Madras High Court
Ms.Agataa Grace Benjamin vs Asst.General Manager & on 8 January, 2020
Equivalent citations: AIRONLINE 2020 MAD 1088
Author: Subramonium Prasad
Bench: Subramonium Prasad
W.P.No.43833 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 08/01/2020
CORAM
THE HONOURABLE MR.JUSTICE SUBRAMONIUM PRASAD
W.P.No.43833 of 2016
Ms.Agataa Grace Benjamin ... Petitioner
Vs
1. Asst.General Manager &
Disciplinary Authority,
Andhra Bank, Zonal Office,
Chennai.
2. Deputy General Manager &
Appellate Authority,
Andhra Bank,
Human Resources Department(R),
Head Office, Hyderabad. ... Respondents
Prayer : Petition filed under Article 226 of the Constitution of India
praying for the issuance of Certioararified Mandamus, calling for the
records from the third respondents and quash the orders of the first
respondent bearing LR.No.680/20/NV/F-1951/80 dated 09.05.2016
and confirmed by the second respondent in his order bearing
L.R.No.666/20/NV/F-1951 dated 09.09.2016 and consequebtly direct
the respondents to reinstate the petitioner in service of the
respondent Bank with full back wages, continuity of service and
other attendant benefits with costs.
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W.P.No.43833 of 2016
For petitioner ... M/s.K.Sankaran
For respondents ... M/s.Aiyar & Dolia
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ORDER
The instant writ petition is one of Certioararified Mandamus to call for the records relating to order dated 09.05.2016, passed by the Assistant General manager, Andhra Bank, Zonal Office bearing LR.No.680/20/NV/F-1951/80, conferred by the Deputy General Manger, Andhra Bank by his order L.R.No.666/20/NV/F-1951 dated 09.09.2016, consequently to reinstate the petitioner.
2. The shorn of details the facts of the case are,
a) The writ petitioner joined in the service of the Bank as Hunam Resources Officer in JMG Scale-I. While working in the currency chest, the writ petitioner was served with a charge memo dated 16.12.2015 on the ground that she has indulged in acts of subordination and behavioural indiscipline.
b) The allegations against the writ petitioner is that on 01.12.2015, when she was given three bundles of Rs.100/- soiled 2/21 http://www.judis.nic.in W.P.No.43833 of 2016 notes for manual sorting, instead of attending the work, she was remained busy in talking over phone and the Branch Manager advised her to stop talking and to start sorting of soiled notes. She replied as "I will do what I can do and you should not while I am talking on phone".
c) It is stated that she abused the Branch Manager by uttering as "useless fellow". The charge memo also states that she has never been following the guidelines of the Bank. It is also stated in the charge memo that she is discourteous, arrogant and impolite to the colleagues, superiors and despite warranting and advise to mean as if she has not mend her behaviour and continued her misconduct.
The charge memo reads as under:-
“Reg: Charge sheet in terms of Regulation 3 (1) & (2) & 24 of ABOE (Conduct) Regulations, 1981 **** It is alleged against you that you have indulged in certain acts of serious insubordination and behavioral indiscipline while working at Currency Chest, Chennai and Zonal Office. The details are mentioned hereunder:
You are on deputation to Currency Chest, Chennai since 18-02-2015. On 01-12-2015, you were given three bundles of Rs.1OO/- soiled notes for manual sorting. As you are not attending the entrusted duty and continuing to talk over phone, die Branch Manager has personally advised you to stop talking and sort the soiled notes.3/21
http://www.judis.nic.in W.P.No.43833 of 2016 When the Branch Manager enquired you about the completion of the entrusted work, you have told him “1 will do what I can do and you should not ask why I am talking on phone” and you abused the Branch Manager by uttering “useless fellow”. Finally, you have completed sorting of one bundle only.
Currency Chest has to function within the guidelines of Head Office and RBI with regard to maintenance of soiled notes and other matters. As an officer at Currency Chest, Chennai, you are supposed to follow the guidelines of Bank / RBI while discharging the duties. But, inspite of frequent advice and counseling by the Branch Head, you did not mend your ways and continuing to be adamant and riot following the instructions.
Further, you are in the habit of leaving the office early without obtaining permission from Branch Head.
You are discourteous, arrogant and impolite towards the colleagues, superiors and earlier when you misbehaved with the Chief Manager (P&D), you were called for explanation for the same. As Zonal Office received complaints from various quarters like Z.O. staff, Branch Managers regarding your impolite and arrogant behavior, you were shifted to other departments in Zonal Office. But, you did not mend yourself and continuing to be arrogant and impolite towards colleagues, superiors etc. As you were found to be unsuitable at Zonal Office and in order to give you an opportunity to mend yourself, you were deputed to Currency Chest, Chennai from 18-02- 2015 onwards. But, you continued to be adamant, arrogant and impolite towards the superiors and colleagues.
Your above acts of insubordination and behavioral misconduct are unbecoming of an officer. This indicates that you have failed to maintain discipline, show courtesy towards your superiors and failed to discharge your duties with devotion and diligence and thereby 4/21 http://www.judis.nic.in W.P.No.43833 of 2016 committed acts of misconduct in terms of Reg 3(1), 3(2) and Reg 24 of ABOE (Conduct) Regulations, 1981.
Your reply should reach the undersigned within 10 days from the date of receipt of the letter, failing which, it would be construed that you have no explanation to offer and action as deemed fit and proper will be initiated against you without further reference to you in this regard."
3. The writ petitioner gave a response on 26.12.2015 denying the charges. It is stated by the petitioner that the superior officer namely Assistant General Manager was enimical towards her. It is stated in the reply she might have sounded "firm" but it is being construed as adamant/arrogant. Enquiry was initiated against the writ petitioner and the Senior Manager, HRD was appointed as an Enquiry Officer. The writ petitioner produced DEX-8 to contend that she has filed a complaint against the Senior Branch Manager alleging indecent /inappropriate behaviour towards her. According to the writ petitioner, the allegations against her are only a counter blast.
4. The Enquiry Officer by an order dated 24.02.2011 after examining all the documents and depositions came to a conclusion that charges have been proved against the petitioner. The 5/21 http://www.judis.nic.in W.P.No.43833 of 2016 Disciplinary Authority / respondent No.1 herein concurred the findings of the Enquiry Officer and imposed a penalty removal of service. The Appellate Authority/2nd respondent herein has dimissed the appeal. Hence the instant writ petition has been filed.
5. The writ petitioner in the instant writ petition contend that the list of witnesses and documents had not been given to the petitioner and therefore the enquiry was not conducted in a fair manner. The writ petitioner relies on Rule 6(i)(ii)(iii) of the Andhra Bank Officer Employees, (Discipline and Appeal) Regulation,1981, which reads as under:-
"i. No order imposing any of the major penalties specified in clauses (f),(g),(h),(i) and (j) of regulation 4 shall be made except after an inquiry is held in accordance with the regulation.
ii. Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself inquire into or appoint any other person who is, or has been, a public servant (hereinafter referred to as the inquiring authority)to inquire into the truth thereof.
Explanation: When the Disciplinary Authority itself holds the inquiry any reference in sub-regulation (8) to sub-6/21
http://www.judis.nic.in W.P.No.43833 of 2016 regulation (21) to the inquiring authority shall be construed as a reference to Disciplinary Authority. iii. Where it is proposed to hold an enquiry, the Disciplinary Authority shall, frame definite and distinct charges on the basis of the allegations against the Officer Employee and the Articles of charge, together with the statement of the allegations, list of documents relied on along with copy of such documents and list of witnesses along with copy of statement of witnesses, if any, on which they are based, shall be communicated in writing to the Officer Employee, who shall be required to submit, within such time, as may be specified by the Disciplinary Authority (not exceeding 15 days), or within such extended time as may be granted by the said authority, a written statement of his defence;
Provided that wherever it is not possible to furnish the copies of documents, Disciplinary Authority, shall allow the officer employee inspection of such documents within a time specified in this behalf;"
6. It is further contend that the charge memo specifically states that the incident took place on 01.12.2015, whereas the documents shows that the instance took place on 13.11.2015. The learned counsel for the petitioner would contend in view of the discrepancy, the entire charge memo would fail. It is also submitted by the learned counsel for the petitioner that the charges are 7/21 http://www.judis.nic.in W.P.No.43833 of 2016 extremely vague in nature. She relied on the charge memo dated 16.12.2015 to say that for the allegations arrogant behaviour, indiscipline, etc., no specific dates have been given and therefore, the charge memo should be quashed only on the ground that it is completely vague without material particulars. It is also stated that the Branch Manager, whom the writ petitioner is supposed to have abused himself has initiated an enquiry and this is against the principle of natural justice. The writ petitioner states that the complainant himself cannot be the officer who initiates the disciplinary proceedings.
7. Per Contra, the learned counsel for the respondent would state that all the documents were given to the petitioner on the very first day of the hearing. The learned counsel for the respondents invited the attention of this Court that on the proceedings dated 16.12.2015, wherein it is recorded that the presenting officer had given all the documents to the charted officer. the learned counsel for the respondent also draw the attention of this Court to the various emails which were given to the writ petitioner stating that the petitioner is guilty of being arrogant and indiscipline. The type-8/21
http://www.judis.nic.in W.P.No.43833 of 2016 set of papers produced by the respondent which is a part of the enquiry proceeding would show the complaints against the writ petitioner and the various memos issued to the writ petitioner on various dates, demonstrating the repeated acts of insubordination and indiscipline on the part of the petitioner. The petitioner admitted that she did utter the words "useless fellow".
8. Heard the learned counsel for the parties and perused the documents.
9. The various emails produced by the respondents which has been marked MEX-1 to MEX-13 would show that the petitioner has been discourteous to the staff. She has not been diligent in the work and she has been reluctant to carry out instructions given to her. The contentions of the writ petitioner that charges are vague cannot be sustained. The charges only summarizes that she has been guilty of insubordination and executed rude behaviour towards her fellow employees. These allegations has been substantiated by MEX-1 to MEX-13.
10. A perusal of the charge memo and the evidence would 9/21 http://www.judis.nic.in W.P.No.43833 of 2016 show that the date given in the charge sheet as 01.12.2015 is a mere typographical error. The instance took place only on 13.11.2015 which can be seen from the cross examination off various witnesses. The witnesses have also stating about the rude behaviour of the writ petitioner.
11. The learned counsel for the writ petitioner relies on the judgment of the Hon'ble Supreme Court of India in the case of Ved Prakash Gupta Vs. Delton Cable India (P) Ltd., (1984) 2 SCC 569, has held that merely using intemperate, abusive language, is not a serious charge and therefore punishment of termination of service cannot be imposed to this effect. The learned counsel for the petitioner also relies on the judgment of the Hon'ble Supreme Court of India in the case of Reserve Bank of India & Another Vs. C.L.Toora and Ors., (2004) 4 SCC 657.
12. A perusal of the above discussion would show that;
a) All documents which are relied by the respondents were served to the petitioner.
b) Even though the charge memo does not contain specific 10/21 http://www.judis.nic.in W.P.No.43833 of 2016 instances of acts of indiscipline and insubordination, the supporting documents supplied to the petitioner highlights the various instances wherein there have been complaints against the petitioner regarding the insubordination, use of foul language and indiscipline.
c) The fact that the petitioner had use the word "useless fellow" against the Branch Manager and himself initiated disciplinary proceedings does not cause any prejudice to the petitioner in as much as the Enquiry Officer was an entirely different officer. The Disciplinary Authority and the Appellate Authority are also the officers senior to the Branch Manager, thereby no prejudice has been caused to the petitioner.
13. The Hon'ble Supreme Court has always held that the Writ Court while exercising writ jurisdiction cannot sit as an Appellate Authority and reassess the evidences. The Hon'ble Supreme Court in the case of S.Sreesanth Vs. Board of Control for Cricket in India & Ors., (2019) 4 SCC 660, has observed as under:-
"35.The Disciplinary Committee, under the relevant Anti-Corruption Code, is primarily entrusted with the duty, after considering the reply of the show-cause notice and hearing the appellant, it was entitled to give a decision on 11/21 http://www.judis.nic.in W.P.No.43833 of 2016 various allegations made against the appellant. The disciplinary inquiry conducted by the Disciplinary Committee of BCCI is akin to disciplinary inquiry conducted against a public servant under the relevant statutory rules except few distinctions which we shall notice later.
36.This Court has time and again considered the scope of judicial review in reference to departmental inquiry conducted against the public servant. This Court inState of A.P.v.Chitra Venkata Rao[State of A.P.v.Chitra Venkata Rao, (1975) 2 SCC 557 : 1975 SCC (L&S) 349] , had laid down the parameters of judicial review. In para 21, the following has been laid down: (SCC pp. 561-62) “21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court inState of A.P.v.S. Sree Rama Rao[State of A.P.v.S. Sree Rama Rao, AIR 1963 SC 1723] . First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry, the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal 12/21 http://www.judis.nic.in W.P.No.43833 of 2016 under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may 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 where 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. The departmental authorities 13/21 http://www.judis.nic.in W.P.No.43833 of 2016 are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.”
37.This Court further held that jurisdiction of the High Court under Article 226 is a supervisory jurisdiction and the High Court does not exercise a jurisdiction of an appellate court. The findings of the fact reached by a tribunal as result of the appreciation of the evidence cannot be questioned in the writ proceedings. In para 23 of the judgment, the following has been laid down: (Chitra Venkata case[State of A.P.v.Chitra Venkata Rao, (1975) 2 SCC 557 : 1975 SCC (L&S) 349] , SCC p. 563) “23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal 14/21 http://www.judis.nic.in W.P.No.43833 of 2016 had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan [Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477] .”
38.This Court again inUnion of Indiav.P. Gunasekaran[Union of Indiav.P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554] , reiterated the same principles regarding judicial review of disciplinary proceedings. In paras 12 and 13, the following has been laid down: (SCC pp. 616-17) “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary 15/21 http://www.judis.nic.in W.P.No.43833 of 2016 authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;16/21
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(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
39.To the same effect is the decision of this Court inCISFv.Abrar Ali[CISFv.Abrar Ali, (2017) 4 SCC 507 : (2018) 1 SCC (L&S) 310] . In paras 13 and 14, the following has been laid down: (SCC pp. 512-13) “13. Contrary to findings of the disciplinary authority, the High Court [Abrar Aliv.CISF, 2014 SCC OnLine Del 4064 : (2014) 144 DRJ 446] accepted the version of the respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the 17/21 http://www.judis.nic.in W.P.No.43833 of 2016 disciplinary authority that the unit had better medical facilities which could have been availed by the respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to reappreciation of evidence. It is settled law that reappreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India.
14. InState Bank of Bikaner & Jaipurv.Nemi Chand Nalwaya[State Bank of Bikaner & Jaipurv.Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L&S) 721] , this Court held as follows: (SCC p. 587, para 7) ‘7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly 18/21 http://www.judis.nic.in W.P.No.43833 of 2016 perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. (VideB.C. Chaturvediv.Union of India[B.C. Chaturvediv.Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] ,Union of Indiav.G. Ganayutham[Union of Indiav.G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806] ,Bank of Indiav.Degala Suryanarayana[Bank of Indiav.Degala Suryanarayana, (1999) 5 SCC 762 :
1999 SCC (L&S) 1036] andHigh Court of
Bombayv.Shashikant S. Patil[High Court of
Bombayv.Shashikant S. Patil, (2000) 1 SCC 416 :
2000 SCC (L&S) 144] .)’” A perusal of the above said judgment shows that Writ Court is not an appellate Court and should not substitute its conclusion to the one arrived at by the authorities merely because another conclusion is possible. Writ Court must interfere only when the findings of the 19/21 http://www.judis.nic.in W.P.No.43833 of 2016 Disciplinary Authority is perverse or completely against law. Nothing has been brought out to show that the findings are perverse.
14. In view of the above, this Court is not inclined to exercise its jurisdiction under Article 226 of the Constitution of India, resultantly, the writ petition is dismissed. No Costs.
08/01/2020 Index : Yes / No Internet : Yes / No Speaking/Non-speaking order Pkn.
SUBRAMONIUM PRASAD, J Pkn.
To
1. Asst.General Manager & Disciplinary Authority, Andhra Bank, Zonal Office, Chennai.
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2. Deputy General Manager & Appellate Authority, Andhra Bank, Human Resources Department(R), Head Office, Hyderabad.
W.P.No.43833 of 2016
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