filthy language in his chamber on the date of the incident. Naturally the evidence adduced during the departmental enquiry does not reasonably support the conclusion that the delinquent officer is guilty of the charge of riotous and/or disorderly or indecent behaviour on the premises of the bank. Moreover, the conclusion of the Enquiry Officer that the act of the writ petitioner is prejudicial to the interest of the bank and that the writ petitioner interfered with the bank's work without any purpose is not based on relevant consideration and as such the same is arbitrary and no reasonable and prudent person can arrive at that conclusion on the basis of evidence adduced during the enquiry. In view of our above findings and in view of the proposition of law laid down by the Supreme Court in the case of "State of Andhra Pradesh V. S. Sree Rama Rao" (Supra) we are unable to accept the contention made on behalf of the appellant that the interference of the writ court in the facts and circumstances of the present case is not warranted.
8. In the case of "Divisional Controller, N.E.K.R.T.C. V. H. Amaresh" reported in (2006) 6 SCC 187 it is held by the Supreme Court in paragraph 19 and 20 that once the domestic tribunal held the delinquent officer guilty of the charge on the basis of evidence, it is not open to the court to substitute its subjective opinion in place of the one arrived at by the domestic tribunal. Relying on this reported case, Learned Counsel for the appellant contends that the writ court cannot substitute its opinion about the finding of the Enquiry Officer who held that the charges have been proved against the writ petitioner. This reported case relates to pilferage and misappropriation of funds by the delinquent employee and the said charge was proved in the domestic enquiry, whereas in the instant case the charge against the writ petitioner is of disorderly or indecent behaviour and commission of act prejudicial to the interest of the bank and interference with the work of the bank without any purpose. In the instant case the charges have not been proved on the basis of relevant consideration and proper reasons have not been assigned by the Enquiry Officer for accepting the evidence adduced on behalf of the management and discarding the evidence of the writ petitioner. Since the facts of the reported case are distinguishable from the facts of the instant case, the ratio of the decision reported in (2006) 6 SCC 187 will not be applicable in the facts of the present case.
9. In the case of "M. H. Devendrappa V. The Karnataka State Small Industries Development Corporation"
reported in AIR 1998 SC 1064 the Supreme Court has held in paragraph 22 that the conduct of the delinquent employee was detrimental to the proper functioning of the organization or its internal discipline when the delinquent employee made public statement against the head of the organization on a political issue and has written letter to the Governor by making allegation against the various officers of the organization with whom he had to work. In the instant the writ petitioner is alleged to have abused the agent of the bank in his chamber on the ground that the agent did not take any step to open the branch of the bank during the strike on the previous date. So, the facts of the present case are clearly distinguishable from the facts of the case reported in AIR 1998 SC 1064 and as such the said reported case is also not relevant for the purpose of the appeal.
10. It is laid down by the Supreme Court in paragraph 11 in the case of "Union of India V. J. Ahmed" reported in AIR 1979 SC 1022 that "misconduct" means "misconduct arising from ill-motive, acts of negligence, errors of judgment or innocent mistake, do not constitute such misconduct." In the instant case, the gross misconduct and minor misconduct have been spelt out in clause 19.5 and 19.7 of the memorandum of settlement between the Central Banking Companies and their workmen on 19th October, 1966 by which both the appellant bank and the writ petitioner are governed. So, the definition of misconduct given in Stroud's Judicial Dictionary and quoted in paragraph 11 of the above report (AIR 1985 SC 1121) is not relevant for the purpose of our appeal.
11. In "Anil Kumar V. Presiding Officer" reported in AIR 1985 SC 1121 the Supreme Court has held in paragraph 5 that the order of termination of service of the delinquent employee is liable to be set aside when the Enquiry Officer has not assigned any reason for coming to the conclusion that the charges have been proved. In this reported case the Enquiry Officer stated in the report how the enquiry proceeded at different stages without scanning the evidence and as such the enquiry report was vitiated for non-application or mind. In the instant case the Enquiry Officer has given some reasons, considered some aspects of evidence, but came to the conclusion on the basis of irrelevant consideration and as such the facts of the instant case are distinguishable from the facts of the case reported in AIR 1985 SC 1121 and the ratio of the said reported decision will not be applicable in the facts of the present case.
12. Learned Counsel for the respondent/writ petitioner has relied on paragraph 7 of the case of "V. Ramana V. A.P. S.R.T.C. and Ors." reported in (2005) 7 SCC 338 where following the famous Wednesbury case the Supreme Court has laid down that the power of judicial review of an administrative action can be exercised when the order was contrary to law or relevant factors were not considered or irrelevant factors were considered or the decision was one which no reasonable person could have taken. In the instant case we have already observed that no reasonable and prudent person can come to the conclusion on the basis of evidence adduced in the departmental proceeding that the charge of riotous and/or disorderly or indecent behaviour of the writ petitioner is established or that the action of the writ petitioner is prejudicial to the interest of the bank or that the writ petitioner interfered with the work of the bank without any purpose. Relying on the case of "Narinder Mohan Arya V. United India Insurance Company Limited"
reported in (2006) 4 SCC 713 it is contended on behalf of the respondent/writ petitioner that the writ court can interfere with the findings of the departmental proceeding when the Enquiry Officer has presumed under some circumstances that the charge is established. It is held in paragraph 26 of the said reported case that suspicion or presumption cannot take the place of proof even in a domestic enquiry. We have already observed that proper reasons have not been assigned by the Enquiry Officer for coming to the conclusion that all the charges against the writ petitioner have been proved. What has been established from consideration of the evidence adduced in the departmental enquiry is that the writ petitioner left the place of his work during working hours and went to the chamber of the agent of another branch of the appellant bank. This conduct of the writ petitioner falls within the ambit of minor misconduct laid down in clause 19.7 of the memorandum of settlement between the Central Banking Companies and their workmen dated 19th October, 1966.
13. By quoting the previous decision in the case of "B. C. Chaturvedi V. Union of India" reported in (1995) 6 SCC 749 it is held by the Supreme Court in paragraph 9 of "Government of India and Anr. V. George Phillip"
reported in 2007 AIR SCW 379 that while exercising the power of judicial review the High Court "cannot set aside the punishment altogether or impose some other penalty unless they find that there has been a substantial non- compliance of the rules of procedure or gross violation of the rules of natural justice which has caused prejudice to the employee and has resulted in miscarriage of justice or the punishment is shockingly disproportionate to the gravamen of the charge." In the instant case the order of punishment imposed on the writ petitioner is stoppage of three annual increments with cumulative effect having the effect of postponing future increments. This punishment in our view is shockingly disproportionate to the gravamen of the charge established in the departmental enquiry. It is held by the Supreme Court in paragraph 18 of the decision reported in (1995) 6 SCC 749 (quoted supra) that "if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten litigation, it may itself in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof." In the instant case the writ petitioner is pursuing the litigation for almost 29 years after imposition of penalty on 27th April, 1985. If the matter is remitted to the disciplinary authority for imposition of penalty for minor misconduct as directed by Learned Single Judge, it will prolong the litigation which will cause the injustice to the writ petitioner. In view of the proposition of law laid down in the decision reported in (1995) 6 SCC 749 we are inclined to impose the penalty of stoppage of increment of the writ petitioner for six months as laid down in clause 19.8 (C) of the memorandum of settlement dated 19th October, 1966 in order to shorten the litigation and to give complete and effective justice to the parties. The order dated 25.03.2010 passed by Learned Single Judge in W.P. No.15326(W) of 1997 is modified to the above extent. The appeal is, thus, disposed of. There will be no order as to cost.
Urgent certified Photostat copy of the order, if applied for, be given to the parties on priority basis after compliance with necessary formalities.
(R. K. Bag, J.) I agree.
(Tapan Kumar Dutt, J.)