Rajasthan High Court - Jaipur
Ram Gopal Kumawat vs Uco Bank And Ors on 25 September, 2019
Bench: Mohammad Rafiq, Narendra Singh Dhaddha
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Special Appeal (Writ) No. 324/2016
In
S.B. Civil Review Petition No. 373/2015
In
S.B. Civil Writ Petition No. 1429/1998
Ram Gopal Kumawat S/o Boduram, Caste Kumawat, Peon,
United Commercial Bank, Station Road, Ajmer, and resident of
A.M.C. No. 5/45, Ganj, Ajmer
----Appellant
Versus
1. United Commercial Bank, Through The Divisional
Manager, Divisional Office, Commercial Centre, Khailand
Market, Ajmer
2. Regional Manager, United Commercial Bank, Regional
Office, Khailand Market, Ajmer
----Respondents
For Appellant(s) : Mr. A.K. Bhandari, Senior Counsel assisted by Mr. Vaibhav Bhargava.
For Respondent(s) : Mr. C.P. Sharma.
HON'BLE THE ACTING CHIEF JUSTICE HON'BLE MR. JUSTICE NARENDRA SINGH DHADDHA Judgment REPORTABLE 25/09/2019 (Per Hon'ble Mr. Justice Mohammad Rafiq) This appeal has been filed by Ram Gopal Kumawat, challenging judgment dated 26.10.2015 as also order dated 12.01.2016. Vide judgment dated 26.10.2015, writ petition filed by the appellant was dismissed by the learned Single Judge of this Court. Vide order dated 12.01.016, review petition filed by the appellant against the aforesaid judgment was dismissed by the learned Single Judge.
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(2 of 32) [SAW-324/2016] The appellant was appointed as Class IV Employee (Daftari-cum-peon) in respondent-United Commercial Bank at Ajmer Branch on 20.01.1967. One Heera Lal Kumawat, elder brother of Om Prakash (husband of appellant's sister Mrs. Sushila), opened a recurring deposit account with respondent- bank on 21.05.1971. He was required to deposit a sum of Rs. 20/- per month. It is alleged that Heera Lal used to give the aforesaid amount to the appellant for being deposited with the bank. The appellant used to fill up the pay-in-slip and give the said amount at deposit counter of the bank for being deposited in the recurring deposit account of Heera Lal. Meanwhile, relationship between Om Prakash and appellant's sister Mrs. Sushila became strained. Sushila initiated criminal proceedings against her husband Om Prakash under Section 125 Cr.P.C. and even under Section 494 I.P.C. As per the appellant, Heera Lal being annoyed with this, filed a written complaint against him in the Court of Judicial Magistrate No. 3, Ajmer on 26.04.1978 under Sections 420, 406, 409, 467, 468 and 471 IPC. Subsequently, the police called him for investigation. The appellant was then taken in custody and was also arrested. The appellant on that very day informed the bank about his arrest and also applied for leave on 25.06.1979 and 26.06.1979. Copy of the application dated 25.06.1979 addressed to the Manager of the bank has been placed on record. Appellant contends that this letter was sent to the Manager of the bank under postal certificate. Copy of the attendance register which was marked as Exhibit-1 in the departmental enquiry has been submitted as Annexure-7 of the writ petition showing that in the register maintained by the (Downloaded on 01/10/2019 at 09:06:41 PM) (3 of 32) [SAW-324/2016] respondent-bank, the appellant has been shown him on leave on 25.06.1979 and 26.06.1979. The police filed charge sheet against the appellant for offence under Section 406 IPC in the Court of Judicial Magistrate, Ajmer. The appellant was released on bail on 26.06.1979 and resumed his services in the bank. The appellant vide letter dated 27.06.1979 informed the Manager of the Bank about his arrest and release on bail. The appellant thereafter appeared in departmental examination for promotion to the post of Assistant Cashier cum Accountant in which he was declared successful but not promoted due to pendency of criminal case against him. Information to this effect was given to the appellant vide letter dated 27.12.1980. The appellant then submitted a representation on 23.01.1981 to the respondent-bank contending that he has been falsely implicated in the criminal case due to family dispute between his sister and brother of the complainant. The appellant was placed under suspension vide order dated 06.02.1981. The trial of the criminal case lasted for about ten years. The Court of Judicial Magistrate No. 1, Ajmer ultimately vide judgment dated 28.05.1991 acquitted the appellant. Thereafter, he submitted a representation to the respondent-bank on 05.06.1991 for revoking his suspension but no action was taken by the bank. The appellant filed Writ Petition No. 5969/1991 before this Court with the prayer to revoke the suspension order dated 06.02.1981 with all consequential benefits. This Court vide judgment dated 24.02.1992 allowed the writ petition and directed the respondent-bank to immediately reinstate the appellant with all consequential benefits. The respondent-bank filed Special Appeal No. 386/1992 against the (Downloaded on 01/10/2019 at 09:06:41 PM) (4 of 32) [SAW-324/2016] aforesaid judgment of the Single Bench. Initially, the Division Bench of this Court vide order dated 30.07.1992 admitted the appeal and stayed operation of judgment passed by the learned Single Judge. However, vide order dated 12.11.1992, stay order was modified and the bank was directed to pay full salary to the appellant. Ultimately, the appeal was dismissed vide judgment dated 11.03.1997.
Further case of the appellant is that after 13 years of his arrest on 25.06.1979, the respondent-bank in most malafide manner served upon him a charge sheet on 30.01.1992 on the same allegation. The appellant challenged the charge sheet by filing Writ Petition No. 4558/1992. Learned Single Judge of this Court vide judgment dated 21.12.1993 allowed the writ petition and quashed the charge sheet. The respondent-bank filed appeal against the aforesaid judgment of Single Bench. Division Bench of this Court vide judgment dated 10.08.1994 directed that the domestic enquiry may go on but the final order may not be passed. Finally, vide order dated 13.09.1994, Division Bench directed the respondent-bank to complete the enquiry within a period of four months and granted liberty to the respondent-bank to pass final order. Thereafter, the Division Bench vide order dated 18.01.1995 further extended the time for completion of enquiry by two more months. Division Bench vide judgment dated 22.01.1998 allowed the appeal and set aside the judgment of the Single Bench observing that if eventually any penalty is awarded to the appellant, he would be at liberty to challenge the same in accordance with law.
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(5 of 32) [SAW-324/2016] Charge No. 1 against the appellant was that he was arrested on 25.06.1979 and he did not inform the bank about his arrest and thereby violated Circular dated 08.12.1971. Charge no. 2 was that the appellant accepted cash from bank customer Mr. Heera Lal Kumawat for depositing the same in his recurring deposit account which act was in contravention of the Bank Rules which provided that no employee of the bank, other than the cash department staff, is authorised to accept the cash. As per the appellant, the respondent did not proceed further in disciplinary proceedings for more than two years. Finally, the enquiry officer was appointed on 15.09.1994. The appellant thereafter demanded some documents. The enquiry officer on 23.09.1994 directed the bank to provide the relevant documents to the appellant. Since the same were not provided, the appellant again requested that for the purpose of his defence, the documents may be supplied to him. The enquiry officer on 03.10.1994 ordered that it is not proper to supply the documents to the appellant for his evidence. On the next date of departmental enquiry, the appellant again requested for the documents, in particular, leave application dated 25.06.1979 and 26.06.1979. Stand of the bank was that the documents pertain to the period more than ten years ago, therefore, the same could not be provided to the appellant. Copy of the order sheet of the departmental proceedings dated 03.10.1994 and 18.10.1994 have been placed on record of the writ petition as Annexure-14 and Annexure-15. Application dated 14.09.1994 filed by the appellant before the enquiry officer has also been placed on record of writ petition as Annexure-16. The bank examined Heera Lal Kumawat (M.W.1); Mahesh Prakash (Downloaded on 01/10/2019 at 09:06:41 PM) (6 of 32) [SAW-324/2016] (M.W.2); Radhey Lal (M.W.3); M.P. Srivastava (M.W.4). According to the appellant, M. P. Srivastava (M.W.4) admitted that on 30.08.1978 the appellant gave him a letter (Exhibit DW-1) by which he applied for leave. Mr. R. K. Rastogi was working as Manager in the concerned Branch where the appellant was posted on 25.06.1979 and 26.06.1979. The appellant gave this application to him. However, the bank dropped the name of Mr. R. K. Rastogi from the list of witnesses and did not examine him. Copy of the statement of M. P. Srivastava (M.W.5) has been placed on record of the writ petition as Annexure-17. The enquiry officer after recording the evidence asked both the parties to file written submissions in brief in support of their case. The appellant submitted that same, copy of which has been placed on record of writ petition as Annexure-18 to the writ petition. The enquiry officer submitted his report on 07.03.1995. The disciplinary authority on that basis passed final order on 10.03.1995, dismissing the appellant from service. However, this order was not served on the appellant inasmuch as the appellant continued to serve with the respondent-bank. In fact, the respondent-bank gave him letter of appreciation of service on 23.08.1997. It is only after the dismissal of Special Appeal on 22.01.1998 that the bank issued letter on 25.02.1998 to the appellant that Zonal Office has instructed the Regional Office to implement the order dated 22.01.1998 and the order of disciplinary authority dated 10.03.1995 and the appellant was dismissed from service with effect from the date of service of aforesaid order. This is how, order of dismissal of the appellant from service was given effect to. Copy of letter of the bank dated 25.02.1998 and copy of order (Downloaded on 01/10/2019 at 09:06:41 PM) (7 of 32) [SAW-324/2016] of dismissal of the appellant from service dated 10.03.1995 have been placed on record of the writ petition as Annexure-21 and Annexure-20 respectively. The learned Single Judge, after hearing the parties, dismissed the writ petition filed by the appellant vide impugned judgment.
Mr. A. K. Bhandari, learned Senior Counsel appearing on behalf of the appellant argued that the respondents in reply to the writ petition raised preliminary objection of availability of alternative remedy of appeal provided under Clause 19.14 of Chapter XIX captioned as "DISCIPLINARY ACTION AND PROCEDURE THEREFOR". Learned Single Judge, however, referring to number of judgments overruled that objection and proceeded to decide the writ petition on merits. One of the arguments, which the appellant raised before the learned Single Judge was with regard to proportionality of penalty. It was argued that the appellant joined services of the respondent-bank on 20.01.1967 and was eventually dismissed from service vide order dated 10.03.1995 passed by the disciplinary authority, which was served upon the appellant vide order dated 25.02.1998. Thus, when this order was served upon the appellant, he had already completed pensionable services of 31 years. The learned Single Judge, on the aspect of proportionality of penalty, referred to the judgment of the Supreme Court in Raghubir Singh Vs. General Manager, Haryana Raodways, (2014) 10 SCC 301; State of Andhra Pradesh Vs. Chitra Venkata Rao, (1975) 2 SCC 558; Union of India (UOI) & Others Vs. G. Annadurai, (2009) 13 SCC 469; V. Ramana Vs. A.P.S.R.T.C. & Others, (2005) 7 SCC (Downloaded on 01/10/2019 at 09:06:41 PM) (8 of 32) [SAW-324/2016] 338 but finally recorded findings mostly on the merits of the case and no finding on the aspect of the proportionality of penalty was recorded.
Mr. A. K. Bhandari, learned Senior Counsel, while assailing the judgment of the learned Single Judge as also order of penalty on merits argued that the penalty is shockingly disproportionate to the gravity of the charge and unreasonable. On merits, his submission is that charges against the appellant have not been proved and the findings recorded by the enquiry officer and disciplinary authority are perverse. Charge no. 1 was to the effect that the appellant did not inform the bank about his arrest in a criminal case on 25.06.1979 which amounted to violation of Circular dated 08.12.1971. In this regard, it is argued that the appellant informed the respondent bank in writing about his arrest in criminal case, which would be evident from Annexure- 4 of the writ petition. In fact, witness of the respondent-bank M.P. Srivastava (M.W.4) in his cross-examination admitted this fact. Initially, the police called the appellant for investigation on 30.08.1978. The police again took the appellant for investigation on 25.06.1979. The appellant then applied for leave of two days and sent the application to the Bank Manager, Mr. R.K. Rastogi, whose name was initially included in the list of witnesses but later on the same was dropped. The appellant was granted leave for two days as would be evident from attendance register (Annexure-7 of the writ petition) and leave register (Annexure-8 of the writ petition). The appellant was arrested and released on 26.06.1979 and thereafter when he joined his duties, he (Downloaded on 01/10/2019 at 09:06:41 PM) (9 of 32) [SAW-324/2016] submitted information of his bail in writing on 27-06-1979 to the Bank Manger Mr. Rajesh Tyagi (Annexure-9 of the writ petition). Not only this, case of the appellant was considered for promotion and vide letter dated 27.12.1980, and Assistant General Manager of UCO Bank informed the Ajmer Branch of the bank that in view of the fact that a charge sheet filed against the appellant, he was not eligible for promotion. This clearly shows that the bank was throughout aware about the pendency of the criminal case against the appellant. Learned Senior Counsel argued that the dispute basically was between sister of the appellant and her husband, who happen to be real brother of the complainant Heera Lal and it was because of their strained relations that a false criminal case was lodged against the appellant.
Learned Senior Counsel further argued that charge no. 2 was with regard to handling of cash of the customer of the bank. It is argued that this charge is founded on manual of instructions Vol. I (Cash) of UCO Bank (Annexure-34 of the writ petition) which provided that "Only members of cash department are authorised to receive cash from the public. No other member of the staff is authorised to receive cash." Learned Senior Counsel argued that as per the case of the respondent, Ram Gopal was depositing a sum of Rs. 20/- per month in the recurring deposit account of his relative Heeralal Kumawat fairly and regularly. Pay- in-slip was also being filled in by the appellant and the same was being handed over to the cashier of the bank. It clearly shows that the appellant was only acting on behalf of his relative and it cannot be said that he was handling the cash of the bank (Downloaded on 01/10/2019 at 09:06:41 PM) (10 of 32) [SAW-324/2016] customer in violation of aforesaid instructions. The appellant has placed on record number of receipts of deposit (Annexure-31 of the writ petition) in many of which name of the appellant Ram Gopal Kumawat has been shown as depositor. It was a bona fide deposit made by the appellant on behalf of his relative in his recurring deposit account. There is no allegation of embezzlement against the appellant. It is not even the case of the respondent- bank that the appellant ever accepted the cash in an unauthorised manner, which was in contravention of the bank rules.
Learned Senior Counsel further argued that enquiry proceedings have been conducted in gross violation of principles of natural justice. Despite repeated requests of the appellant, the documents were not provided to him, which is clear from order sheets dated 03.10.1994 and 18.10.1994 (Annexure-14 and Annexure-15 of the writ petition respectively) and application dated 14.02.1994 (Annexure-16 of the writ petition); application dated 23.09.1994 (Annexure-36 of the writ petition) and application dated 03.10.1994 (Annexure-37) and admission of Presenting Officer dated 27.01.1995 (Annexure-38). The documents were not supplied to the appellant because the respondent contended that since they were more than ten years old, the same could not be supplied, but at the same time, disciplinary authority failed to appreciate that charge sheet against the appellant for alleged charges was served with delay of 13 years and therefore, the respondent cannot take any benefit for their own fault in not initiating disciplinary proceedings against him in time. Moreover, the most important witness of the bank (Downloaded on 01/10/2019 at 09:06:41 PM) (11 of 32) [SAW-324/2016] namely Mr. R.K. Rastogi, to whom the appellant gave his leave application dated 25.06.1979 (Annexure-5) and 27.06.1979 (Annexure-9) and representation dated 23.01.1981 (Annexure-
11), was initially included in the list of witnesses (Annexure-17) but later on he was dropped. An adverse inference ought to be drawn against the respondents that had he been produced, he would have deposed in favour of the appellant. The respondent- bank did not even bring on record Circular dated 08.12.1971 (Annexure-22 of the writ petition) which according to them was violated by the appellant. Circular dated 08.12.1971 required that no member, other than the cash staff, should handle the cash, but such circular should be brought to the notice of the employees and the acknowledgment must be obtained by way of signatures of the concerned employee. The bank failed to prove that the aforesaid circular was ever brought to the notice of the appellant, who was a Class-IV Employee. The enquiry officer as also the disciplinary authority both have wrongly held that since the appellant was peon of the bank, he himself would have circulated this circular to all the employees and therefore, it may be inferred that he was aware of the said circular. This is nothing but mere work of imagination on the part of the enquiry officer.
Mr. A. K. Bhandari, learned Senior Counsel referred to the judgment passed by the Division Bench of this Court in Special Appeal No. 474/1994 filed by the bank, in which interim order was passed on 05.04.1994 and argued that the Division Bench in that order observed that the respondent-bank has not been able to show that there was any charge of misappropriation of amount in (Downloaded on 01/10/2019 at 09:06:41 PM) (12 of 32) [SAW-324/2016] the domestic enquiry. It is an undisputed position that in the domestic enquiry, there was no charge of misappropriation of any amount of the Bank. Neither there was charge of fraud nor any allegation of misappropriation. Though the appellant was subjected to the criminal prosecution for offence under Sections 420, 406, 409, 467, 468 and 471, but he was acquitted honourably vide judgment dated 28.05.1991. On the question of proportionality of penalty, learned Senior Counsel argued that the allegation against the appellant is of minor misconduct that he did not in violation of the Bank Circular dated 08.12.1971 inform the respondent-bank about his arrest and secondly that he acted contrary to the department's instruction that the staff, other than the cash department staff, should refrain from handling or receiving the cash from the customer. Learned Senior Counsel referred to Clause 19.7 of the Memorandum of Settlement between Central Banking Company and Their Workmen dated 19.10.1999 (for short 'the Settlement') in respect of terms and conditions of service of the bank employees and argued that Clauses 19.7, 19.8 and 19.9 thereof provide for minor misconduct and punishment for minor misconduct. Since no specific charge to the aforesaid effect was framed in the charge sheet, learned Single Judge was not justified in holding that the appellant was guilty of major misconduct. Both the charges are highly technical and minor. Punishment of dismissal from service in the facts of the present case was highly unreasonable and shockingly disproportionate. Reliance in this connection has been placed upon the judgment of the Supreme Court in Raghubir Singh (supra); Chitraveer Singh Vs. Nagar Panchayat, Jewar, (Downloaded on 01/10/2019 at 09:06:41 PM) (13 of 32) [SAW-324/2016] (2014) 16, SCC 305 and Om Kumar & Others Vs. Union of India, (2001) 2 SCC 386. Learned Senior Counsel argued that since the appellant is facing litigation for last 40 years and is now 75 years old, his wife is very old; he has no source of livelihood and one of his widowed daughter is dependent upon him, considering that misconduct is minor at the most, he could be punished with warning or censure as provided in Clause 19.8 of the Settlement, more particularly when regarding the incident of 25.06.1979, charge sheet was served upon the appellant 13 years thereafter on 30.01.1992 and the enquiry officer was appointed two years thereafter on 15.09.1994, there is no satisfactory explanation for such inordinate delay. Reliance has been placed on the judgment of the Supreme Court in The State of Madhya Pradesh Vs. Bani Singh & Another, AIR 1990 SC 1308 and judgment of this Court in Dr. B.K. Choudhary Vs. State of Rajasthan & Others, 1993 (1) WLC 47 to argue that in those cases charge sheet was quashed only on the ground of delay. Finding of the learned Single Judge that the allegations against the appellant are of gross misconduct and covered by Clause 19.5(J) is wholly erroneous. To fall under the aforesaid clause, it is necessary that act of the appellant should be prejudicial to the interest of bank and should result into serious loss to the bank. The respondent-bank has neither alleged nor proved that it suffered any serious loss. On the contrary, Division Bench of this Court in its order dated 05.04.1994 had held that the bank has not suffered any loss.
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(14 of 32) [SAW-324/2016] Mr. C. P. Sharma, learned counsel appearing on behalf of the respondent-bank opposed the appeal and argued that the enquiry officer in the enquiry report has specifically observed that required documents sought by the appellant had already been provided by the bank. Reference is made to page 157 of the paper book. Findings with regard to circular dated 08.12.1971 clearly imposes an obligation upon the bank employees to intimate promptly in writing if they are registered under the law in a criminal case. Enquiry officer especially gave a finding that aforesaid circular was circulated to all the employees of the banks. Enquiry officer also found charge no. 2 proved wherein it has been alleged that the appellant was not working in cash department of the bank and he accepted cash from bank customer to be deposited by him in his RD account, which act was in contravention of the bank rule which categorically states that no member other than cash department staff should receive the money from the customer of the bank. Enquiry report was also supplied to the appellant along with letter dated 07.03.1995 and he was called upon to submit his representation but the appellant was unable to do so. Therefore, vide order dated 10.03.1995, he was dismissed from service. It has been proved in the enquiry that FIR was lodged against the appellant for offence under Sections 420, 406, 409, 467, 468 and 471 IPC and charge sheet was also filed against him. The appellant was arrested and remained in custody for two days and thereafter released on bail. The disciplinary authority has concurred with the findings recorded by the enquiry officer that the appellant failed to inform the bank promptly in writing about his involvement in criminal case. As (Downloaded on 01/10/2019 at 09:06:41 PM) (15 of 32) [SAW-324/2016] regards charge no. 2 regarding acceptance of cash by the appellant from the customer of the bank, it has been proved that the appellant accepted cash on various dates from Heeralal Kumawat for being deposited in his R.D. Account at Purani Mandi Branch, Ajmer for which the appellant was not at all authorised. The appellant was served with charge sheet for contravention of clause 19.5(J) of the Bipartite Settlement dated 19.10.1966, which come under gross misconduct. Learned counsel argued that this Court in exercise of powers under Article 226 of the Constitution of India cannot interfere in factual finding given by the enquiry officer as well as disciplinary authority.
Relying on the judgment of the Supreme Court in Disciplinary Authority cum Regional Manager Vs. Nijunja Bihari Patanik, 1996 Volume 2, Service Cases Today page 760, learned counsel argued that the appellant being bank employee was expected to discharge his duty with utmost integrity and devotion and diligence. A bank officer is required to exercise highest standard of honesty, integrity. Relying on the judgments in State Bank of India & Another Vs. Bela Bagchi & Others, 2005 Vol. 4, Service Cases Today, page 292; Shashi Bhusan Prasad Vs. Inspector General Central Industrial Security Force & Others, Civil Appeal No. 7130/2009 decided on 01.08.2019, learned counsel argued that even if the appellant has been acquitted in the criminal case, department enquiry would be still permissible. Relying on the judgment of the Supreme Court in State Bank of India Vs. Samarendra Kishore Endow, 1994 Vol. 2, Service Cases (Downloaded on 01/10/2019 at 09:06:41 PM) (16 of 32) [SAW-324/2016] Today, Page 250, it is argued that the Supreme Court in that case held that imposition of appropriate penalty is within the discretion and judgment of the disciplinary authority and it is appellate authority which may interfere with the same and not the High Court or the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226 of the Constitution of India.
We have given our anxious consideration to rival submissions and carefully perused the material on record.
As regards argument advanced on behalf of the appellant about non-supply of the documents, we find that the documents were denied to the appellant on the ground that they were more than ten years old therefore, the same could not be supplied. This stand was taken by the respondents in the teeth of the fact that the respondent-bank itself initiated the enquiry against the appellant 13 years after his arrest. We in the facts of the present case deem it appropriate to go into the aspect of the proportionality of the penalty considering the nature of the charges levelled against the appellant. As per the own case of the respondent-bank, charge sheet dated 30.01.1992 was served on the appellant with the following allegations:
"1. That on 25.6.1979, you were arrested by the Police and placed under their custody for an alleged criminal offence on the strength of an FIR No.70/78 lodged against you by Shri Heera Lal Kumawat, under Section 420, 406, 467 and 471 of IPC registered by the Police Station Sadar Kotwali, Ajmer. In terms of Bank's HO SCL No.67/71 dated 8.12.71, you were under and obligation to intimate to the Bank promptly, in writing with regard to the criminal case (Downloaded on 01/10/2019 at 09:06:41 PM) (17 of 32) [SAW-324/2016] registered with the investigation/enquiry and/or any trial or proceedings started there against.
In contravention to this rule, you never intimated to the Bank about any of the aforesaid incidents and the facts came to he notice of the Bank only when the copies of the charge sheets NO.36, 36A, 36B, 36C and not informing the Bank regarding above incidents has been registered as an act of suppression of material information.
2. That though you were not working in the Cash Department of Purani Mandi Ajmer branch, still you accepted cash on various dated viz., 21.5.71, 28.6.71, 31.7.71, 26.8.71, 20.9.71, 30.11.71, 23.12.71, 3.2.72, 28.3.72 & 20.2.73, from Shri Heera La Kumawat (Bank's customer), intended to be deposited by him in his R.D. A/C No.1099, maintained at Purani Mandi Ajmer branch. Your this act of accepting cash is unauthorized and clearly in contravention to the Bank's rule in this behalf which categorically states that no employee of the Bank other than cash department staff is authorized to accept cash from the customers.
3. The above allegations constitute misconducts on your part as under:
i) Doing the prejudicial to the interest of the Bank and gross negligence involving or likely to involve the Bank in serious loss a gross misconduct as per clause 19.5(j) of Bipartite Settlement dated 19.10.1966, as amended.
ii) Breach of the rule of business of the Bank of instruction for running any department- a minor misconduct as per clause 19.7(d) of Bipartite Settlement dated 19.10.66 as amended."
First charge thus proceeded on the footing that in pursuance of circular of the bank dated 08.12.1971, the appellant was under obligation to intimate to the bank promptly in writing with regard to criminal case registered investigation/enquiry and/or any trial or proceedings started there against. The finding recorded by the enquiry officer is that this was customary in all the branches that every instruction/guideline received from the headquarter is orally informed to the employees of the bank and (Downloaded on 01/10/2019 at 09:06:41 PM) (18 of 32) [SAW-324/2016] the same is put on the notice board of the bank. Even though all such instructions should be got endorsed from the staff of the bank but placing the same on the notice board should be taken as sufficient information. Considering that the circular was issued as far as back on 08.12.1971, sometimes it may not be possible to locate the same to prove that it was individually served by obtaining signatures from the staff members. Circular in the present case was received in the Establishment Branch and the then Account Officer, Mr. H. C. Bacchani has made noting in the order sheet that this should be got noted down from the staff. This amply proves the fact that the then officer-in-charge of the Establishment Branch had circulated the said circular amongst the staff members. There is, therefore, no reason to believe that such an information would not have been put on notice board or not circulated amongst the staff members. The enquiry officer did not stop here and proceeded to further record that since the appellant Ram Gopal Kumawat at that time was working as peon in the Branch, therefore, this circular must have been marked to him for being circulated amongst the staff members and he himself must have circulated the same. This shows that the delinquent- appellant was aware of the circular. Findings of the enquiry officer, which have found favour with the disciplinary authority, have apparently been recorded not on the basis of any kind of evidence but on assumption that in the working of the bank, the appellant being a peon, must have circulated the instructions aforesaid and that when the officer-in-charge of the Establishment Branch has put up a note in the order sheet that it should be got noted from all the staff members and put up the same on the (Downloaded on 01/10/2019 at 09:06:41 PM) (19 of 32) [SAW-324/2016] notice board, the instructions must have been put up on notice board and noted down by the staff members. This is perverse and erroneous finding which belies logic. No person of ordinary prudence could arrive at such finding on the given material. The appellant being Class IV employee cannot be attributed too much of knowledge of the intra-departmental circulars/instructions. At any rate, such knowledge cannot be attributed to the appellant on the basis of inferences.
Regarding Charge No. 2 also, the enquiry officer has relied upon manual of instructions Vol. I (Cash) of UCO Bank (Annexure-34 of the writ petition), which provided that "Only members of cash department are authorised to receive cash from the public. No other member of the staff is authorised to receive cash." What is alleged in the aforesaid charge is that the appellant used to receive and deposit a sum of Rs. 20/- per month on behalf of his relative Heera Lal Kumawat and pay-in-slip was also being filled in by the appellant and the cash was handed over to the cashier of the bank. Clearly charge is to the effect that this act of the appellant in accepting cash was unauthorised and in contravention of the bank rules which categorically states that no employee of the bank, other than cash department staff, is authorised to receive cash from the customers and even then, he accepted cash on ten different dates, details of which are given in charge no. 2. As against this, stand of the appellant was that whenever the amount was given by Heera Lal Kumawat to him, he deposited the same in his R.D. Account. Reference in this connection has been made to statement of Radhey Lal (M.W.3), (Downloaded on 01/10/2019 at 09:06:41 PM) (20 of 32) [SAW-324/2016] the then clerk in the cash department and a witness of the respondent-bank, who admitted that the officer or clerk in the cash department accept the cash and from the voucher it does not appear that the appellant accepted any cash. He also admitted that training is also given to the bank staff to fill up the pay-in- slip. The appellant was later on given appreciation and cash reward in securing deposits for the Bank as is evident from letter dated 01.06.1976 issued by Assistant General Manager, Planning & Development (Annexure-2 of the writ petition) and letter dated 23.09.1997 issued by Regional Manager (Annexure-3 of the writ petition). Indisputably, there was no charge of misappropriation of the bank funds by the appellant. The appellant was subjected to criminal trial and was acquitted vide judgment dated 28.05.1991 passed by the Judicial Magistrate No. 1, Ajmer. Even though there was neither any charge in the charge sheet nor any finding in the report of the enquiry officer but the disciplinary authority in his report has given a finding that there is vast difference as regards the entries appearing in the Recurring Deposit Pass Book and corresponding ledger and it is on that basis that he concluded that the act of the appellant was prejudicial to the interest of the bank, amounting to gross negligence or negligence involving or likely to involve the bank in serious loss. Satisfaction of the disciplinary authority is thus founded on a finding in excess of the charges against the appellant. It is primarily on this finding that the respondent-bank has concluded that act of the appellant being prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss was covered under gross (Downloaded on 01/10/2019 at 09:06:41 PM) (21 of 32) [SAW-324/2016] misconduct under clause 19.5(J) of the Bipartite Settlement dated 19.10.1966.
We shall therefore examine whether on the basis of evidence that has been adduced, the bank has been able to bring home the charges against the appellant within the purview of clause 19.5(J) of the Bipartite Settlement dated 19.10.1966, which is reproduced hereunder:
"19.5 By the expression "gross misconduct"
shall be meant any of the following acts and omissions on the part of and employee:
(a) .........
(b) ........
(c) .........
(j) 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;
(k) ..........
(l) .........."
Penalty for 'gross misconduct' has been provided in Clause 19.6, which reads as under:
"19.6. An employee found guilty of gross misconduct may:
(a) be dismissed without notice; or
(b) be warned or censured, or have an adverse remark entered against him; or
(c) be fined; or
(d) have his increment stopped; or
(e) have his misconduct condoned and be merely discharged."
As against the aforesaid, the appellant has sought to argue that this case would be covered by expression 'minor misconduct' as provided under Clause 19.7(d) of the Settlement, which is reproduced hereunder:
(Downloaded on 01/10/2019 at 09:06:41 PM)
(22 of 32) [SAW-324/2016] "19.7. By the expression 'minor misconduct' shall be meant any of the following acts and omissions on the part of an employee:-
(a) ......
(b) ......
(c) .......
(d) breach of any rule of business of the bank or instructions for the running of any department.
(e) .......
(f) .........
(g) ........."
Penalty for 'minor misconduct' has been provided in Clause 19.8, which reads as under:
"19.8. An employee found guilty of minor misconduct may:
(a) be warned or censured; or
(b) have an adverse remark entered against him; or
(c) have his increment stopped for a period not longer than six months."
Learned Single Judge in the impugned judgment has accepted the stand of the respondent-bank and held that act of the appellant in receiving the money from Heera Lal Kumawat for being deposited in his R.D. account with respondent-bank would definitely fall within the ambit of misconduct as contemplated under Clause 19.5(J) of the Bipartite Settlement dated 19.10.1966 punishable with any penalty as provided in Clause 19.6 thereunder. We hardly see any justification for such a conclusion, even if both the charges against the appellant were accepted as proved. In charge no. 1, what is alleged against the appellant is that he violated bank Bank's HO SCL No. 67/71 dated 08.12.1971, according to which he was under obligation to intimate the bank promptly in writing with regard to the criminal case registered with the investigation/enquiry and/or any trial or proceedings (Downloaded on 01/10/2019 at 09:06:41 PM) (23 of 32) [SAW-324/2016] started there against and in contravention of the same, he never intimated the bank about the incident of his arrest. In Charge no. 2, allegation against the appellant is that he accepted cash on various ten dates from one Heera Lal Kumawat for being deposited in his RD account maintained at Purani Mandi Branch, Ajmer and his act of accepting cash is unauthorised and in contravention to rules, which state that no employee of the bank, other than cash department staff, is authorised to receive the cash from the customers. For charge no. 2, the bank has alleged that the act of the appellant was in contravention to manual of instructions Vol. I (Cash) of UCO Bank which provides that "Only members of cash department are authorised to receive cash from the public. No other member of the staff is authorised to receive cash." Upon examining the matter from this perspective and considering the fact that in the disciplinary proceedings, there was no charge of embezzlement of money or manipulation of records or fraud against the appellant, as has been concluded by the disciplinary authority, the recorded finding is in excess of the charges levelled against the appellant and would in fact be covered by minor misconduct provided in Clause 19.7(d) of the Settlement.
The precondition for an act of a delinquent to fall in the expression "gross misconduct" as per Clause clause 19.5(J) of the Bipartite Settlement dated 19.10.1966 is that the act or omission on the part of the employee should be prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank to serious loss. Neither of the charges framed against the appellant can be said to described as "gross (Downloaded on 01/10/2019 at 09:06:41 PM) (24 of 32) [SAW-324/2016] misconduct", which was prejudicial to the interest of the bank nor likely to involve the bank to serious loss.
The learned Single Judge, on the aspect of proportionality of penalty, has referred to the judgments of the Supreme Court in Raghubir Singh (supra); State of Andhra Pradesh Vs. Chitra Venkata Rao, (supra); Union of India (UOI) & Others Vs. G. Annadurai (supra); V. Ramana (supra), but finally recorded findings mostly on the merits of the case rather than on the aspect of the proportionality of penalty. This would be evident from the following findings recorded by the learned Single Judge:
"55. In the instant case at hand, the petitioner was accorded ample opportunity by the enquiry officer in the enquiry proceedings conducted. The disciplinary authority while serving a copy of the enquiry report on 7th March, 1995, called upon for his response and also accorded an opportunity of personal hearing, which was scheduled to be held on 10th March, 1995. The petitioner for reasons best know to him, did not respond to the enquiry report as well as did not appear before the disciplinary authority on 10 th March, 1995. Thus, the facts of the case at hand are different and distinguishable from the opinion referred to and relied upon and has no application to the facts of the case of the petitioner.
56. From the materials available on record, it is also reflected that the petitioner was furnished with all the documents, which were available with the respondent-Bank but for his application seeking leave owing to his arrest on 25 th June, 1979, and the related documents. The then Manager of the Branch was not examined and was dropped for the respondent-Bank was directed to conclude the enquiry within a time frame by the Division Bench of this Court and the petitioner was seeking adjournment on one or the other pretext inspite of a direction to cooperate in the enquiry proceedings. The very fact that the petitioner did not respond to the enquiry report served on him while calling upon (Downloaded on 01/10/2019 at 09:06:41 PM) (25 of 32) [SAW-324/2016] for his response and was also afforded an opportunity of personal hearing further proves that the fact that the respondent-Bank conducted the enquiry proceedings in accordance with the procedure affording ample opportunity of defence to the petitioner during the course of enquiry as well as by the disciplinary authority while considering the matter for imposing of a penalty. The defence which is put forth in the instant writ application was not pleaded by the petitioner before the enquiry officer, no reply was filed to the charge- sheet. No relationship was disclosed before the enquiry officer, to lay a factual foundation, for the alleged false prosecution launched against him.
60. A glance of the text of 19.5(j) would reveal that the expression 'gross misconduct' includes 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 the penalty of 'dismissal without notice' has been specifically provided under clause 19.6 for an employee, who is found guilty of 'gross misconduct'. The act of the petitioner in receiving the money from Hira Lal Kumawat for deposit in the account of Hira Lal Kumawat with the respondent-Bank; would definitely fall within the ambit of the 'misconduct' as contemplated to 19.5 (j), punishable with any of the penalty as provided under clause 19.6.
61. The expression "minor misconduct" as contemplated under clause 19.7 (d), which refers to breach of any rule of business of the bank or instruction for running of any department; refers to the misconduct in discharge of duties which the employee is obliged to perform in accordance with the rules of business of the bank or instructions for running of any departmental. Neither the petitioner was entitled to receive the money from Hira Lal Kumawat nor was obliged to deposit the same in the ordinary course of transaction/business of the bank. Therefore, the act of the petitioner has been rightly construed to be an act of 'gross misconduct' as contemplated under clause 19.5 (j). Moreover, the matter is not be examined by this Court in exercise of power of judicial review as if an appeal against the order passed by the departmental authorities.
62. The petitioner was accorded ample opportunity by the enquiry officer. The (Downloaded on 01/10/2019 at 09:06:41 PM) (26 of 32) [SAW-324/2016] Disciplinary Authority while serving a copy of the enquiry report on 7th March, 1995, called upon for his response and also accorded an opportunity of personal hearing, which was scheduled to be held on 10th March, 1995. The petitioner for reasons best know to him, did not respond to the enquiry report as well as did not appear before the Disciplinary Authority on 10 th March, 1995."
In fact, the Division Bench of this Court vide order dated 05.04.1994 passed in the appeal filed by the respondent- bank has recorded a categorical finding to the following effect:
"The appellant Bank has not been able to show that there was any charge of mis-appropriation of amount in the domestic enquiry. The domestic enquiry had been permitted to be proceeded further by this Court by way of interim relief. Now the domestic enquiry has been concluded and the respondent has been held guilty. However, as stated above, it is an undisputed position that in the domestic enquiry there was no charge of mis-appropriation of any amount of the Bank. In view of this position, we do not think it proper that the operation of the judgment and order dated 21.12.93 passed by the learned Single Judge, should be stayed. The effect of the judgment and order passed by the learned single Judge quashing the charge sheet dated 30.1.92, should be given much more so because it would not be in public interest that the Bank may pay full salary to the respondent without taking any work from him."
In the facts of the case, we are of the considered view that penalty of dismissal from service awarded to the appellant by the respondent-bank is shockingly disproportionate to the gravity of the charges levelled and proved against the appellant. The Supreme Court in Raghubir Singh (supra) on the aspect of proportionality of penalty held as under:
"38. Having regard to the facts and circumstances of this case, we are of the view that it is important to discuss the rule of the "Doctrine of Proportionality" in ensuring preservation of the rights of the workman. The (Downloaded on 01/10/2019 at 09:06:41 PM) (27 of 32) [SAW-324/2016] principle of "Doctrine of Proportionality" is a well recognised one to ensure that the action of the employer against employees/workmen does not impinge their fundamental and statutory rights. The abovesaid important doctrine has to be followed by the employer/employers at the time of taking disciplinary action against their employees/workmen to satisfy the principles of natural justice and safeguard the rights of employees/workmen."
The Supreme Court in Om Kumar & Others (supra), in para 66 to 71 held as under:
"66. It is clear from the above discussion that in India where administrative action is challenged under Article 14 as being discriminatory, equals are treated unequally or unequals are treated equally, the question is for the Constitutional Courts as primary reviewing courts to consider correctness of the level of discrimination applied and whether it is excessive and whether it has a nexus with the objective intended to be achieved by the administrator. Here the court deals with the merits of the balancing action of the administrator and is, in essence, applying "proportionality" and is a primary reviewing authority.
67. But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of E.P. Royappa v. State of T.N., (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors from consideration or has taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. [In G.B. Mahajan v. Jalgaon Municipal Council, (1991) 3 SCC 91 (SCC at p. 111] Venkatachaliah, J. (as he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular v. Union of India, (1994) 6 SCC 651 (SCC at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v.(Downloaded on 01/10/2019 at 09:06:41 PM)
(28 of 32) [SAW-324/2016] Union of India, (1985) 1 SCC 641 (SCC at p.691), Supreme Court Employees' Welfare Assn. v. Union of India, (1989) 4 SCC 187 (SCC at p. 241) and U.P. Financial Corpn. v. Gem Cap (India) (P). Ltd. (1993) 2 SCC 299 (SCC at p.
307) while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then being discriminatory), this Court has confined itself to a Wednesbury review always.
68. Thus, when administrative action is attacked as discriminatory under Article 14, the principle of primary review is for the courts by applying proportionality. However, where administrative action is questioned as "arbitrary"
under Article 14, the principle of secondary review based on Wednesbury principles applies. Proportionality and punishments in service law
69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India, (1987) 4 SCC 611, this Court referred to "proportionality" in the quantum of punishment but the Court observed that the punishment was "shockingly" disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham, (1997) 7 SCC 463.
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is (Downloaded on 01/10/2019 at 09:06:41 PM) (29 of 32) [SAW-324/2016] satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."
The Supreme Court in Naresh Chandra Bhardwaj Vs. Bank of India and Others, AIR 2019 SC 2075, while discussing the law on the scope of judicial interference by the constitution courts in the matter of punishment in disciplinary proceedings held that domain of the courts on the issue of quantum of punishment is very limited. It is the disciplinary authority or the appellate authority, which decides the nature of punishment keeping in mind the seriousness of the misconduct committed. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. However, one other cause for interference can be where the plea raised is of parity in punishment but then the pre- requisite would be that the parity has to be in the nature of charges made and held against the delinquent employee and the conduct of the employee post the incident.
The Supreme Court in Ranjit Thakur Vs. Union of India and Others, (1987) 4 SCC 611, held as under:-
"Judicial review generally speaking, is not directed against a decision, but is directed (Downloaded on 01/10/2019 at 09:06:41 PM) (30 of 32) [SAW-324/2016] against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the court-martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review."
In Prem Nath Bali Vs. Registrar, High Court of Delhi and Another, AIR 2016 SC 101, The Supreme Court in para 24 to 26 of the report held as under:-
"24. It is a settled principle of law that once the charges leveled against the delinquent employee are proved then it is for the appointing authority to decide as to what punishment should be imposed on the delinquent employee as per the Rules. The appointing authority, keeping in view the nature and gravity of the charges, findings of the inquiry officer, entire service record of the delinquent employee and all relevant factors relating to the delinquent, exercised its discretion and then imposed the punishment as provided in the Rules.
25. Once such discretion is exercised by the appointing authority in inflicting the punishment (whether minor or major) then the Courts are slow to interfere in the quantum of punishment and only in rare and appropriate case substitutes the punishment.
26. Such power is exercised when the Court finds that the delinquent employee is able to prove that the punishment inflicted on him is wholly unreasonable, arbitrary and disproportionate to the gravity of the proved charges thereby shocking the conscious of the Court or when it is found to be in contravention of the Rules. The Court may, in such cases, remit the case to the appointing authority for imposing any other punishment as against what was originally awarded to the delinquent employee by the appointing authority as per the (Downloaded on 01/10/2019 at 09:06:41 PM) (31 of 32) [SAW-324/2016] Rules or may substitute the punishment by itself instead of remitting to the appointing authority."
In view of above discussion, penalty of dismissal awarded to the appellant is found to be excessive, arbitrary and wholly disproportionate to the gravity of charges and violative of Wednesbury principles of unreasonableness, which shakes the conscience of the Court. In the normal course, we would have thought of remanding the matter back to the disciplinary authority for awarding any of the penalties prescribed under Clause 19.8 of the Bipartite Settlement for minor misconduct. Considering however that charge sheet in the present case was served upon the appellant 13 years after the incident on 30.01.1992, and order of dismissal from service was passed on 10.03.1995 and the appellant has been litigating with the respondents for almost 27 years, we, in the peculiar facts of the present case, instead of remanding the present matter back to the disciplinary authority, deem it appropriate to substitute the penalty of dismissal from service with the highest penalty awardable under Clause 19.8 of the Bipartite Settlement, which may be imposed for minor misconduct, i.e. stoppage of his increment for a period not longer than six months.
In the result, appeal is allowed. Impugned judgment dated 26.10.2015 passed by the learned Single Judge as also the order of dismissal of the appellant from service is set aside and consequently, the writ petition is allowed. As a result of setting aside of order of dismissal from service, the appellant shall be deemed to have continued in service throughout from the date of (Downloaded on 01/10/2019 at 09:06:41 PM) (32 of 32) [SAW-324/2016] his dismissal till he attained the age of superannuation and shall be entitled to all consequential benefits together with interest @ 6% per annum minus the penalty of stoppage of increment for a period not longer than six months.
Compliance of this judgment be made by the respondents within a period of three months from the date copy of this judgment is produced before the respondents. (NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),Acting CJ MANOJ NARWANI (Downloaded on 01/10/2019 at 09:06:41 PM) Powered by TCPDF (www.tcpdf.org)