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2008 DIGILAW 1419 (PNJ)

Mahesh Kumar v. State Bank Of India

2008-08-20

ADARSH KUMAR GOEL, RAKESH KUMAR GARG

body2008
Judgment Adarsh Kumar Goel, J. 1. This petition seeks quashing of order dated 23.8.2007, Annexure P.9, whereby penalty of removal with superannuation benefits as due without disqualification for future employment, was imposed, which has been affirmed by the appellate authority vide order dated 3.10.2007, Annexure P. 11. 2. Case of the petitioner is that he joined service of the bank as a Messenger on 3.4.1997. On 20.9.2000, his explanation was sought as to why action be not taken for his having not disclosed that he was a Matriculate which was a disqualification for the job. Charge sheet dated 6.3.2001 was issued to him and an Enquiry Officer was appointed on 4.1.2002 who gave his report dated 22.5,2002 in favour of the petitioner. The Enquiry Officer observed that Gazette notification showing that the petitioner passed Matric, was not produced in original and a photo copy of the document could not be relied upon. Reliance was also placed on a DB judgment of the Himachal Pradesh High Court in Prem Lal Sharma V/s. State Bank of India and another, 2000(4) SLR 258. In the said judgment, it was held that qualification of "Under Matric" prescribed was the minimum and there could not be discrimination against the persons possessing higher qualification. Reliance was placed on judgments of the Honble Supreme Court in Y. Srinivasa Rao V/s. J. Geeraish, AIR 1993 SC 929 and H.D. Singh V/s. Reserve Bank of India and others, 1985(4) SCC 201. In Y. Srinivasa Rao (supra), it was held that higher qualification could not be disqualification forgiving of a fair price shop. In HD Singh (supra), order of retrenchment was set aside on the ground that the same was passed without following Section 25-F of the Industrial Disputes Act, 1947. The employer directed holding of de novo enquiry vide order dated 10.10.2002. The petitioner challenged the said order in CWP No. 19434 of 2002, which was allowed by this Court on 17.2.2004 on the ground that option was available for the employer to disagree with the findings of the Enquiry Officer instead of holding of de novo enquiry. The employer served show cause notice dated 21.2.2006 on the petitioner and after considering his reply, passed the impugned order of punishment. 3. Stand of the respondents is that under the rule applicable, qualification prescribed was "8th Class pass but not 10th class pass". The employer served show cause notice dated 21.2.2006 on the petitioner and after considering his reply, passed the impugned order of punishment. 3. Stand of the respondents is that under the rule applicable, qualification prescribed was "8th Class pass but not 10th class pass". The petitioner filed affidavit Annexure R3/2 that he was not 10th Class pass. Later, it was found that the petitioner was 10th class pass from the result of the Punjab School Education Board, Annexure R3/3. This Court in Sukhwinder Singh V/s. State of Punjab and others, 2003(2) SCT101 (P&H)CWP No. 17256 of 2000, decided on 14.2.2003, Annexure R3/1, held that when an employee plays a fraud by furnishing a false affidavit, he could not be given any benefit. Same view was taken in Dhani Ram Chaudhary V/s. State ofHaryana, 2005(1) SCT 571 (P&H). and Kerala Solvent Extractions Limited V/s. A. Unnikrishnan and another, 1994 LLJ (SC) 888, 2006(13) SCC 619. 4. While issuing notice of motion on 25.9.2007, operation of the impugned order was stayed and thus, the petitioner appears to be continuing in service. 5. We have heard learned counsel for the parties and perused the record. 6. Learned counsel for the petitioner submitted that the charge of concealment of furnishing false affidavit was not established as neither the affidavit of the petitioner, copy of which was produced as Annexure R3/2 was produced in original nor the Gazette showing that the petitioner had passed 10th, copy of which was Annexure R3/3, had been produced in original. He also submitted that passing of Matriceven if established, could not be taken against the petitioner as it will amount to discrimination against a person holding higher qualification which could not be sustained. 7. Learned counsel for the respondents submitted that laying down of a qualification was a managerial function of the Bank, which could not be interfered with unless the same was challenged and shown to be arbitrary. Laying down of the said qualification did not violate Article 14 having regard to the nature of the job to which the petitioner was appointed. Absence of original of the Gazette could be no bar to photo copy of the Gazette being taken into account in a departmental proceeding or in a writ petition if the same was genuine. The petitioner had not denied that he had passed the Matric examination. 8. Absence of original of the Gazette could be no bar to photo copy of the Gazette being taken into account in a departmental proceeding or in a writ petition if the same was genuine. The petitioner had not denied that he had passed the Matric examination. 8. The questions for consideration are: (i) Whether possession of higher qualification by the petitioner was proved ? (ii) Whether non-disclosure of qualification amounted to misconduct ? (iii) Whether the impugned order is liable to be interfered with ? Re:(i) 9. It is settled that laying down of qualification is not a function of the Court but of the appropriate authority laying down rules for recruitment. (V.K. Sood V/s. Secretary, Civil Aviation, AIR 1993 SC 2285). Debarring of a person having higher qualification may not be justified as held in Y. Sriniyasa Rao (supra) and Mohd. Riazul Usman Gani and others V/s. District & Sessions Judge, Nagpurand others, AIR 2000 SC 919. However, it cannot be held that a person having a higher qualification must always be treated as eligible for a post for which lower or a different qualification was prescribed. Reference may be made to judgments of the Honble Supreme Court in Yogesh Kumar V/s. Government of NCT, Delhi, AIR 2003 SC 1241 and Dilip Kumar Ghosh V/s. Chairman, AIR 2005 SC 3485. We need not give any conclusive finding whether the petitioner would have been liable to be debarred if he had disclosed that he was Matric, as decision of the present case does not depend on this issue alone. 10. The Enquiry Officer held that it was not proved that the petitioner possessed higher qualification as only a photo copy of the Gazette was produced. Under the Evidence Act, document has to be proved by primary evidence unless a case for producing secondary evidence is made out. In departmental proceedings, Evidence Act does not apply per se. Principles of natural justice apply and if the document is genuine, photo copy of the same can be taken into account. Reference may be made to judgment of the Honble Supreme Court in Union of India V/s. T.R. Varma, AIR 1957 SC 882, Para 10. Similarly, in writ proceedings, a photo copy can be accepted if the same is genuine, Government of Andhra Pradesh and others V/s. Karri Chinna Venkata Reddy and others, AIR 1994 SC 591. Reference may be made to judgment of the Honble Supreme Court in Union of India V/s. T.R. Varma, AIR 1957 SC 882, Para 10. Similarly, in writ proceedings, a photo copy can be accepted if the same is genuine, Government of Andhra Pradesh and others V/s. Karri Chinna Venkata Reddy and others, AIR 1994 SC 591. The photo copy of the Gazette has been accepted by the enquiry Officer to be genuine. There is nothing to show that the said finding was erroneous. There is no averment that the petitioner was not Matric as observed in the show cause notice Annexure P.6. An inference of suppression can certainly be inferred when the petitioner declared himself to be eligible after knowing that the Matric was not eligible. Thus, there is no ground for interference with the finding that the petitioner possessed higher qualification. Re:(ii) 11. In view of finding on Question No. (i), non-disclosure of the qualification of Matric did technically amount to misconduct. Re: (iii) 12. As already observed, misconduct against the petitioner stood proved but the same was of technical nature. Where a person commits misconduct, a departmental authority is entitled to impose appropriate penalty and normally this does not call interference, as held by this Court in Sukhwinder Singh, Dhani Ram and by the Honble Supreme Court in Kerala Solvent-Extractions (supra). 13. However, it is equally well settled that proportionality is a part of Article 14 of the Constitution (State of U.P. V/s. Jaikaran Singh, 2003(9) SCC 228). Where penalty is shockingly disproportionate, interference under Article 226 of the Constitution is not always barred. 14. In the present case, the petitioner was given employment but for the first time, action was sought to be taken after three and a half years. Two years thereafter, a de novo enquiry was ordered which order was struck down by this Court in the year 2004 by which time the petitioner had already rendered seven years service. Fresh order has been passed on 17.9.2007 i.e. after more than ten years of service. The said order has also remained stayed by this Court. The post occupied by the petitioner is that of a Messenger. There is nothing against the petitioners conduct in performing his duties. We are conscious that the Court cannot show misplaced sympathy or interfere with the penalty imposed but peculiar facts of the present case dp call for interference. The said order has also remained stayed by this Court. The post occupied by the petitioner is that of a Messenger. There is nothing against the petitioners conduct in performing his duties. We are conscious that the Court cannot show misplaced sympathy or interfere with the penalty imposed but peculiar facts of the present case dp call for interference. As alread noticed, the petitioner has already served the Bank for more than 11 years. Misconduct is of technical nature and there is nothing against him in his performance of duties for the last 11 years. In these circumstances, we are of the view that the penalty of removal from service imposed against the petitioner would be arbitrary and uncalled for. 15. Accordingly, this petition is allowed. The impugned order is quashed. We leave it open to the Bank to impose any other lesser penalty against the petitioner.