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2001 DIGILAW 7 (JK)

J&K Bank Ltd. v. Moti Lal Wattal

2001-01-22

O.P.SHARMA

body2001
1. This is defendants appeal against the judgment and decree dated 07-02-1998 passed by the 2nd Additional District Judge, Jammu. The plaintiff is a dismissed employee of the Jammu & Kashmir Bank Ltd. He was dismissed from service vide order dated 23/06/1976. The suit challenging the order of dismissal was filed in April, 1983. Following facts are not disputed : 2. The plaintiff at the time disciplinary action was initiated against him was an officer. He was served with a charge sheet dated 26-07-1973. The inquiry was held by an officer of the Bank who was duly appointed by the Competent Authority. He was found guilty and dismissed from service by the impugned order. The inquiry was held in accordance with the Jammu and Kashmir Bank Limited Revised Recruitment, Discipline and Appeal Rule, 1972. The plaintiffs challenged the finding and consequential order of dismissal on the ground that no charge was proved against him and the inquiry proceedings as well as the findings were illegal and without basis. The relief claimed by him in the suit is that the order of dismissal be set aside and he be treated in service" and a decree for Rs.1,95,954/- as arrears of salary and allowances upto 31/08/1982 be passed in his favour. The defendants resisted the suit, justifying the inquiry as well as the finding and the order of dismissal. Parties joined issues which read as under: 1. Whether the inquiry held against the plaintiff is bad being against the rules of natural justice and rule 44 of the J&K Bank Ltd (Revised Recruitment, Discipline and Appeal) Rules? O.P.P 2. Whether the plaintiff was charge-sheeted by an unauthorised person, as such, the enquiry is illegal? O.P.P 3. Whether the order of dismissal is illegal, biased and unjustified and passed by an authority not competent to pass and if so, what is its effect? O. P. P 4. Whether the charges levelled against the plaintiff do not amount to gross-misconduct? O. P. P 5. Whether the appeal has been allegedly decided without consideration of record and application of mind. If so, what is its effect? O. P. P 6. Whether the plaintiff is entitled to recover Rs.1,95,454/- as arrears of pay and other allowances upto 31/08/1982 and reinstatement? O. P. P. 7. O. P. P 5. Whether the appeal has been allegedly decided without consideration of record and application of mind. If so, what is its effect? O. P. P 6. Whether the plaintiff is entitled to recover Rs.1,95,454/- as arrears of pay and other allowances upto 31/08/1982 and reinstatement? O. P. P. 7. Whether the plaintiff could be punished on the same charges when he had been already punished for the same charges by withholding of his periodical increments? O.P.P. a) Whether the suit in the present form is not maintainable? O.P.P b) Whether the suit is time barred? O.P.D.� The trial court found all the issues in favour of plaintiff and decreed the suit for Rs. 1,95,454/- as arrears of pay besides holding him entitled to full salary upto the date of superannuation including monetary benefits which he would have earned but for the order of dismissal. 3. The appellants challenge the judgment and decree on the ground that a suit for declaration is not maintainable because service of the petitioner was not regulated under any statute and contract of service cannot be enforced. It is also challenged on the ground that inquiry was held by duly authorised officer and therefore, the findings of the trial court is not sustainable. The trial court also erred in holding that the charge-sheet does not disclose grave misconduct so as to justify dismissal. 4. Mr. J.P. Singh appearing for the appellants argued that Jammu & Kashmir Bank Limited (Revised Recruitment, Discipline and Appeal) Rules, 1972 are in the nature of contract of service because these are not statutory rules. The question whether the charge-sheet was served by a competent authority can be investigated only where the service condition of the employee is regulated under a statute. Since Rules of 1972 are not framed under any statute, therefore, any order passed in violation of the rules may be a ground to award damages-/ compensation to the aggrieved person but his reinstatement is not permissible. The learned trial court according to Mr. Singh has fell in error while determining the legality of the order of dismissal as if the plaintiff was entitled to protection of Article 311 of the constitution of India. Mr. Goja on the other hand argued that Bank is a statutory body and the 1972 Rules are statutory Rules framed under Industrial Dispute Act. Singh has fell in error while determining the legality of the order of dismissal as if the plaintiff was entitled to protection of Article 311 of the constitution of India. Mr. Goja on the other hand argued that Bank is a statutory body and the 1972 Rules are statutory Rules framed under Industrial Dispute Act. These rules according to him also owe their origin to Banking Regulation and therefore have statutory force. He further argued that the maintainability of suit for declaration has already been upheld by this Court while deciding Civil Revision No.49/94 and the same cannot be re-opened. 5. The findings of the trial court on issues No. 1 and 2, have been influenced by the mandate of Article 126 of the Constitution of Jammu and Kashmir which corresponds to Article 31 f of the Constitution of India without deciding whether the service conditions of the employees of the appellant-Bank are regulated by a statute or a Bipartite agreement. The learned trial court has referred to the decisions of this court in Shiv Pal Singh Salathia v. Director General of Police�, 1996 KLJ 520 & A.K. Kraipak and Ors, v. Union of India and others�, AIR, 1970 SC 150, to hold that since charge was framed by an in-competent authority, therefore, enquiry is vitiated and the order of dismissal is illegal. He also found that rules of natural justice have been violated. The trial court after referring to the above two judgments found issues No. 1 and 2 in favour of the plaintiff by observing as under: There should be no element of bias while passing an administrative order or holding quasi judicial enquiry. The participation of the person who charge sheeted the employee and is acting as Presenting Officer does not in any manner render the proceedings unbiased. Accordingly there is a glaring abuse of principles of natural justice which alone vitiates the entire enquiry proceedings against the plaintiff and also the decision of dismissal returned on such enquiry by the defendants. The plaintiff relies again on 1996 KLJ: 520 wherein also the principles of natural Justice came under discussion and inter alia laid down that a person who is not only a witness but has behaved as complainant as well, cannot be appointed as enquiry officer in disciplinary proceedings and delinquent cannot be dismissed from service on the basis of such enquiry.� 6. However, neither Mr. However, neither Mr. Pandita held enquiry nor he presided over the proceedings which infact were conducted by the Deputy Genral Manager. This finding, therefore is against the record and as such not sustainable. 7. The first question is whether the charge has to be framed only by the disciplinary authority/appointing authority as found by the trial court. The question has to be answered with reference to the rules applicable to the employees of the appellant. It is admitted that the service condition of the employees of the appellant Bank are regulated under Jammu & Kashmir Bank Limited (Revised Recruitment, Discipline and Appeal) Rules, 1972, hereinafter the Rules 1972. In the preface to these Rules, it is stated that although stipulations of Desai and Sastry Awards were not strictly applicable to the appellant-Bank, yet these were the basis of negotiations between the Jammu & Kashmir Bank Limited Employees Union and the Banks Management.� This preface is followed by para-2 and 3 which reads as under : 2. As a result of the said negotiations a settlement was arrived at between the said Union and the Bank™s Management and the Memorandum of Settlement presented by the Union and the Bank to the Industrial Tribunal of the Jammu and Kashmir Government at Srinagar on the 25th day of January, 1972, on which the court gave its award on 25-1-1972. 3. The following Service Rules are a part of the said Memorandum of Settlement and the consequent Award. They govern both the officers and workmen class of the Bank, as most of the provisions therein, particularly those embodying general principles, apply as much to officers as to workmen. It was, therefore, found convenient to have one set of Service Rules for all the Bank employees to whatever service, class or category they belong: (a) The Jammu and Kashmir Bank Ltd., (Revised Recruitment, Discipline and Appeal) Rules, 1972. (b) The Jammu and Kashmir Bank Ltd., (Revised Leave) Rules, 1972. (c) The Jammu and Kashmir Bank Ltd. Pay and Allowances and Retirement Benefit Rules, 197-2. (d) The Jammu and Kashmir Bank Ltd., Revised Travelling Allowance Rules, 1972. Provisions pertaining to either officers or workmen only are clearly discernible from the relevant rules.� 8. These Rules, it is further stated in para-4, were approved by the Board of Directors of the Bank vide its resolution No.2 dated 08/01/1972 and became operative with effect from 01/01/1972. (d) The Jammu and Kashmir Bank Ltd., Revised Travelling Allowance Rules, 1972. Provisions pertaining to either officers or workmen only are clearly discernible from the relevant rules.� 8. These Rules, it is further stated in para-4, were approved by the Board of Directors of the Bank vide its resolution No.2 dated 08/01/1972 and became operative with effect from 01/01/1972. We are primarliy concerned with chapter dealing with the Discipline and Appeal Rules commencing from Rule 30 onwards. Rule 30 reads as under: 30. Disciplinary action and procedure thereof, A person against whom disciplinary action is proposed or likely to be taken shall, in the first instance, be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. Final orders shall be passed after due consideration of all the relevant facts and circumstances. With this object in view the following shall apply:� 9. Rule 34 defines gross mis-conduct. The plaintiff has been dismissed from service on the charge of gross-misconduct whether he is guilty of gross mis-conduct or minor mis-conduct is a subject matter of controversy. Rule 40 prescribes the procedure. When it is decided to initiate disciplinary action against an employee. In terms o this rule, a charge-sheet clearly setting-forth the circumstances appearing against him has to be furnished to the employee against whom the disciplinary action is proposed. These rules do not provide as to who should serve the charge-sheet. 10. The contention of Mr. Goja is that it is only the appointing authority who is competent to frame the charge-sheet. However, according to Mr. J. P. Singh, there is no such requirement under law. The charge, according to him, can be framed by the inquiry officer also. The expression Competent Authority is defined in Rule 5(c) of the Rules, 1972 which reads as under: 5(c) i) Competent authority� in relation to exercise of any power under these rules means the Chairman or any other lower authority to which the power is delegated by the Chairman unless the power is specifically retained by the Board with itself in which case it will mean the Board. ii) Appointing authority� means the Competent authority for making appointments to the Banks services.� 10. So the Chairman is empowered to delegate the powers of competent authority for exercising any power under the Rules to any person. ii) Appointing authority� means the Competent authority for making appointments to the Banks services.� 10. So the Chairman is empowered to delegate the powers of competent authority for exercising any power under the Rules to any person. It is admitted case of the parties that General Manager of the Bank is the Competent authority to take disciplinary action against the plaintiff. This power has been delegated by the Chairman vide No. JKB/CMO/76-176 dated 29-04-1976 to the General Manager in ;o far as inquiry against the Chief Manager/Area Manager/Manager of the Bank is concerned. It is further provided that while General Manager would be the disciplinary authority, inquiry proceedings could be conducted by the Deputy General Manager to be nominated by the General Manager. It is admitted case of the plaintiff that the inquiry was conducted by respondent No.4 who was the Deputy General Manager and had been nominated by the General Manager for the purpose. So the charge-sheet has been validly framed, the inquiry report would not be shifted because it has been conducted by an officer authorised by the disciplinary authority. Let us now examine whether the charge-sheet has been validly framed. The learned trial court found that Superintendent Personnel who framed the charge was not competent and therefore the inquiry is vitiated. Sh. A.N. Pandita was the Superintendent Personnel of the appellant-bank. The charge dated 26/07/1973 has been served by him under the instructions from the General Manager as is evident from para 4 of the charge-sheet which reads as under : Now, therefore, I, A.N. Pandita, Superintendent Personnel of the Bank under instructions of the General Manager of the Bank do hereby charge you, Shri M.L. Wattal, Manager Chadura branch of the Bank for having committed the following acts of omission and commission amounting to gross misconduct as defined in Rule 34(e) of the Revised Recruitment, Discipline and Appeal Rules, 1972 of the Bank (hereinafter called the Rules) and call upon you to furnish your reply to the charges on or before 6th August, 1973, if your reply to the charges be found unsatisfactory and prima facie it will appear that you may be liable to any of the punishments as specified in Rule 42 of the Rules ibid.� 12. So Sh. A.N. Pandita has served the charge-sheet approved by the then General Manager of the Bank. So Sh. A.N. Pandita has served the charge-sheet approved by the then General Manager of the Bank. What is important that who has framed the charge and not through whom it has been served. So the charge-sheet has been properly framed because it has the approval of the disciplinary authority competent to impose punishment. This apart the Rules 1972 nowhere provide that the charge could be framed only by the disciplinary authority. Moreover as noticed above the finding of the trial court that charge was not framed by the competent authority was influenced by the judgment of this court in Shiv Pal Singh Salathia v. Director General of Police, 1996 KLJ 520. This judgment is, however, not relevant because the court had considered the import of Rule 359 of the Police Rules with reference to the mandate of section 126 of the Constitution of Jammu & Kashmir. Since the service conditions of the plaintiff are not regulated by the Statutory Rules, therefore, the judgment has no application. Even otherwise the correctness of this decision is doubtful being contrary to the law laid down by the Apex Court in Inspector General of Police and am. v. Thavasiappan 1996 (2) SCC 145 in which Rule 3 (a) & (b) while considering the scope of Tamil Naidu Police Subordinate Service (Discipline and Appeal) Rules, 1955 which is identical to Rule 41 of the Rules, 1972, their Lordships held as under: 7. Before we consider the requirement of Rule 3(b) we will refer to the three decisions cited by the learned counsel for the appellant. He first invited our attention to the decision of this court in State of M.P. V Shardul Singh, 1970 (1) SCC 108. In that case a departmental enquiry was initiated against a Sub-Inspector of Police by Superintendent of Police who after holding an enquiry sent his report to the Inspector General of Police who ultimately dismissed the Sub-Inspector of Police from service. The order of dismissal from Service was challenged before the High Court of Madhya Pradesh on the ground that the enquiry held by Superintendent of Police was against the mandate of Article 311(1) of the Constitution as he was incompetent to conduct the enquiry. The Sub-Inspector of Police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to this court. The Sub-Inspector of Police was appointed by the Inspector General of Police. The High Court allowed the petition. The State preferred an appeal to this court. Rejecting the contention that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a civil servant should be initiated or conducted by the authorities mentioned in that article, this court held as under : (See P. 110, para 6) This article does not in terms require that the authority empowered under that provision to dismiss or remove an official, should itself initiate or conduct the enquiry proceedings the dismissal or removal of the officer or even that that enquiry should be done at its instance. The only right guaranteed to a civil servant under that provision is that he shall not be dismissed or removed by an authority subordinate to that by which he was appointed.� This court further held that (SCC p.l 12, para-10}- ... We are unable to agree with the High Court that the guarantee given under Article 311(1) includes within itself a further guarantee that the disciplinary proceedings resulting in dismissal or removal of a Civil servant should also be initiated and conducted by the authorities mentioned in that Article.� 8. The learned counsel also drew our attention to P. V. Srinivasa Sastry v. Comptroller and Auditor General, 1993 (1) SCC 419; 1993 SCC(L&S) 206; 1993 (23) ATC 645, wherein this court in the context of Article 311(1) has held that in absence of a rule any superior authority who can be held to be the controlling authority can initiate a departmental proceeding and that initiation of a departmental proceedings per se does not visit the officer concerned with any evil-consequences. Transport Commr. V. A Radha Krishna Moorthy, 1995 (1) SCC 332; 1995 SCC (L&S) 313; 1995 (29) ATC 113 was next relied upon. Therein also this court has held that initiation of disciplinary enquiry can be by an officer subordinate to the appointing authority. These decisions fully support the contention of the learned counsel for the appellants that initiation of a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the proposed penalty. 9. As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. These decisions fully support the contention of the learned counsel for the appellants that initiation of a departmental proceeding and conducting an enquiry can be by an authority other than the authority competent to impose the proposed penalty. 9. As to who shall initiate and conduct a disciplinary proceeding, the Rules are silent. Rule 2-A which provides that the Governor or any other authority empowered by him may institute disciplinary proceedings is an enabling provision. From that way it is worded it is not possible to infer that the rule-making authority intended to take away the power of otherwise competent authorities, like the appointing authority, disciplinary authority or controlling authority and confine it to the authorities mentioned in Rule 2-A only. Moreover, it is difficult to appreciate how this provision can be helpful in deciding whether the charge should be framed and the enquiry should be held by that authority only which is competent to impose the penalties mentioned in Rule 3(b)(i). An act of instituting a disciplinary proceeding is quite different from conducting an enquiry. Rule 3(b)(i) provides how an enquiry should be held in a case where it is proposed to impose on a member of the Service any of the penalties specified in clauses (d), (h), (i) and (j) of Rule 2. It lays down the different steps that have to be taken in the course of the enquiry proceeding. This rule is completely silent as regards the person who should perform those acts except that the report of the enquiry has to be prepared by the authority holding the inquiry. Rule 3(b)(i) itself contemplates that the enquiry officer may not be the authority competent to impose the penalties referred to therein and that becomes apparent from the second para of that sub-rule. If it was intended by the rule-making authority that the disciplinary authority should itself frame the charge and hold the enquiry then it would not have provided that a report of the enquiry shall be prepared by the authority holding the enquiry whether or not such authority is competent to impose the penalty. Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. Generally speaking, it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. We do not find anything in the rules which would induce us to read in Rule 3(b)(i) such a requirement. In our opinion, the view taken by the Tribunal that in a case falling under Rule 3(b) the charge memo should be issued by the disciplinary authority empowered to impose the penalties referred to therein and if the charge memo is issued by any lower authority then only that penalty can be imposed which that lower authority is competent to award, is clearly erroneous. We, therefore, allow this appeal. The order passed by the Tribunal is set aside and the case is remitted back to the Tribunal to consider the other contentions which were raised before it and to dispose of the case in accordance with law.� 13. This decision has been reiterated by the Apex Court in Government of Tamil Naidu and others v. S. Vel Raf , A.I.R. 1997 SC 1900 by observing as under: 5. It was contended by the learned counsel for the appellant-State that the Tribunal has committed an error of law in holding that initiation of the disciplinary enquiry against the respondent was not lawful. He submitted that there is nothing in the Tamil Nadu Police Subordinate Service (Discipline and Appeal) Rules, 1955, which requires that a charge memo has to be issued only by an appointing authority or an authority holding a higher rank. This point is now covered by the decision of this court in Inspector General of Police V. Thavasiappan, (1996) 2 SCC 145: (1996 AIR SCW 1461). We, therefore, hold that the Tribunal was wrong in holding that there was no valid initiation of the disciplinary proceedings against the respondent.� 14. Thus even if it is found that the charge-sheet was framed by a subordinate authority, the finding of the enquiry would not be vitiated because the charge could be framed by a subordinate authority also as held in A. Radha Krishna Moorthy (supra) So the finding o the trial court on issue No.2 is not sustainable and it is reversed accordingly. 15. The next question is whether the enquiry was conducted in violation of rule 44 of the Rules. 15. The next question is whether the enquiry was conducted in violation of rule 44 of the Rules. Issue No.1 is based on the allegation that rule 44 is violated and there was violation of principle of natural justice. The trial court in support of this placed reliance on the judgment of Apex Court in A.K. Kraipakand Ors v. UOI and Ors., AIR 1970 SC 150. The judgment has, however, no application to the facts of the case as shall be presently noticed. It is admitted that memo of article of charge dated 26/07/1973 was served upon the plaintiff. He submitted his reply to it on 29/05/1976. There were three charges against him. The first charge against the plaintiff that he had allowed the overdraft between January, 1973 to aunej 1973 to different person in violation of appellants order No. ADV/1564 dated 28/04/1973 whereby his discretionary powers were withdrawn. This charge was specifically admitted by the plaintiff in reply to the show-cause notice dated 03/02/1976. Para 5(a) of which reads as under : 5(a): Coming to the charges, I have possibly nothing to add to what I have already submitted before the authorities from time to time. However, following specific submission are again made for consideration. a) Charge no. 1:1 again admit that I have exceeded the financial powers in the matter of giving of over drafts and other advances. The circumstances under which I had to take such a recourse in certain cases and the motive behind such an action of mine may not kindly be ignored while considering my case." 16. Whatever may be the justification for violation it was either for the inquiry officer or the disciplinary authority to be satisfied of the same. It appears neither the inquiry officer nor the disciplinary authority was satisfied with the justification offered by him for violation of the circular issued by the Bank which tantamounts to insubordination. Having admitted the charge of insubordination, the only question to be considered by the Bank was whether it is a grave misconduct or a minor misconduct. In case the misconduct falls under any of the clauses (a) to (i) of rule 34 it would amount to gross-misconduct. Having admitted the charge of insubordination, the only question to be considered by the Bank was whether it is a grave misconduct or a minor misconduct. In case the misconduct falls under any of the clauses (a) to (i) of rule 34 it would amount to gross-misconduct. Clause (d) and (e) of rule 34 reads as under : 34(d) and (e): willful damage or attempt to cause damage to the property of the Bank or any of its customers; e) willful insubordination or disobedience of any lawful and reasonable order of the management of a superior.� 17. The misconduct of the plaintiff is squarely covered by clause (e) because it is willful disobedience of any lawful and reasonable order. Clause (d) is attracted because due to this, loss has occurred to the Bank as has been admitted by the plaintiff, in para 5 of his reply. The finding of the trial court that rule of natural justice have been violated is not only based on no evidence but against the admission made by plaintiff in para 8 of the plaint, relevant portion of which is extracted below : 8. The inquiry officer appeared throughout gravely pre-judiced and bent upon holding the petitioner-plaintiff guilty of the charges without caring to observe the rules of natural justice and without appreciating the plea taken by the petitioner-plaintiff. The report of the Enquiry Officer itself is too sketchy to prove any of the charges against the petitioner-plaintiff. It is irrational and illogical and vitiated by errors of facts, law and jurisdiction. It is based on no cogent evidence and has been drafted without any application of mind on the part of respondent-defendant No.4 taking no note of bonafides pleaded by the petitioner-plaintiff. There is absolutely no evidence to show that the advances were made by the petitioner-plaintiff dishonestly or even recklessly. There is no evidence of the dishonesty or negligence on the part of the petitioner-plaintiff in making the advances, nor is there any evidence of respondent-defendant no. 1 having suffered any loss. There is, infact, no suggestion or observation in the report annexure-IV that the advancement of loans made by the petitioner-plaintiff was in any manner motivated by any personal or extraneous consideration apart from the consideration of promoting the business of respondent-defendant No. 1.� 18. 1 having suffered any loss. There is, infact, no suggestion or observation in the report annexure-IV that the advancement of loans made by the petitioner-plaintiff was in any manner motivated by any personal or extraneous consideration apart from the consideration of promoting the business of respondent-defendant No. 1.� 18. There is not even a whisper that the petitioner was not heard during the enquiry on the contrary the entire thrust has been that there was no evidence before the enquiry officer to hold that the petitioner has acted either recklessly or dishonestly while granting overdrafts. The question, therefore is whether it is a case of no evidence or sufficiency of evidence. The inquiry officer has-found that the plaintiff violated the banks order and the disciplinary authority agreed with the inquiry officer. The appellate authority has concurred with these findings and rightly so because the plaintiff has admitted that out of the overdrafts an amount of Rs.50,000/- could not be recovered. It is not the loss but the act of insubordination which is gemane, Since the inquiry officer has found that plaintiff was guilty of insubordination and this finding is supported by the admission made by the plaintiff, it was for the disciplinary authority to decide what should be the penalty imposed. It is, therefore, not a case of no evidence but the gross-misconduct having been proved the question of penalty was to be decided by the competent authority which it decided. The authority having decided to terminate his services, the plaintiff could not be heard to say that the rules of natural justice have been violated when he has participated in the inquiry and was given an opportunity to explain as to why his services should not be terminated in view of the findings of inquiry officer. So the finding of the trial court on issue No. 1 is reversed. 19. Issue No.3. The trial court found (i) that the order of removal from service can only be passed by the appointing authority; and (ii) since the plaintiff was appointed by the Board, therefore, the order passed by the General Manager respondent No.3 is void. So the finding of the trial court on issue No. 1 is reversed. 19. Issue No.3. The trial court found (i) that the order of removal from service can only be passed by the appointing authority; and (ii) since the plaintiff was appointed by the Board, therefore, the order passed by the General Manager respondent No.3 is void. After referring to rule 10 of the Bank Regulation Act, 1949, the court observes as under: This is beaten law that an order of dismissal or removal can be passed only by the appointing authority and an order of removal or dismissal which is passed by an inferior officer is held without jurisdiction. The order of dismissal accordingly passed by the General Manager is to be held without jurisdiction and passed in wrong exercise of jurisdiction and as such is void and inoperative.� 20. The court again while making brief reference to Article 311 of the Constitution of India and some judgments of the High Court found that even if the Chairman delegates the powers of dismissal to the General Manager, the same could be exercised only with the approval of the Board. Both these findings are perverse being against the basic principle of jurisprudence. As noticed above, competent authority in relation to exercise of any power under the Rules, 1972, is the Chairman or any lower authority to which the powers are delegated by the Chaiman. It is admitted that the Chairman has in exercise of the powers vested under Rules 5 empowered the General Manager to be the disciplinary authority in respect of the category of officer to which the plaintiff belongs. This delegation was given vide letter dated 29/04/1973 (supr). The General Manager Sh. D. Prabhakar who passed the order of dismissal on 23/06/1976 was thus competent to dismiss the plaintiff as he was the disciplinary authority as the powers delegated to him by the Chairman had not been specifically stained by the Board. So the finding of the trial court on issue no.3 is also erroneous and accordingly reversed by holding that General Manager was competent to impose the penalty of dismissal. 21. Issue No.4. The finding of the trial court on this issue that the allegations against the plaintiff constitute minor misconduct is perverse being contrary to the definition of gross mis-conduct as defined in rule 41(d) (e). 21. Issue No.4. The finding of the trial court on this issue that the allegations against the plaintiff constitute minor misconduct is perverse being contrary to the definition of gross mis-conduct as defined in rule 41(d) (e). The trial court has virtually substituted the definition of gross misconduct by taking a contrary view which is not supported by the admitted facts. Since the plaintiff has admitted that he acted against the instructions of the Management, therefore, there is no escape from the conclusion that he was guilty of misconduct as defined under Rule 34(3) as it was an act of insubordination because although his discretionary power to grant-over-draft have been withdrawn but he continued to grant the same by taking compassionate view of the parties concerned. Asa result of which the Bank suffered a loss and had to go in for litigation also to recover the money. So the learned trial court has erred in holding that it was a minor misconduct even though facts are not disputed. 22. The findings of the trial court that the charge was not framed by the appointing authority and rules of natural justice have not been followed having been reversed the judgment and decree is liable to be set aside and the suit has to be dismissed by allowing this appeal. Even the plea of bias is based on no evidence and had to be reflected because there is vast difference between the designation of Superintendent and Deputy General Manager. Since the enquiry was admittedly conducted by the Deputy General Manager, who has been empowered, whether it was Sh. A.N. Pandita or someone else is inconsequential as long as the act of n-subordination in so far as he acted in granting overdrafts after his powers in that behalf had been with-drawn. So the conclusion is inescapable that the order of termination has been validly passed by the disciplinary authority who was the competent authority under Rules 1972 to dismiss the plaintiff. 23. There is another aspect of the case. The plaintiff had sought a declaration that since the order of his dismissal is illegal, therefore, he be declared to be in service and paid the salary for the period from the date of his dismissal upto the date of his retirement. He has thus not claimed damages for his wrongful dismissal. 23. There is another aspect of the case. The plaintiff had sought a declaration that since the order of his dismissal is illegal, therefore, he be declared to be in service and paid the salary for the period from the date of his dismissal upto the date of his retirement. He has thus not claimed damages for his wrongful dismissal. Assuming that the order of dismissal is bad though it is not as already found, the question arises whether the suit could be decreed when the decree in essence amounts to specific performance of the contract of personal Service. It is settled law that a contract of personal service is not enforceable. The Supreme Court in Executive Committee of Vaish Degree College, Shamli and others v. lakshmi Narain and others, AIR 1976 SC 888 while considering question after referring to various authorities held as follows: 17. On a consideration of the authorities mentioned above, it is therefore, clear that a contract of personal service cannot ordinarily be specifically enforced and a Court normally would not give a declaration that the contract subsists and the employee, even after having been removed from service can be deemed to be in service against the will and consent of the employer. This rule, however, is subject to three well recognized exceptions (i) where a public servant is sought to be removed from service in contravention of the provisions of Article 311 of the constitution of India; (ii) Where a worker is sought to be reinstated on being dismissed under the Industrial Law; and (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute." 24. The case of the petitioner is not covered by any of the three exceptions because the plaintiff is not a public servant and the order of dismissal has not been passed in contravention of provisions of the statute. The principle was reiterated in Smt. J. Tiwari v. Smt. Jawala Devi Mandir and others, AIR 1981 SC 122 holding as under: ... Since under those terms the appellants services were liable to be terminated on three months notice, all that she would be entitled to, even if the dismissal is wrongful, is a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of her service she continued to be in service. Since under those terms the appellants services were liable to be terminated on three months notice, all that she would be entitled to, even if the dismissal is wrongful, is a decree for damages and not an order of reinstatement or declaration that notwithstanding the termination of her service she continued to be in service. The judgment of this court in Executive Committee of Vaish Degree College, Shamli Vs. Lakshmi Narain, AIR 1976 SC 888, is a direct authority for this conclusion.� 25. Again in Dipak Kumar Biswas v. Director of Public Instruction and others, (1987) 2 SCC 252, while reiterating the law laid down inJawalDevi Vidya Mandirs case (supra), their Lordships held as under : 12. The law enunciated in these decisions stand fully attracted to this case also. Even though the lady Keana Girls College may be governed by the Statutes of the University and the Education code framed by the Government of Meghalaya and even though the College may be receiving financial aid from the government it would not be a statutory body because it has not been created by any statute and its existence is not dependent upon any statutory provision." 26. Since it is the admitted case of the parties that service conditions of the plaintiff are regulated by Bi-partite Agreement between the Employees Union and the Banks Management, the Rules 1972 have no statutory force. If that be so as it really is the plaintiff could not be reinstated in service. 27. In view of the above, this appeal is allowed, the judgment and decree impugned is set aside and the plaintiffs suit is dismissed, without any order as to costs.