Calcutta High Court
Shib Prasad Biswas vs State Bank Of India & Ors on 9 November, 2009
Equivalent citations: AIRONLINE 2009 CAL 1
Author: Dipankar Datta
Bench: Dipankar Datta
W.P. No. 2371 of 2003
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
Shib Prasad Biswas
...Petitioner
Vs.
State Bank of India & ors.
...Respondents
For the petitioner : Mr. Samrat Sen
Mr. P.C. Pal Choudhury
For the respondents : Mr. Soumya Majumdar
Mr. S.M. Obaidullah
Hearing concluded on : September 8, 2009
Judgment on : November 9, 2009.
The petitioner is an employee of the State Bank of India (hereafter the Bank). The Bank had initiated process for recruitment of non-clerical subordinate staff, vide notice dated October 29, 1976. The post of Messenger was one of several posts that was sought to be filled up. Inter alia, one of the qualifications that a candidate aspiring for appointment to the post was "Only those who have passed the Class-VIII examination, but are non-matriculate, and are conversant with Bengali language are eligible". Despite having passed the Higher Secondary examination in 1975, the petitioner offered his candidature for appointment to the post of Messenger suppressing such fact. He was selected and ultimately appointed on August 4, 1980.
For nearly twenty years the petitioner served the Bank without any blemish. However, on May 18, 2000, he was served with a charge-sheet. It was alleged therein that he had entered the Bank's service declaring that he was Class-VIII passed while, in fact, he had passed the Higher Secondary and B.Com. examinations in 1975 and 1978 respectively. He was thus charged with concealment of material fact and furnishing false declaration while entering service amounting to 'gross misconduct' as defined in paragraph 521(4)(j) of the Sastry Award which, if proved, would attract provisions, penal in nature, contained in paragraph 521(5) thereof. The disciplinary authority reserved his right to amend, modify, alter and/or add to the charge-sheet if the situation warranted it. The charge-sheet was amended on August 21, 2001 by charging the petitioner with commission of gross misconduct as defined in clause (n) of paragraph 521(4) of the Sastry Award.
The petitioner had in the meantime, on receipt of the charge-sheet, replied on June 21, 2000 as follows:
"Reply to Chargesheet No.Per/SF-3/214 dated 18th May 2000 At the outset, I offer my most sincere apologies for having concealed the fact that I had cleared the Higher Secondary Examination in 1975. I could not, however, clear the B.Com. Examination in 1978 as has been mentioned in the Chargesheet.
2. The fact that I concealed my actual educational qualification is indefensible. However, I would like to explain the circumstances under which I did so.
3. My father had retired in 1976 and was feeding five mouths with his Pension of a paltry Rs. 200/- per month. It is needless to mention that his pension was vastly insufficient to maintain our family consisting of five members viz. my mother, two younger sisters, my father and myself. We were at the brink of starvation. On top of the immediate problems, I had a couple of unmarried sisters.
4. In 1980, when I secured this job I was working as a domestic help with a wealthy family in Gobardanga, North 24 Parganas. It was on their advice that I applied for this employment with the Bank.
5. In such a desperate situation, this job was available, but I had to conceal of my actual educational qualification in order to secure it. Since, I was downplaying my actual qualification, I chose to do so, though admittedly it was an error. You will definitely appreciate that at that point of time, I did not have a choice. Please consider that this error had been committed under unrelenting compulsion.
6. At this juncture, I have nothing to hide or defend, I only seek your mercy. I would request you to kindly consider the situation under which I committed the alleged act. On a broader perspective, any error lies in the fact that I chose to flight poverty with whatsoever means I had.
7. Once again, I offer my most sincere apologies for it, and would request you to appreciate the fact that when I did it, I had no option."
An enquiry followed wherein the petitioner duly participated. The enquiry officer returned a finding that the petitioner was guilty of the charge levelled against him. The report of the enquiry officer was forwarded to the petitioner by the disciplinary authority seeking his comments vide letter dated November 17, 2003. Close on its heels, the disciplinary authority while agreeing with the finding of the enquiry officer proposed to inflict on him the punishment of "bringing down to two stages lower in the scale" of his pay. Accordingly, a second show cause notice dated November 20, 2003 was issued by the disciplinary authority asking for a response within fifteen days.
In this writ petition affirmed on December 10, 2003, the petitioner challenged the charge sheet dated May 18, 2000, since amended on August 21, 2001, and the said second show cause notice. While admitting the writ petition on December 23, 2003, a learned Judge of this Court was pleased to call for affidavits. Liberty was granted to the disciplinary authority of the petitioner to conclude the proceeding by giving appropriate opportunity of hearing to him. However, it was observed that punishment imposed on him, if any, would abide by the result of the writ petition. So far as conferment of benefits of Career Advancement Scheme is concerned (though not specifically prayed for in the writ petition), the Bank was directed to take a decision thereon within a week from date of passing of final order in the proceeding.
The petitioner replied to the second show cause notice on December 30, 2003. Upon consideration thereof and in view of the fact that the action of the petitioner "did not cause any kind of loss to the Bank", the disciplinary authority took a lenient view and ordered on January 9, 2004 that ends of justice would be adequately met if the "punishment of bringing down by two stages lower in the scale of his pay" is inflicted on him.
Regarding Career Advancement Scheme benefits, the petitioner was informed vide letter dated January 14, 2004 that since he had concealed his higher educational qualification at the time of appointment he is debarred from promotion in view of the extant guidelines of the Bank. However, he would be entitled to get in-cadre promotion under Career Progression Scheme as per extant rules and procedures after expiry of the stipulated period from the date of punishment imposed on him.
The final order dated January 9, 2004 and the aforesaid letter have been annexed to the affidavit-in-reply filed by the petitioner.
Though the petitioner has not amended the writ petition suitably by subjecting the final order of punishment to challenge, I do not propose to dismiss it on such technical ground and, accordingly, shall proceed to consider his grievance on merit.
Appearing for the petitioner, Mr. Samrat Sen, learned counsel contended that having regard to the terms of the Sastry Award, since modified, which governs the rights of the parties, the petitioner had not committed gross misconduct and, therefore, ought not to have been punished. According to him, the offences that would amount to 'gross misconduct' have been exhaustively defined in paragraph 521(4) of the Sastry Award wherein securing service in the Bank by concealment of facts is not an enumerated misconduct and in view of the decisions of the Apex Court in Glaxo Laboratories (I) Ltd. vs. Presiding Officer, Labour Court, Meerut & ors., reported in (1984) 1 SCC 1, A.L. Kalra vs. Project & Equipment Corporation of India Ltd, reported in AIR 1984 SC 1361, and Shri Rasiklal Vaghajibhai Patel vs. Ahmedabad Municipal Corporation, reported in (1985) 2 SCC 35, it is not open to the Bank to fish out some conduct as misconduct and to punish an employee for the same. He also cited the decision in Regional Manager & Disciplinary Authority, State Bank of India, Hyderabad and ano. vs. S. Mohammed Gaffar, reported in (2002) 7 SCC 168, wherein the Apex Court had the occasion to consider paragraph 521(4) of the Sastry Award. Relying thereon, he submitted that the expression 'gross misconduct' is not to be viewed or considered in the abstract or as it appears or appeals to the perception of the disciplinary authority. Since the service conditions are governed by the conduct rules under the Sastry Award [paragraph 521(4) in particular], which in unmistakable terms has laid down as to what the expression 'gross misconduct' would mean with precision and accuracy by enumerating various instances of commission and omission on the part of an employee, the disciplinary authority was obliged to construe the expression 'gross misconduct' in the context of the definition with particular reference to the various enumerated acts and omissions on the part of an employee and an ex post facto interpretation of the incident prior to appointment of the petitioner ought not to have been camouflaged as 'gross misconduct'.
He further contended that the petitioner was initially charged with commission of misconduct as defined in paragraph 521(4)(j), viz. "doing any act prejudicial to the interest of the bank, or gross negligence or negligence involving or likely to involve the bank in serious loss" and subsequently as defined in clause (n), viz. "knowingly making a false statement in any document pertaining to or in connection with his employment in the bank". Clause (n) having been inserted by way of amendment in September, 1984, he urged that it could only apply prospectively and could not have been invoked in respect of an incident of mid-1980.
Next, he demonstrated the infirmities in the proceedings, viz. the impropriety on the part of the enquiry officer as well as the disciplinary authority in not deciding the objection raised by him in respect of validity of the proceeding, non-grant of opportunity to reply to the amended charge sheet dated August 21, 2001 and the insufficient time offered to him to reply to the report of the enquiry officer, thereby offending principles of natural justice, and non- consideration of the petitioner's representation submitted in response to the second show cause notice.
Finally, he relied on an unreported Division Bench decision of this Court dated March 12, 1993 on F.M.A.T. No. 607 of 1993 (Bardhaman Gramin Bank vs. Sri Chinmoy Mitra) wherein it was held as follows:
"We are in agreement with the observations of the learned trial Judge that in these days of high economic stringency there are persons having very high educational qualifications applying for the post which may not be otherwise termed to be suitable or befitting such an educational status. But various endeavours are being made to obtain a decent and honest living in these hard days. True there is a mis- statement but can this mis-statement be taken such so as to disentitle the petitioner of an employment opportunity ? It is not that the petitioner is under qualified but the petitioner is over qualified. It is not that there is any gross suppression of fact resulting in the total alteration of the situation. The petitioner degraded himself down to the level of other candidates of class VIII standard to obtain an employment. It is a pity that our society cannot give two square meals a day to the weaker section of the people. But in the event one opts for slight variation by not disclosing full educational qualification just to have two square meals a day in our view, the law court should not be justified to deprive him of the employment opportunity. Employment opportunity in these days in our country is rare. The petitioner has been able to obtain such an opportunity. The petitioner did not feel shy even to accept the post of Messenger-cum-Sweeper which is meant for illiterate persons and that ought not to be denounced by the court of law."
He, accordingly, prayed for appropriate writ to quash the proceeding as well as the order imposing penalty.
Mr. Majumdar, learned counsel for the Bank contended that as an employer the Bank has an inherent right to take action against the petitioner for making a fraudulent representation. He relied on the decision of the Apex Court in Kerala Solvent Extractions Ltd. v. A. Unnikrishnan, reported in 1994 II LLJ 888, to contend that in similar circumstances, the decision of the Labour Court, since affirmed by the High Court, was reversed and the decision of the employer was upheld.
Paragraph 23 of the decision of the Apex Court in Mahendra Singh Dhantwal v. Hindustan Motors Ltd., reported in (1976) 4 SCC 606, was next relied on by him. The passage relied on by him reads as follows:
"23. Standing orders of a company only describe certain cases of misconduct and the same cannot be exhaustive of all the species of misconduct which a workman may commit. Even though a given conduct may not come within the specific terms of misconduct described in the standing orders, it may still be a misconduct in the special facts of a case, which it may not be possible to condone and for which the employer may take appropriate action. Ordinarily, the standing orders may limit the concept but not invariably so."
He further cited the decision in W.M. Agnani vs. Badri Das, reported in 1963(1) LLJ 684, and relying thereon contended that even violation of an implied obligation may amount to misconduct.
So far as the decisions in Glaxo (supra), A.L. Kalra (supra) and Rasiklal (supra) are concerned, he contended that the same had been noticed in a subsequent decision of the Apex Court and while it has been held that Kalra (supra) does not lay down any inflexible rule, Glaxo (supra) was rendered in the fact situation obtaining therein [Bharat Petroleum Corporation Ltd. vs. T.K. Raju, reported in (2006) 3 SCC 143].
Based on the aforesaid submissions, he prayed for dismissal of the writ petition. I have considered the rival claims and am of the opinion that the only question that arises for determination is whether the Bank, on facts and in the circumstances, was justified in taking action against the petitioner or not.
Origin of service is contractual, for, there is an offer and acceptance leading to appointment. So far as Government service is concerned, a Government servant once appointed to a post or office after acceptance of the offer of appointment acquires a status and his rights and obligations are no longer determined by consent of the parties but by statute or statutory rules. The same principle is also applicable to posts and offices not directly under the Government i.e. to services of members of any public service governed by statutory rules and orders. Service in the employment of the Bank no doubt constitutes public service. However, formation of the contract or the relationship between the parties may be vitiated by mistake, fraud, misrepresentation, etc. and an appointment in public service may be treated invalid due to the presence of any such vitiating factor. An enquiry may legitimately be initiated in this behalf and that would be different from a domestic enquiry initiated for the purpose of exercising disciplinary control over an employee. Based on my above understanding of the legal position, I shall proceed to decide the contentious issue that has been raised in this writ petition.
I am satisfied that the disciplinary proceeding conducted against the petitioner is not one which is legally unquestionable. Paragraph 521(4) of the Sastry Award defines exhaustively which of the acts would constitute 'gross misconduct'. I quite agree with Mr. Sen that the decision in Mahendra Singh Dhantwal (supra) would not apply in this case since the concept of 'gross misconduct' in paragraph 521(4) has been limited by providing that "gross misconduct shall be meant any of the acts and omissions on the part of an employee" as mentioned thereunder. The situation may have been otherwise if it included commission of an act in violation of implied obligation or if it were merely illustrative. True it is that the decisions in Glaxo (supra) and Kalra (supra) have been distinguished in T.K. Raju (supra) but my attention has not been drawn to any decision of the Apex Court holding that the said decisions do not lay down the correct law. The ratio laid down therein would thus apply in a case of the present nature where 'gross misconduct' has been defined exhaustively. As held in S. Mohammed Gaffar (supra), 'gross misconduct' ought not to be viewed or considered in the abstract or as it appears or appeals to the perception of the disciplinary authority or the Court. The expression 'gross misconduct' has to be construed in the context of the definition with particular reference to the various enumerated acts and omissions on the part of an employee. The offence with which the petitioner was charged was not an enumerated misconduct at the time of his appointment but was included in paragraph 521(4) four years later. By virtue of the amendment/modification which was not given retrospective effect, an act that was not classified as 'gross misconduct' on the date of its commission could not have been brought within its purview. Therefore, the petitioner ought not to have been charged and punished for committing 'gross misconduct' as defined in paragraph 521(4)(n) by the Bank in exercise of the employer's right of disciplinary control in terms of paragraph 521(5) of the Sastry Award.
The decision in Agnani (supra) does not lend any assistance to Mr. Majumdar. It was held there that in the absence of standing orders, it would be open to the employer to consider reasonably what conduct can be properly treated as misconduct and it would be difficult to lay down any general rule in respect of this problem. What is misconduct will naturally depend upon the circumstances of each case. When standing orders are framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with common sense. In the present case 'gross misconduct' has been defined and, therefore, his submission is unacceptable.
However, despite the aforesaid finding, I am of the considered opinion that the Bank's action in punishing the petitioner need not be invalidated for, in the ultimate analysis, he does not appear to have been wronged.
I may usefully refer to the decision in State of Maharashtra v. Budhikota Subbarao (Dr), reported in (1993) 2 SCC 567, wherein 'fraud' has been explained. It was observed:
"3. ***'Fraud' is false representation by one who is aware that it was untrue with an intention to mislead the other who may act upon it to his prejudice and to the advantage of the representor. It is defined in Oxford Dictionary as, 'using of false representations to obtain an unjust advantage or to injure the rights or interests of another'. In Webster it is defined as, 'deception in order to gain by another's loss; craft; trickery; guile; any artifice or deception practiced to cheat, deceive, or circumvent another to his injury'. It has been defined statutorily in Section 17 of the Contract Act as including certain acts committed with connivance or with intent to deceive another. In Administrative Law it has been extended to failure to disclose all relevant and material facts which one has a positive duty to disclose. It is thus understood as deliberate act or omission to mislead the other to gain undue advantage. 'It consists of some deceitful practice or wilful device resorted to with intent to deprive another of his right or in some manner to do him an injury' (Black's Law Dictionary). Effect of fraud on any proceeding, or transaction is that it becomes nullity. Even the most solemn proceedings stand vitiated if they are actuated by fraud.***"
That the petitioner made a fraudulent representation prior to securing service is evident from his reply to the charge sheet. It is a fairly settled position in law that admission is the best piece of evidence against the person making the admission; however, it is open to the person making the admission to show why the admission is not to be acted upon. In the domestic enquiry, the petitioner did raise a plea that his admission should not be acted upon, but failed to advance any reason in support thereof worthy of acceptance. I find from the materials on record that PEX-1 was a certificate issued by the Headmaster of Gobardanga Khantura High School stating that the petitioner had passed the Higher Secondary examination in 1975. The petitioner had not disputed the genuineness of PEX-1. That was not the certificate which the petitioner had produced alongwith his application for appointment; instead he had produced a Transfer Certificate issued by Media Bastuhara High School based whereon the enquiry officer returned a finding that the petitioner indeed had downplayed his qualification. Irrespective of the circumstances that compelled the petitioner to suppress the fact that he had passed the Higher Secondary examination in 1975, the basic foundational fact that he was guilty of suppressio veri and suggestio falsi can be said to have been established.
Even though Mr. Sen's argument on the point that the petitioner had not committed 'gross misconduct' punishable in terms of provisions contained in the Sastry Award and thus no punishment could be imposed thereunder is acceptable, that would not render the fact-finding enquiry conducted by the Bank superfluous. The finding arrived at by the enquiry officer has revealed the petitioner's fraudulent activity. I do not see any reason as to why the finding arrived at in such enquiry may not be utilized by the Bank for a purpose other than exercising disciplinary control, viz. to determine the contract. Since fraud has the effect of vitiating the most solemn of transactions and the petitioner secured appointment by playing fraud on the administration, I hold that the Bank would not have been unjustified in rescinding the contract of service since the petitioner by his act intended to deceive the Bank and succeeded in his pursuit. The petitioner must consider himself fortunate that the Bank has retained him in service. Termination of his service in the given facts on the ground that the contract of service is void and the appointment itself is a nullity would not have been wrongful or disproportionate.
Even otherwise, as a Court of Equity, I am not inclined to grant any relief to the petitioner. Procedural defects in the process leading to the punishment imposed on him, as contended by Mr. Sen, cannot override considerations of dispensing substantive justice to the parties. The jurisdiction of a Court of Writ under Article 226 of the Constitution is not intended to facilitate avoidance of obligations voluntarily incurred. Anyone who is subjected to a legal wrong and considers himself aggrieved may invoke the Writ Court's jurisdiction but it is for the Writ Court not to come to the aid and assistance of those who indulge in fraud. Although the petitioner was in financial distress when he applied for appointment, I cannot overlook that there may have been thousand others equally qualified or more qualified than the petitioner and in even more distressed condition than him who may not have applied at all noticing the eligibility criteria. Recruiting candidates in deviation of the notified norms, without power of relaxation, is a fraud on the public. It is settled law that the power under Article 226 is discretionary and that it will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. The petitioner must realize that ultimately dishonesty does not pay.
The unreported decision cited by Mr. Sen is no longer relevant in view of acceptance of the arguments advanced by learned counsel for the appellant (in a case similar to the one at hand) by the Apex Court in Kerala Solvent (supra). The relevant passages are extracted below:
"9. Shri Vaidyanathan, learned Senior Counsel for the appellant, submitted, in our opinion not without justification, that the Labour Court's reasoning bordered on perversity and such unreasoned, undue liberalism and misplaced sympathy would subvert all discipline in the administration. He stated that the management will have no answer to the claims of similarly disqualified candidates which might have come to be rejected. Those who stated the truth would be said to be at a disadvantage and those who suppressed it stood to gain. He further submitted that this laxity of judicial reasoning will imperceptibly introduce slackness and unpredictability in the legal process and, in the final analysis, corrode legitimacy of the judicial process.
10. We are inclined to agree with these submissions. In recent times, there is an increasing evidence of this, perhaps well meant but wholly unsustainable tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the courts must be seen to be logical and tenable within the framework of the law and should not incur and justify the criticism that the jurisdiction of the courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability."
I do not consider it proper to interfere with the order dated January 9, 2004 in exercise of writ powers. The writ petition stands dismissed without costs.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the parties as early as possible.
(DIPANKAR DATTA, J.)