Allahabad High Court
Vijay Kumar Agarwal vs Chairman And Managing Director Central ... on 26 July, 2021
Author: Yashwant Varma
Bench: Yashwant Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 34 Case :- WRIT - A No. - 43450 of 2014 Petitioner :- Vijay Kumar Agarwal Respondent :- Chairman And Managing Director Central Bank Of India And Anr Counsel for Petitioner :- Ajay Rajendra,S. Tiwari Counsel for Respondent :- Sahab Tiwari,Saurabh Tiwari,SC Hon'ble Yashwant Varma,J.
Heard learned counsel for the parties.
This petition impugns the order of 11 June 2014 imposing the following penalty:-
"Brought down TWO lower stages of scale of pay permanently with effect from the date of judgment and order of the court dtd. 31.7.2013 in terms of clause 6(e) of M.O.S. Dtd. 10.04.2002 on disciplinary action & procedure for workmen and no arrears will be paid for the period of his dismissal."
In order to appreciate the challenge to the aforesaid order of punishment, it would be pertinent to note the following essential facts.
The petitioner was charge-sheeted by the respondent Bank in respect of an incident which is stated to have taken place on 01 February 2005. It was alleged that while he was working as Head Cashier, a packet of Rs.100/- notes was found short. In disciplinary proceeding which came to be initiated and upon culmination thereof, the respondents proceeded to dismiss the petitioner from service. The aforesaid order passed by the disciplinary authority was affirmed in appeal. Those decisions of the respondents were challenged by the petitioner by way of Writ-A No.17804 of 2004.
That petition came to be allowed by a learned Judge of this Court in the following terms: -
"Considered the submission of learned counsel for the parties. There is no dispute that at the time of closing of cash on 1.2.2005 shortage of Rs.10,000/- was found but this is the admitted fact that before the account was closed on the same day the amount was deposited in the presence of the Deputy Manager. As far as the admission of charges are concerned by the petitioner while he has admitted the charges, it has been explained that under pressure and tension, it appears that without counting the packet of 100 denomination notes, the excess amount was paid to the customer. There were three big payments and one of the payment of Rs. 50,000/- was to M/s Kumar Dari Store, the holder of CD A/C No. 316. In his letter addressed to the bank, he has informed that when at about 5.30 P.M. on the same day i.e. 1.2.2005, it was informed by the petitioner regarding shortage of amount then he has checked the amount which was kept in a bag and the excess amount was found. In one packet of Rs. 100 notes, 25 notes of the denomination of Rs. 500 were found and thereafter Rs. 10,000/- was returned to the petitioner. The same was subsequently deposited in the account on the same day and there is no dispute that the amount was deposited and thereafter the account was closed. There is no doubt that without checking the packet, the amount was paid to the customer so there was mistake and negligence on the part of the petitioner who was Head Cashier and while making payment he was expected to be vigilant. The proceeding was initiated on the basis of two main charges as far as the first charge regarding the shortage of Rs. 10,000/- in the cash is concerned, that was deposited on the same day. The second charge is the deposit of Rs. 9,500/- in the account of the petitioner but on that ground no departmental proceeding is provided because no prior permission was required for deposit of the amount in the account. That might be one of the circumstances to prove charge no. 1,. the only charges against the petitioner which was required to be proved. If the charge is proved then on that basis the penalty can be imposed.
As far as the admission of the petitioner regarding the charges are concerned, the language or admission has not been considered properly by the authorities concerned. The charge has not been admitted that he has misappropriated the amount but it was explained by him that due to pressure of work and due to mistake, the excess amount was paid to the customer and as soon as he came to know, it was disclosed to the Deputy Manager. Immediately it was enquired from the customer and thereafter the said amount was deposited on the same day before the cash was closed. In awarding punishment, the nature of misconduct is required to be examined. If there is a misappropriation of the amount by the Cashier then it is a serious charge on which basis the punishment of dismissal can be awarded. However the intention of the petitioner, circumstances, nature of misconduct, previous record of the petitioner are to be considered. In view of the evidence placed in defence. According to learned counsel for the petitioner during period of 28 years of service, there was no complaint, charges or any disciplinary proceeding or punishment against the petitioner. From perusal of the order passed by the disciplinary authority and the appellate authority, it appears that there was no such complaint against the petitioner and there is no denial of aforesaid fact. Hence, the punishment awarded against the petitioner is disproportionate to the charges against him. Hence, the order dated 4.8.2006 passed by the disciplinary authority, respondent no. 3, the order dated 19.12.2006 passed by appellate authority, respondent no. 2 and the charge sheet dated 6.6.2005 (Annexures No. 1, 2 and 3 respectively to the writ petition) are hereby quashed. The disciplinary authority will consider the matter afresh for awarding any lesser punishment apart from dismissal or removal from service and will pass an appropriate order as expeditiously as possible preferably within two months after furnishing of the certified copy of this order."
Pursuant to the order of remand, the impugned order has come to be passed.
Learned counsel for the petitioner has submitted that in light of the provisions made in the Memorandum of Settlement which governs disciplinary proceedings to be adopted by the respondent Bank, the petitioner in light of the nature of allegations made, could not have been imposed the penalty in question and in any case the same would not amount to misconduct. It was further contended that for negligence, a minor punishment could have been imposed upon the petitioner. He additionally submitted that even if the aforesaid submission is not accepted, the respondents while substituting the punishment pursuant to the order of remand, could not have provided that no arrears would be paid for the period during which the order of dismissal operated.
Refuting the aforesaid submissions, Sri Tiwari, learned counsel submits that the Court while allowing the earlier writ petition had remitted the matter only for the purposes of considering the issue of quantum of punishment. In view of the aforesaid, it was contended by Sri Tiwari that it was not open for the petitioner to now contend that the act did not constitute a misconduct or that a major penalty could not have been awarded. Sri Tiwari further submitted that the petitioner has rightly been denied salary for the period during which the order of dismissal operated on the principles of "no work no pay".
Insofar as the question of misconduct and imposition of a major penalty is concerned, the Court finds force in the submission of Sri Tiwari that it is not open to the petitioner either to urge or contend that the actions for which the petitioner was punished would not amount to a misconduct. He has rightly placed emphasis on the directions issued on the earlier petition while contending that the learned Judge proceeded to interfere and set aside the orders passed by the disciplinary authority upon finding that the penalty imposed was disproportionate to the charges levelled and found to be proved. The Court notes that the learned Judge took into consideration the fact that the shortage of cash was on account of a mistake, the absence of any intent to misappropriate, that the shortage was made good the very same day as well the 28 years of unblemished service rendered by the petitioner. It was in the aforesaid backdrop that the learned Judge observed that the disciplinary authority was obliged to consider the matter afresh and award a lesser punishment other than dismissal or removal from service. Viewed in light of the above this Court is of the considered view that the submission of learned counsel for the petitioner that the act did not amount to misconduct is merely an attempt to reopen issues which stand settled. Bearing in mind the terms of the remit as framed by the learned Judge while allowing the earlier petition, it is not open for the petitioner to urge that his actions did not amount to a misconduct.
The sole issue which therefore remained for consideration of the disciplinary authority was with respect to imposition of a penalty other than removal or dismissal from service. It must be noted here that the only restraint that was placed in terms of the decision rendered inter partes was with respect to the imposition of the penalty of removal or dismissal of service. That clearly left it open to the disciplinary authority to impose a major or minor penalty. The punishment of being brought down two stages in the scale of pay is one of the major penalties contemplated under the Settlement. The aforesaid discussion leads the Court to conclude that the terms of remand did not mandate the respondents imposing a minor penalty alone.
The Court then proceeds to consider whether the punishment ultimately imposed was disproportionate. For the purposes of interfering with a punishment imposed by an employer, the Court must be convinced that the penalty shocks its conscience and is wholly unwarranted in the facts of a particular case. Courts, as has been repeatedly held, while exercising their powers of judicial review are not meant to substitute their own opinion for that of the disciplinary authority. They would be justified in interfering with the decision taken by the disciplinary authority only where they come to conclude that the penalty imposed is manifestly or patently arbitrary or unjustified. In the facts of the present case the Court finds that the penalty imposed cannot be said to fall foul of the aforesaid principles nor can it be said that it is not commensurate with the misconduct which came to be established.
The matter however cannot rest here in light of the further recital in the impugned order to the effect that ".....and no arrears will be paid for the period of his dismissal". The Court finds itself unable to sustain the aforesaid observation for the following reasons. It becomes pertinent to note that Sri Tiwari has not been able to establish before the Court any power that may be vested in the respondents either under the statutory rules or the Memorandum of Settlement which may have empowered them to deprive the petitioner from arrears for salary for the period when he stood dismissed. Sri Tiwari has also not drawn the Court's attention to any provisions of the Memorandum of Settlement which may have independently conferred a discretion on the disciplinary authority to pass a separate order with respect to the period during which the dismissal order operated.
That leaves this Court to then consider whether in light of the terms of remit laid down by the learned Judge while allowing the earlier writ petition, the petitioner could have been deprived of arrears of salary for the period during which he stood dismissed. It becomes pertinent to recollect that the learned Judge while allowing the earlier petition had proceeded to quash the orders of the disciplinary and appellate authorities. It is well settled that an order once quashed shall be deemed to have never existed in the eyes of law. The order dismissing the petitioner from service thus would be deemed to have never existed. It for all purposes stood effaced in law. It becomes pertinent to note that Sri Tiwari learned counsel appearing for the respondent did not draw the attention of the Court to any provision in the Settlement empowering the respondents to independently adjudge how the period during which the order of dismissal operated prior to being set aside by an order of a competent court or in appeal or revision was liable to be treated. Learned counsel also did not make any effort to sustain the offending part of the ultimate punishment that was imposed on any other rule or regulation, statutory or otherwise. In the absence of any power shown to be vesting in the respondents to independently adjudge the issue of emoluments payable consequent to an order of dismissal or removal coming to be set aside or modified, the Court finds itself unable to sustain this part of the impugned order.
It becomes relevant to note that upon the matter being remanded all that remained for the respondents to consider was what punishment in substitution was liable to be imposed other than dismissal or removal from service. Once the order of dismissal came to be set-aside by the Court, the only punishment which could have been imposed and was in fact imposed by the respondents themselves was of the petitioner being brought down to two lower stages in the pay scale. The Court has not been shown any power vesting in the respondents to deprive the petitioner of emoluments for the period during which the order of dismissal operated. In view of the aforesaid discussion and to that limited extent, the Court finds itself unable to sustain the decision of the respondents.
The additional submission of Sri Tiwari that on the principle of "no work no pay", the petitioner must be deprived of arrears during the period when the order of dismissal operated, is noticed only to be rejected for the following reasons. The principle of "no work no pay" would apply where a workman or employee on his own chooses not to work or discharge his duties. However, it can have no application to a case where the employer by his own action has prevented the employee from discharging duties. In the present case, the petitioner stood dismissed from service. It is therefore not a case where the petitioner of his volition chose not to discharge duties.
Accordingly, the writ petition is partly allowed. The impugned order insofar as it deprives the petitioner of arrears for the period from which the order of dismissal operated stands set aside. The petitioner shall be entitled for all consequential benefits.
Order Date :- 26.7.2021 Rakesh