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2006 DIGILAW 186 (PAT)

Anand Kr. v. State Bank Of India

2006-02-22

V.N.SINHA

body2006
Judgment 1. Heard Shri Prabhat Kumar Verma for the petitioner and Shri S.K.Sinha, Sr. Advocate, for the State Bank of India. 2. The petitioner who earlier served as an Assistant Accounts and Cash in the State Bank of India, Secreteriat Branch, Patna, has filed this writ application questioning the correctness and validity of the order dated 2.3.2000, annexure-2, removing him from service on the charge that he committed gross misconduct in terms of Rule 521(4)(a) of the Shashtri Award as retained by Desai Award as charges II & III indicating doubtful integrity was found proved against him which order has also been affirmed in appeal, as would appear from the appellate order served under memo dated 27.5.2000, annexure-1. 3. Learned counsel for the petitioner assailed the two orders on the ground that from the findings, as recorded by the enquiry officer as also the disciplinary authority and the appellate authority, it would appear that charge No. 11 in regard to availing of mid term loan from Rajgir Branch without disclosing the identity as a bank em-ployee has been proved with reference to Rule I of Rules of Conduct annexed as annexure-C to the counter-affidavit which, inter alia, prohibits a bank employee from borrowing money from a broker, money lender, a subordinate employee of the bank and any firm persons having dealings with the bank. According to the counsel, the rules of conduct never command a bank employee while availing term loan facility from any branch of the bank to disclose his identity as a bank employee and if the charge of availing loan facility from the Rajgir Branch of the bank is considered in the light of the rules of conduct, annexure-C, then the said charge is not at all made out as none of the rules of conduct for the bank employee makes it obligatory for the employee to disclose his identity as a bank employee before availing the loan facility from the bank. In this connection, counsel further submits that the disciplinary authority has found the said charge proved by only making partial reference to Rule I of the Rules of conduct annexure-C. According to the learned counsel if the said rule is read in its entirety then there shall be no difficulty in concluding that the said charge is neither made out nor proved. As regard charge No. Ill, that petitioner had engaged himself in a cinema business of which he was proprietor, it is submitted that from the findings recorded by the enquiry officer in the report itself it will appear that the petitioner was not managing the cinema business but was only associated and his association was neither affecting his performance as an employee of the bank nor was causing any financial loss to the bank and, according to learned counsel, the punishment of removal appears to be excessive and unduly harsh. As regards charge No. IV, which is not the basis of the original removal order but as has been considered by the appellate authority in sub-paragraphs 6 & 7 of its order it is submitted that period of unauthorised leave having been regularised as leave without pay much before the drawal and service of the charge-sheet on the petitioner could not have been drawn as a charge in the departmental proceeding. In this connection, learned counsel for the petitioner, has referred to the provisions contained in Rule 521(4)(f) & 6(a) of the Shashtri Award which inter alia, defines minor misconduct and includes absence without leave or overstaying sanctioned leave without sufficient ground as minor misconduct unless repeated on four occasions. It is submitted, with reference to those provisions, that for overstayal petitioner was earlier allowed only one censure and on the present occasion his leave having already been regularised he ought not to have been proceeded for unauthorised absence, in view of the judgment of the Hon ble Supreme Court in the case of State of Punjab & Ors. V/s. Bakshish Singh, reported in A.I.R. 1999 S.C. p. 2626 where their Lordships of the Apex Court has held that once the period of unauthorised absence having been regularised as leave without pay, the period could not have been subsequently taken as a charge for unauthorised absence. 4. Learned counsel in view of the aforesaid submissions further submitted that there is no material either in the enquiry report or in the two impugned orders to justify the observation of the disciplinary authority that the petitioner is a person of doubtful integrity and on this score alone the two impugned orders should be set aside and the matter remitted to the authorities to consider imposition of punishment other than discharge, removal, dismissal & compulsory retirement. 5. 5. On the other hand learned counsel for the Bank before refuting the aforesaid submissions on merits first raised a preliminary objection regarding the maintainability of the writ petition. He submitted that the petitioner being a workman before invoking the jurisdiction under Articles 226 & 227 of the Constitution of India should have been well-advised to approach the Industrial Tribunal constituted under the I.D. Act and the writ petition should be dismissed on the ground of alternative remedy. In support of the aforesaid contention learned counsel relied on the Full Bench decision of this court in the case of Dinesh Prasad Mandal V/s. The State of Bihar & Ors., reported in 1984 P.L.J.R. 1002. 6. As regard charge No. II regarding availing of the mid term loan facility from the Rajgir Branch of the bank without disclosing his identity as bank employee is concerned, according to learned counsel for the bank is also proved with reference to rule 1 of the Rules of conduct, annexure-C. As regards merit of charge No. Ill he submitted that from the exhibits presented before the enquiry officer it appeared that the petitioner was actively associated with the cinema business which was being managed as a proprietory concern and the findings recorded by the enquiry officer in respect to the said charge No. Ill is a good ground to conclude that the petitioner is a person of doubtful integrity. As regards charge No. IV, it is submitted that even though the authorities regularised the period of unauthorised absence as leave without pay yet petitioner could be proceeded against for unauthorised absence which is a gross misconduct. 7. The submission that the writ petition should be dismissed on the ground of alternative remedy available before the tribunal constituted under the I.D. Act appears to be misconceived as the impugned orders are not being assailed on the ground of being violative of the provisions of I.D. Act the challenge to the impugned orders is on the ground of disproportionality of the punishment imposed hence, in the opinion, of this court the writ petition is maintainable. 8. 8. Having heard learned counsel for the parties and having perused the enquiry report and the findings recorded by the disciplinary authority and the appellate authority as contained in annexures-4, 2 & 1 it appears to me the allegations constituting charge No. II regarding availing of mid term loan facility by the petitioner from Rajgir Branch of the Bank without disclosing his identity as a bank employee does not constitute any charge, in view of the rules of conduct of the bank employee as contained in annexure-C to the counter affidavit as none of the rules of conduct command the bank employee to disclose his identity as a bank employee before availing the loan facility from any branch of the bank. As regards charge No. Ill it appears that the petitioner at times did associate with the cinema business while serving as Assistant Accounts and Cash but his association with the business neither affected his duties as a bank employee nor caused any financial loss to the bank. Charge No. IV regarding unauthorised absence is also not made out against the petitioner as the period of overstayal was sanctioned as leave without pay much before the drawal of the charge. Petitioner never committed any fraud/interpolation or act of insubordination as is evident from the findings recorded in the enquiry report itself, and the observation of the disciplinary authority that the petitioner is of doubtful integrity is also not made out from the enquiry report and only appears to be the ipse dixit of the disciplinary authority as such the punishment of removal appears to be too excessive and harsh. For coming to the said conclusion I rely on the observation of the Hon ble Supreme Court in the case of Kailash Nath Gupta V/s. Enquiry Officer, (R.K. Rai) Allahabad Bank & Ors., reported in 2003(9) S.C.C. 480 where their Lordships in paragraph 11 have lucidly explained in a case arising out of a disciplinary proceedings taken against a bank employee the circumstances in which the extreme punishment of dismissal or removal should be imposed. Present case being not one of fraud/misappropriation/insubordination or of causing financial loss to the bank, the punishment of removal appears to be disproportionate and harsh. Present case being not one of fraud/misappropriation/insubordination or of causing financial loss to the bank, the punishment of removal appears to be disproportionate and harsh. Accordingly, the orders passed by the disciplinary authority and the appellate authority, as contained in annexures-2 & 1, are quashed and the matter is remitted back to the disciplinary authority to reconsider the punishment imposed on the petitioner and to award any punishment other than dismissal, removal, discharge and compulsory retirement. It shall also be open for the bank to post the petitioner away from Rajgir and Patna wherefrom he is alleged to have been associating himself with cinema business. So far the question of salary for the period between the order of dismissal and the orders of this court is concerned, petitioner shall not be entitled for any salary but he should be given continuity of service. 9. This application is allowed in part. No cost.