K. R. S. Panicker v. Syndicate Bank — 1996 DIGILAW 529 (KER)

JUDGMENT C.S. Rajan, J. 1. Petitioner was an Assistant Manager of the respondent Bank. According to him he had an unblemished record of 30 years service in the Bank. While he was working in the Cannanore branch of the Bank he was served with a memo of charges, Ext. P1 dated 18.9.1986. The Articles of charge contained two allegations. In this case we are concerned only with Art.2, which reads as follows: "That while functioning as above, on 30-3-1989 you received an amount of Rs. 300/- from M/s. S. K. Traders, Changanacherry, for crediting the same towards the short collected amount in respect of IBC No. 2242 of M/s. Bush Boake Alien (India) Ltd., Madras and dishonestly misappropriated the said amount for your own use, without accounting the same in the Bank. By your above acts, you exhibited lack of integrity, honesty, devotion and diligence and conduct unbecoming of the status of a Bank Officer and thereby violated Regulation No. 3(1) read with Regulation No. 24 of the Syndicate Bank Officer Employees' (Conduct) Regulations". A domestic enquiry was conducted and the petitioner was found guilty on both the counts, and a punishment of dismissal was imposed on the petitioner. The petitioner challenged the above punishment by filing OP No. 245 of 1991 which resulted in Ext. P3 judgment. This Court in Ext. P3 judgment observed as follows in Para.6: " Coming to the second charge the allegation is that he received Rs. 300/- from S. K. Traders, Changnassery, but did not remit this money to the account of M/s. Bush Boake Alien (India) Ltd. The defence of the petitioner was that he had to take leave for several days and the forgot to gave credit of this amounts. The petitioner has also examined a witness to prove this fact. According to the petitioner he had been keeping this Rs. 300/- in the office itself and only when he was alerted by the Manager he remember the acceptance of Rs. 300/- from S. K. Traders. Of course the petitioner has given a plausible explanation. The learned counsel for the Syndicate Bank vehemently contended that the integrity and honesty of the petitioner was at stake and therefore the authorities rightly decided to dismiss him from service. 300/- from S. K. Traders. Of course the petitioner has given a plausible explanation. The learned counsel for the Syndicate Bank vehemently contended that the integrity and honesty of the petitioner was at stake and therefore the authorities rightly decided to dismiss him from service. It is also pointed out that the petitioner had been working in a managerial cadre and by virtue of his office he would be dealing with public money and once his integrity in financial matters is found to be suspicious, the Bank has no other alternative, but to dismiss him. I am not able to subscribe fully to the argument of the respondent's counsel. This is an instance where the petitioner had given an explanation which may or may not be true. More over, it has also come out in evidence that he had availed leave for some days after the acceptance of Rs. 300/- and till it was detected this amount was not paid. The petitioner had also given a receipt of acceptance of this amount. Moreover, the amount involved is not too much. Warranting an extreme punishment of dismissal from service." Therefore this Court set aside the order of punishment of dismissal from service and directed the respondent to reconsider the punishment and to impose on the petitioner with any other suitable punishment. Accordingly, Ext. P4 order has been passed by which a punishment of compulsory retirement from service was imposed. The relevant two paragraphs of Ext. P4 are extracted below for reference: "I observe that in respect of the above Writ Petition, the Hon'ble High Court of Kerala tendered its judgment dated 22.3.1993 wherein the order of punishment of dismissal from service imposed against Sri. K. R. S. Panicker in respect of Articles of Charge No. 2 is set aside and the Hon'ble High Court directed the respondents to reconsider the punishment etc. I have carefully evaluated/examined in detail all the connected papers placed before me. Having due regard to the judgment/Order dated 22.3.1990 of the Hon'ble High Court of Kerala at Ernakulam, in OP 245/91, it has been decided to reconsider the punishment and to impose a suitable punishment. I have carefully evaluated/examined in detail all the connected papers placed before me. Having due regard to the judgment/Order dated 22.3.1990 of the Hon'ble High Court of Kerala at Ernakulam, in OP 245/91, it has been decided to reconsider the punishment and to impose a suitable punishment. Therefore, having due regard to the facts and circumstances of the case in respect of Articles of Charge No. 2, I am of the view that in the instant case, a penalty of compulsory retirement from the services if imposed, the same will meet the ends of justice." ...... 2. Learned Counsel for the petitioner submits that there is absolutely no consideration of the proportionality of the punishment in Ext. P4 order. This Court found that the punishment of dismissal is not warranted under the circumstances of the case and directed the respondent to pass fresh orders considering whether any other suitable punishment has to be imposed on the petitioner. Then the respondent should have considered the whole aspect of the matter afresh and not to pass an order like Ext. P4 where the punishment of dismissal was just converted into a punishment of compulsory retirement. According to the learned Counsel for the petitioner, the gravity of the charge issued against the petitioner should have been taken into consideration while shaping the punishment to be imposed on the petitioner. Since that has not been done in this case, Ext. P4 is liable to be interfered by this Court. 3. Learned Counsel for the petitioner also brought to my notice the facts relating to charge No. 2 and that the evidence in the oral enquiry showed that the petitioner was keeping Rs. 300/- which was received from a client in an envelope. He also issued a receipt. But thereafter he was on leave for some days and forgot all about the matter. When he came back after leave he was alerted by the Manager about the remittance of the amount in the Bank. Thereafter he remitted the above amount. Therefore there is no willful mis appropriation of the amount by the petitioner and this is not an offence which warrants extreme punishment of compulsory retirement. 4. Learned Counsel appearing for the Bank submitted that it is not as if the petitioner innocently remitted the amount when he was told about the money he received from the party. Therefore there is no willful mis appropriation of the amount by the petitioner and this is not an offence which warrants extreme punishment of compulsory retirement. 4. Learned Counsel appearing for the Bank submitted that it is not as if the petitioner innocently remitted the amount when he was told about the money he received from the party. At first, according to the learned Counsel for the respondent, the petitioner denied having received the above amount and only thereafter he remitted the above amount. That shows that there is lack of integrity and honesty on the part of the petitioner. 5. In Ext. P3 judgment it was indicated that the petitioner had given a plausible explanation and that it has come out in evidence that he had availed leave for some days after the acceptance of the above mentioned amount and till it was detected this amount was not paid. The petitioner had also given a receipt of acceptance of this amount. Moreover, the amount involved is not too much warranting an extreme punishment of dismissal from service. 6. The argument of the learned Counsel appearing for the Bank is that the petitioner was working in a Managerial cadre and by virtue of his office he would be dealing with public money and once his integrity in financial matters is found to be suspicious, the Bank has no other alternative, but to dismiss him. But the Learned Judge was not prepared to subscribe fully to the argument of the respondent's Counsel. These are the circumstances under which this court directed to reconsider the whole matter by the respondent Bank. 7. Sri. M. Ramachandran, learned Counsel appearing for the petitioner relied on the Supreme Court ruling in this regard reported in M. A. Khalsa v. Union of India and others (1988 (Supp) Supreme Court Cases 436). According to him, this Court will be perfectly justified in interfering with the order of punishment on the ground that it is highly disproportionate to the gravity of misconduct alleged to have been committed and proved against the petitioner. At the same time Sri. According to him, this Court will be perfectly justified in interfering with the order of punishment on the ground that it is highly disproportionate to the gravity of misconduct alleged to have been committed and proved against the petitioner. At the same time Sri. M. P. Ashok Kumar, learned Counsel appearing for the Bank strongly argued that the circumstances of the case will definitely warrant extreme punishment of compulsory retirement and accordingly he brought to my attention to the Supreme Court ruling reported in Allahabad Bank Officers' Association and Another v. Allahabad Bank and others ( 1996 (4) SCC 504 ). In the above ruling the Supreme Court was considering the case of certain officers of the Bank who were ordered to be compulsorily retired not as a result of any disciplinary action taken against him, but on the basis of recommendation of a special committee constituted under the relevant regulation for the purpose of determining whether those officers would be allowed to serve till the age of superannuation. Such an order of compulsory retirement the object of which is to weed out the dead wood in order to maintain efficiency and initiative in the service and also to dispense with the services of those whose integrity is doubtful so as to preserve purity in the administration did not cast any stigma on the officers. Therefore, the above ruling can never be made applicable to the facts of this case. 8. Before coming to my conclusion in this case I will deal with another objection raised by the learned Counsel for the Bank. The rules relating to the disciplinary action of the Officers employees of the Syndicate Bank provides for appeal and the petitioner has got an effective alternative remedy against the impugned order. Therefore this Court should not interfere under Art.226 of the Constitution of India with the impugned order. In answer to this contention the learned Counsel for this Court reported in Sreekanta Bhasi v. University of Kerala ( 1996 (1) KLT 626 ). In the above judgment this Court held that it is not an invariable rule that whenever there is an alternative remedy, this Court should refuse to exercise its jurisdiction under Art.226 of the Constitution of India. In the above judgment this Court held that it is not an invariable rule that whenever there is an alternative remedy, this Court should refuse to exercise its jurisdiction under Art.226 of the Constitution of India. In the case of patent illegalities and lack of jurisdiction, this Court would exercise its jurisdiction under Art.226 of the Constitution of India and will not relegate the parties to the alternate remedies. The alternative remedy has not stood as a bar when this Court found that the acceptance of rejection of the nomination was illegal. Therefore it is open to this Court to interfere with an order if such order is appealable or liable to be reviewed by any other competent authorities under Rule, in appropriate case. 9. In this case this Court interfered once with the order of punishment which was imposed on the petitioner on 25.8.90. The incident related to the period 1982. This Original Petition was filed in 1993. Therefore at this distance of time, it will be improper on the part of this Court to drag the petitioner again to the various statutory authorities to get redressal of his grievances. When the respondent has filed counter affidavit completely justifying the stand they have taken in Ext. P4 order, I do not find that any useful purpose will be served in directing the respondent, either in appeal or in revision, reconsider the case of the petitioner. I do not find any justification in refusing any relief to the petitioner on the ground of availability of alternative relief. 10. Now the only question is whether this Court will be justified in interfering with the order of punishment on the basis that the punishment is completely disproportionate to the gravity of the offence. The latest ruling in this regard is the one rendered by the Supreme Court reported in B. C. Chaturvedi v. Union of India (1996 SC 484). In the above ruling the Supreme Court held that the High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief by directing the authority to reconsider the punishment or it may itself to shorten litigation impose appropriate punishment with cogent reasons in support thereof. One of the conditions which this Court can adopt to interfere with such course is that punishment imposed by the disciplinary authority or appellate authority shocks the conscience of the High Court/Tribunal. One of the conditions which this Court can adopt to interfere with such course is that punishment imposed by the disciplinary authority or appellate authority shocks the conscience of the High Court/Tribunal. A learned Judge of this Court also considered this aspect in the ruling reported in Saralamma v. State ( 1996 (2) KLT 80 ). This Court held that in a case where it is satisfied that a punishment meted out by the domestic Tribunal is disproportionate to the charges proved, this Court can interfere with the order of punishment and substitute a lesser punishment. A Division Bench of this Court also took the same view in the Ruling reported in Das v. Union of India (1996 (2) KLT Short Notes (Case No. 37). 11. Therefore the area of interference of this Court in such cases is well defined. The only question for consideration is whether the facts of this case warrant such an interference. 12. As indicated earlier this Court in Ext. P3 judgment has definitely come to the conclusion that the circumstances of the case do not warrant extreme punishment of dismissal from service. The circumstances pointed out by this Court were (1) that the petitioner has given a plausible explanation. (2) he had availed himself of leave after acceptance of Rs. 300/. (3) The petitioner had already given a receipt for the amount received. (4) The amount involved is not a big sum. But this Court adopted the course of leaving the matter again to the authorities to decide the appropriate punishment rather than deciding the same. But in the impugned order none of these aspects was discussed to see whether a lesser punishment can be imposed on the petitioner. I find only a mere statement that having due regard to the facts and circumstances of the case in respect of Articles of Charges No. 2, a penalty of compulsory retirement from the service if imposed, the same will meet the ends of justice. It is bereft of any details or reasons which led the authorities to come to the above conclusion. Therefore I am of the view that the present order of compulsory retirement is really disproportionate to the gravity of the offence alleged to have been proved against the petitioner. 13. The incident relating to the charge happened in 1982. The charge sheet was issued in 1986. The punishment was imposed in 1990. Therefore I am of the view that the present order of compulsory retirement is really disproportionate to the gravity of the offence alleged to have been proved against the petitioner. 13. The incident relating to the charge happened in 1982. The charge sheet was issued in 1986. The punishment was imposed in 1990. This court set aside the above punishment in 1992. The present order was passed in 1993. Moreover the petitioner is also at the verge of his retirement on 31st December, 1996. Under these circumstances I feel that the matter need not go back to the authorities again for imposing a lesser punishment. The High Court itself can take up the responsibility of imposing a lesser punishment. Under these circumstances I feel that a punishment of reduction to a lower post permanently will be sufficient to meet the ends of justice and that will be quite appropriate and proportionate to the misconduct committed by the petitioner. Therefore the respondent is directed to pass orders giving effect to the above punishment before 31.12.1996, the date of retirement of the petitioner. Petitioner is also entitled to get all the consequential benefits of imposing of reversion to a lower post with effect from the date of the original punishment. Original Petition is allowed as indicated above.