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2008 DIGILAW 778 (CAL)

Shibnath Saha v. Bank Of Baroda

2008-08-01

S.P.Talukdar

body2008
JUDGMENT: 1. THE petitioner, Shibnath Saha, by filing the instant application under Article 226 of the Constitution, sought for setting aside and/or cancellation of the order dated 20th July, 2004 passed by the Disciplinary Authority and the order dated 4th april, 2005 passed by Appellate Authority as well as the order of the Reviewing Authority. Apart from other reliefs, the petitioner also sought for a direction upon the respondent authorities for not giving any further effect to the aforesaid orders. Grievances of the writ petitioner may be summed up as follows:- 2. THE petitioner was posted as a Branch Manager of Kharsa Branch, Bank of Baroda, district- Murshidabad under West Bengal and Sikkim Region of the Bank. He was in such rural branch from February, 2001 to 17th May, 2003. This was his second posting in rural branch. By an office order dated 17th July, 2003, the petitioner was all on a sudden placed under suspension by respondent No. 6. By letter dated 9th September, 2003, the said respondent No. 6 directed the petitioner to show cause as to why disciplinary action should not be initiated for alleged irregularities in Kharsa Branch, Murshidabad. The petitioner replied to the said show cause, thereby denying the material allegations made against him. The respondent No. 6, by Memorandum dated 12th December, 2003, issued a purported charge sheet whereby certain charges were brought against him. It was alleged that the petitioner violated Regulations 3 and 24 of the Bank of Baroda Officer Employees" regulation, 1976. The petitioner was directed to submit a written statement of defence. Petitioner accordingly submitted such written statement on 30th January, 2004, thereby denying all the charges brought against him. A departmental enquiry was thereafter started. Respondent No. 9 was appointed as Enquiring Authority to conduct and enquire in respect of the charges set out in the charge sheet. The petitioner was directed to appear for a preliminary hearing by a notice dated 9th February, 2004. On the date of preliminary enquiry being 17th February, 2004, both the petitioner as well as the Presenting Officer were directed to submit all relevant documents and witnesses by 25th of February, 2004. The presenting Officer produced documents before the Enquiring Authority, which were marked as MD-1 to MD-10 and certain others, collectively marked as "p-11". Three witnesses produced by the respondent authority were examined and cross-examined. The presenting Officer produced documents before the Enquiring Authority, which were marked as MD-1 to MD-10 and certain others, collectively marked as "p-11". Three witnesses produced by the respondent authority were examined and cross-examined. The enquiry was made in a perfunctory manner. The Presenting Officer submitted his written statement of argument by letter dated 12th March, 2004. The petitioner gave a reply to the same on 22nd March, 2004. The Enquiring Authority, being respondent No. 9 herein, submitted the enquiry report dated 23rd March, 2004, inter alia, holding that the charges against the petitioner have been proved. Respondent No. 6, while forwarding a copy of the report submitted by the Enquiring Officer, directed the petitioner to make his representation against the findings. Petitioner did so on 23rd March, 2004. The Disciplinary Authority, being respondent No. 5, issued purported final order of punishment dated 20th July, 2004. The petitioner was thereby inflicted with the punishment of removal from service. It was indicated that such order shall not be a disqualification for future employment. The respondent No. 5 also imposed that the suspension period would be treated as period not spent on duty and the petitioner would not be entitled to any monetary and other consequential benefits during the suspension period. The petitioner preferred an appeal and the appellate authority, being respondent No. 3 by order dated 4th April, 2005, dismissed the appeal. Petitioner thereafter filed a review application before the Chairman-cum-Managing director. A reminder was issued thereafter on 15. 3. 2006. But instead of the Chairmancum-Managing Director, the Reviewing Authority, i. e. respondent No. 2, the A. G. M., respondent No. 7 sent a letter dated 8th May, 2006 dismissing the review application. 3. THE purported charge sheet dated 12th December, 2003, the findings of the Enquiring officer and the manner in which the departmental proceeding was conducted, were not in accordance with the rules nor in tune with the principles of natural justice. The order of punishment based on the findings of the Enquiring Authority, the order of the Appellate authority thereby confirming the order of punishment imposed by the Disciplinary authority are bad in law and are liable to be set aside. 4. IN the circumstances, the petitioner approached this Court with the instant application praying for the aforementioned reliefs. The order of punishment based on the findings of the Enquiring Authority, the order of the Appellate authority thereby confirming the order of punishment imposed by the Disciplinary authority are bad in law and are liable to be set aside. 4. IN the circumstances, the petitioner approached this Court with the instant application praying for the aforementioned reliefs. As against this, the respondent bank contested the case by filing an Affidavit-in-Opposition, inter alia, denying all the material allegations made by the petitioner. It was claimed that the writ petition is not maintainable in its present form. It was alleged that the fictitious entries were originated by the petitioner mainly before closing to inflate deposits as well as advance figures of the branch. Interest was paid in different FD/rird accounts at a much higher rate to inflate the profit figures on 31. 03. 2003. Manipulations were made in ASCROM data to conceal NPA position and incorrect balance figures were deliberately reported in some cash credit accounts to hide the actual NPA position. Such respondent further claimed that during the closing as on 31. 03. 2003, incidental charges in savings accounts were recovered without observing Bank's guidelines in order to inflate the profit figures. It was further alleged that in sanctioning loans under Margin Money Scheme of kvic, several irregularities were observed and margin money only in respect of 14 accounts, out of 26 disbursed, were received. The respondent then stated that the writ petitioner submitted his reply on 17th october, 2003 in response to the show cause dated 9th September, 2003 and admitted therein that there had been lapses, omission and commission on his part. The petitioner is well qualified and was not justified in taking the plea of inexperience. The petitioner deliberately manipulated the deposit figure, advance figure and profit figure of the branch by creating simulated entries but had also concealed such simulated entries and attempted to obliterate such simulated entries at a later date. He thereby betrayed the confidence reposed on him by the respondent authorities. As a custodian of public money, he had a paramount duty to act in a bonafide manner and in good faith. The petitioner, thus, was charged with breach of trust reposed in him by the bank and having committed acts, which were derogatory, prejudicial and detrimental to the interest of the bank. The charges were proved in a departmental enquiry. As a custodian of public money, he had a paramount duty to act in a bonafide manner and in good faith. The petitioner, thus, was charged with breach of trust reposed in him by the bank and having committed acts, which were derogatory, prejudicial and detrimental to the interest of the bank. The charges were proved in a departmental enquiry. The respondent authorities categorically denied that the departmental proceeding was conducted in a perfunctory manner. The petitioner's admission that he had charged incidental charges to deposit accounts is unheard of in banking. The petitioner defrauded the valued depositors, who kept their money in the bank. 5. THERE had been falsification of records and non-payment of interest on fixed deposits could not be said to be for the benefit of the bank. Dismissal of the writ application with costs was so prayed for. At the very outset, it may be mentioned that Mr. P. Sengupta appeared and conducted the case on behalf of the writ petition on being so requested by the Bench. 6. WHILE assailing the order dated 20th July, 2004 passed by the Disciplinary Authority, the order dated 4th April, 2005 passed by the Appellate Authority as well as the order of the reviewing Authority, it was submitted by Mr. Sengupta that there had been total failure in appreciation of the matter in its proper perspective. He submitted that the charge sheet, which was issued against the writ petitioner, does not impute any "ill-motive". He contended that the allegations made against the writ petitioner could at best be said to be error of judgment on his part and cannot be held to be "misconduct". He further submitted that the writ petitioner cannot be said to be beneficiary of the alleged action. Mr. Sengupta submitted that the punishment inflicted on the writ petitioner is also harsh and it ignores the human factor. In this context, Mr. Sengupta submitted that the writ petitioner is unfortunately burdened with a daughter, who is physically handicapped. According to Mr. Sengupta, the order of removal is not reasoned and it does not reflect any application of mind. Inviting attention of the Court to the detailed factual background of the case, it was contended by Mr. Sengupta that the writ petitioner could at best be held guilty for achieving target and trying to achieve target could at best be the motive. Sengupta, the order of removal is not reasoned and it does not reflect any application of mind. Inviting attention of the Court to the detailed factual background of the case, it was contended by Mr. Sengupta that the writ petitioner could at best be held guilty for achieving target and trying to achieve target could at best be the motive. Similar conduct could be reflected on the part of many others in the respondent bank, who stand on identical footing but the present petitioner was singled out. It was also submitted on behalf of the writ petitioner that the entire controversy could be the result of his inexperience leading to incompetent handling and thereby allowing errors creeping in the system. 7. ON the other hand, it was submitted by learned Counsel for the respondent bank that the Writ Court is not ordinarily expected to re-evaluate the evidence/materials on record. It was submitted that the scope of judicial review is narrow and limited. It is in regard to the decision-making process. This Court can at best ascertain as to whether any prejudice was caused to the writ petitioner. Learned Counsel for the respondent bank further submitted that the nature and quantum of punishment also does not deserve to be interfered with. 8. THE materials on record reveal that the writ petitioner, while under suspension, was served with a Memorandum dated 12th December, 2003 under Regulation 6 of Bank of baroda Officer Employees" (Discipline and Appeal) Regulation, 1976. He was directed to submit his written statement of defence within a period of 15 days from the date of receipt of the Memorandum. The charges against him may be reproduced as hereunder:- 1. He did not discharge his duties with devotion, diligence and committed such omissions, which showed lack of care, caution and reasonable judgment. 2. He knowingly and willfully violated the Bank's rules and established procedures. 3. He committed serious violation of duty, breach of trust reposed in him by the bank. 4. He adopted such steps and took such actions as were derogatory, prejudicial, detrimental to the interest of the Bank. 5. His irregular actions caused financial loss to the Bank. The writ petitioner submitted his written statement of defence on 30th January, 2004 in response to the Memorandum dated 12th December, 2003. 4. He adopted such steps and took such actions as were derogatory, prejudicial, detrimental to the interest of the Bank. 5. His irregular actions caused financial loss to the Bank. The writ petitioner submitted his written statement of defence on 30th January, 2004 in response to the Memorandum dated 12th December, 2003. The first and foremost stand of the petitioner, as reflected from the said statement, is that the alleged acts were "outcomes for reflecting business growth" and those could not be tainted with any sort of malafide intention on his part. Mr. Amitava Samanta, Senior Branch Manager, Paikpara Branch, was appointed enquiring Authority, Mr. Ashish Chattopadhyay, Manager (Credit), Belghoria Branch, was appointed Presenting Officer in connection with the said enquiry. Three witnesses were examined as management witnesses. They were extensively cross-examined as well. The petitioner submitted his written note of argument on 12th March, 2004. The enquiry report indicates that the petitioner as charged Officer accepted allegation No. 1 in his statement of defence as well as at the time of preliminary hearing and it was done unconditionally. This led the Enquiring Authority hold that allegation No. 1 was, thus, automatically proved. After analyzing the evidence, the Enquiring Authority held that the allegation No. 2 was also proved beyond doubt. The Enquiring Authority after analyzing the evidence on record found that all the other allegations were proved as well. It was further held by the enquiring Authority that all the five charges, which were brought against the writ petitioner, were proved. The writ petitioner submitted a representation on 31st March, 2004. The disciplinary authority thereafter passed an order on 20th July, 2004, which may be reproduced as follows:- "mr. Shibnath Saha is removed from service of the Bank, which shall not be a disqualification for future employment with effect from the date of this order. The suspension period is hereby confirmed and will be treated as period not spent on duty. He will not be entitled to any monetary/other consequential benefits due to him during suspension period. " 9. THE appeal was preferred against the said order of the disciplinary authority dated 20th July, 2004 imposing the penalty of removal from service. Such appeal dated 31st august, 2004 was disposed of by the Executive Director and Appellate Authority by order dated 4th April, 2005 without any manner of interference with the order of the disciplinary authority. 10. " 9. THE appeal was preferred against the said order of the disciplinary authority dated 20th July, 2004 imposing the penalty of removal from service. Such appeal dated 31st august, 2004 was disposed of by the Executive Director and Appellate Authority by order dated 4th April, 2005 without any manner of interference with the order of the disciplinary authority. 10. THE petitioner then sought for review under Regulation 18 of the Bank of Baroda officer Employees" Discipline, Appeal/review Regulation, 1976. Such review as sought for on 18th May, 2005 remained unattended thereby compelling the petitioner to submit a reminder on 15. 3. 2006. By letter dated 8th May, 2006, the petitioner was informed that the review application also had been rejected. Mr. Sengupta, appearing as learned Counsel for the petitioner, while assailing the order passed by the disciplinary authority, by the appellate authority as well as by the reviewing authority, first submitted that in fairness of justice, the charged Officer is entitled to know why he has been found guilty. In order to exercise his right of appeal effectively, such Officer must know the basis on which he has been found guilty. It has to be a decision with reasons and "reasoned finding" is sine qua non. It was submitted that the present writ petitioner could really exercise his right of seeking judicial review when there are reasons assigned in the findings. The Apex Court in the case of Institute of Chartered accountants of India Vs. L. K. Ratna, as reported in AIR 1987 SC 71 , observed that order must contain reasons. Mr. Sengupta then submitted that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would not themselves constitute misconduct. In this context, reference was made to the decision in the case of Union of india and Ors. Vs. J. Ahmed, as reported in AIR 1979 Sc 1022 . Learned Division Bench of this Court in the case of Dipankar Sengupta Vs. U. B. I. and Ors., as reported in 1998 (5) SLR 553, after analyzing the findings of the Enquiry officer held that alleged procedural lapses and lack of supervision and/or failure on the part of delinquents to pursue the matter cannot come within the purview of "misconduct". Learned Division Bench of this Court in the case of Dipankar Sengupta Vs. U. B. I. and Ors., as reported in 1998 (5) SLR 553, after analyzing the findings of the Enquiry officer held that alleged procedural lapses and lack of supervision and/or failure on the part of delinquents to pursue the matter cannot come within the purview of "misconduct". In the factual backdrop of the said case, the learned Court found that there was no application of mind on the part of the disciplinary authority. The disciplinary authority is required to arrive at its own opinion. The order of punishment was found to be not sustainable. Acts of misconduct have been defined in Regulation 24 of the Bank of Baroda officer Employees" (Discipline and Appeal) Regulation, 1976. Misconduct is defined as a breach of any of the provisions of this Regulation. Mr. Sengupta, while dealing with this aspect, invited attention of the Court to the decision in the case of Syndicate Bank Vs. Vidya G. Nayek, as reported in 2001 (2)L. L. N. 952. In Virendra Prosad Vs. Union of India and Ors., as reported in 1986 (2) L. L. N. 1069, it was held that """. Misconduct in common parlance means bad conduct and some sort of an ill-motive or bad motive is an essential ingredient in imputing misconduct on to an individual. Mere error of judgment or a mere negligent way of dealing with the matter cannot by itself be termed to be misconduct. It must be coupled with such other act or acts by which motive would be apparent either expressly or even be inferred by implication, habitual acts of negligence, however, can be termed to be a misconduct and gross negligence also falls within the same category"""" 11. IN the case of Dipankar Sengupta (Supra) it was held that """. . "misconduct" means, misconduct arising from ill-motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct"". . ". The word "misconduct" though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude. . ". The word "misconduct" though not capable of precise definition, on reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude. It must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the terms occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. Inviting attention of the Court to the decision of the learned Division Bench of this court in the case of The Council of the Institute of Chartered Accountants of India Vs. Somnath Basu, as reported in 2006 CWN 1031, it was submitted by Mr. Sengupta that lack of efficiency or attainment of expected standards discharging professional duty would automatically constitute misconduct. In absence of ill-motive, mere negligence in performance of duties or errors of judgment may not construe misconduct. This was virtually echoed in the decision of the Division Bench of this Court in the case of Bank of india and Anr. Vs. Tapan Kumar Sil and Ors., as reported in 2007 (115) FLR 225. Deriving inspiration from the said decision, it was submitted by Mr. Sengupta that the term "misconduct" implies a wrongful intention and not a mere error of judgment. A single act of omission or error of judgment would ordinarily not construe misconduct. 12. ON the other hand, learned Counsel for the respondent bank, in course of his submission, sought to distinguish the facts of the present case from those of the cases, as referred to by learned Counsel Mr. Sengupta on behalf of the petitioner. It was submitted that the standard of proof in criminal trial and departmental enquiry is different. Technical rules of evidence and proof beyond reasonable doubt are not applicable to departmental enquiry. It was contended that preponderance of probabilities is sufficient for purpose of departmental enquiry. Referring to the decision in the case of Canara Bank Vs. It was submitted that the standard of proof in criminal trial and departmental enquiry is different. Technical rules of evidence and proof beyond reasonable doubt are not applicable to departmental enquiry. It was contended that preponderance of probabilities is sufficient for purpose of departmental enquiry. Referring to the decision in the case of Canara Bank Vs. Union of india (Ministry of Labour) and Ors., as reported in 1998 (11) L. L. J. 109, it was submitted that burden of proof is on delinquent to prove that he is not guilty. It was then submitted on behalf of the respondent bank that it is for the charged officer to demonstrate how prejudice was caused to him in course of the enquiry. Deriving inspiration from the decision in the case of Union Bank of India Vs. Vishwa Mohan, as reported in 1998 (1) L. L. J. 191, it was submitted that in the banking business absolute devotion, diligence, integrity and honesty needs to be preserved by every bank employee and in particular the bank Officer. In its absence, confidence of depositors would be impaired. It is difficult to brush aside the submission made on behalf of the respondent bank that the act of misconduct, although cannot be defined with mathematical precision, need be inferred from the facts and circumstances of a particular case. Referring to the decision in the case of General Manager, Appellate Authority, bank of India and Anr. Vs. Mohd. Nizamuddin, as reported in AIR 2006 SC 3290 , it was submitted that the Apex Court disapproved the interference made by the learned Single bench with the penalty imposed by the disciplinary authority and the appellate authority and the confirmation made by the learned Division Bench. In the said case, the concerned bank officer absented himself unauthorizedly for three years and the Apex Court observed that such unauthorized absence for a period of three years was detrimental to the interest of the bank and unbecoming of an officer holding the position as middleman officer. 13. IT was submitted on behalf of the writ petitioner that the copies of the documents at pages 292 and 293 of the writ application remain uncontroverted. The stand of the writ petitioner, thus, had not been denied. Mr. Sengupta applying the doctrine of non-traverse submitted that "window dressing" is more or less accepted as a common practice. Mr. 13. IT was submitted on behalf of the writ petitioner that the copies of the documents at pages 292 and 293 of the writ application remain uncontroverted. The stand of the writ petitioner, thus, had not been denied. Mr. Sengupta applying the doctrine of non-traverse submitted that "window dressing" is more or less accepted as a common practice. Mr. Sengupta further submitted that banks have become more ingenious about finding ways of window dressing. For instance, instead of depending on other banks, intermediaries started tying up with corporate clients. Under this arrangement, at the end of March, a corporation would draw its undrawn advances. The amount would then be simultaneously credited to its current account. This is essentially a book entry. Public sector undertakings also play a big role in "helping" banks in this way. Such window dressing sometimes leads to "ever-green" " a relatively new trend in the financial sector. Technically, evergreening refers to the practice of "managing" the balance sheet through novel ways. Mr. Sengupta made such submission while referring to the print out which has been annexed being Annexure-"p-28" to the writ application. According to him, the Berhampore branch of the respondent bank functioned practically in an identical manner but for reasons best known to the authority, it was not dealt with in identical fashion. While assailing the order passed by the disciplinary authority, the appellate authority as well as by the reviewing authority, Mr. Sengupta submitted that "cut and paste" procedure was adopted and all such orders would clearly indicate non-application of mind. If the assertion that there had been no ill-motive on the part of the writ petitioner remains unassailed, the punishment inflicted by way of ordering removal from service is certainly disproportionately shocking " thereby demanding interference by this Court. 14. RELYING upon the decision in the case of Kailash Nath Gupta Vs. Enquiry Officer, (R. K. Rai), Allahabad Bank and Ors., as reported in JT 2003 (3) SC 322, it was submitted that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-consideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. Mr. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-consideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. Mr. Viswanathan, appearing as learned Counsel for the respondent bank, however, rather reacted strongly while submitting that having regard to the status of the writ petitioner, the nature of his duties and the consequences of his malfunctioning, he does not deserve any lenient treatment. According to him, continuation in service of such an Officer will not only downgrade the position of the bank with inevitable impact on its reputation, but may expose the bank to huge financial loss, apart from the loss of reputation. He further submitted that the writ Court is ordinarily not expected to interfere with the quantum of punishment, unless the said aspect had been dealt with in an extremely arbitrary manner by the concerned authorities. Learned Counsel for the respondent bank sought to derive support and strength from the decision in the case of Canara Bank Vs. V. K. Awasthy, as reported in AIR 2005 SC 2090 . The Apex Court in the said case held that "concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the framework of the statute under which the enquiry is held. The old distinction between a judicial act and an administrative act has withered way. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. Expression "civil consequences" encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life. " 15. IT was further contended 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. In its wide umbrella comes everything that affects a citizen in his civil life. " 15. IT was further contended 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. Normally Court is 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. On behalf of the respondent bank, it was further contended that where no fundamental freedoms are involved, the Courts/tribunals will only play a secondary role while the primary judgment as to reasonableness must remain with the executive or the administrative authority. It was categorically submitted by learned Counsel for the respondent bank that the court cannot be indifferent to the consequences of an act of misconduct " particularly on the part of a bank Officer. The punishment of removal from service on the proved misconduct cannot be said to be disproportionate or irrational. 16. IT is possibly needless to mention that everybody which is created by statute and whose powers and duties are defined by statute is a public authority. So Government departments, local authorities, police authorities, statutory undertakings and corporations are all public authorities. The question naturally arises as to what is expected of such public authority. A public authority must properly perform the public function assigned to it by the law. It must not exceed the powers which have been entrusted to it. Professor Wade in his treatise on Administrative Law stated " "the simple proposition that a public authority may not act outside its powers (ultra vires) might fitly be called the central principle of administrative law". A public authority has the duty to enquire fairly and impartially and to decide in accordance with the law. It has the duty to exercise a discretion reasonably and to come to a reasonable decision. A public authority has the duty to enquire fairly and impartially and to decide in accordance with the law. It has the duty to exercise a discretion reasonably and to come to a reasonable decision. The Court will certainly interfere with the decision of the public authority if the same is so unreasonable that no reasonable man could come to it. In this context, borrowing expression from Lord Hailsham (Lord Chancellor) in 1971 AC 682 that "not every reasonable exercise of judgment is right, and not every mistaken exercise of judgment is unreasonable". Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. It may be further mentioned that a public authority has the further duty to hold the balance fairly. While dealing with administrative law, it is necessary to mention that the judicial pronouncement over the years virtually gave rise to two distinct models i. e. "activist model" and "restraint Model". Activist model is the one which was espoused by Lord denning, who, with Lord Reid in particular, succeeded in challenging the second "restraint model". It may be mentioned that the right of a man to work is just as important to him as, if not more important than, his rights of property. Many powerful associations are seen exercising powers over their members to work. They have a monopoly in important fields of human activity. A wrongful dismissal by them of a member of his livelihood is just as damaging, indeed more damaging, than a wrongful dismissal by an employer of his servant. The punishment of dismissal from service, according to Mr. Sengupta, is far too harsh in the backdrop of the present case. It is true that this Court in exercise of its writ jurisdiction cannot afford to remain indifferent to an arbitrary order of punishment, which is manifestly disproportionate to the charges against the employee/officer. 17. FOR effective appreciation of the grievances, as ventilated on behalf of the writ petitioner, it is necessary to make assessment on the basis of the following principles:-The absence of a fair hearing, the taking into account irrelevant considerations, the retrospective amendment to the rules about referral and perhaps, the failure of an opportunity to appear, coupled with the severity of sentence. Sharing the view of Professor wade, it can be said that "a hearing even when punitive action seems to be clearly justified, could "soften" the heart of the authority and alter their decision. " it is the settled principle of law that the reasons should be given where a person's livelihood, property and also legitimate expectations are at stake. The giving of reasons is one of the fundamental principles of good administration. In the backdrop of the aforesaid discussion, it can be very well said that the authority concerned cannot be accused of denying the opportunity of fair hearing to the writ petitioner. It also cannot be said that he was not given proper opportunity to represent himself and respond to the charges brought against him. Though emphasis has been laid on the fact that the respondent bank did not actually suffer from any financial loss, this may not necessarily go a long way to dilute the charges against the writ petitioner. The reference that the "window dressing" conducted by the writ petitioner is rather common these days amongst many working in the various banks, may not be a justification for overlooking and ignoring such act of the writ petitioner. Since "two blacks do not make a white", no attempt should be made to read more than what meets the eyes in the fact that the concerned Officer of the Berhampore branch had not been touched for similar act. 18. IN course of argument, learned Counsel for the writ petitioner referred to the miserable family condition of the petitioner. It was mentioned that the petitioner is burdened with a handicapped daughter. Various other tragic aspects of the petitioner's life were brought to the notice of the Court. It is true that so far functioning of a bank official is concerned, there is very little scope for showing leniency. A wrongful act on the part of the officials, who hold their office in trust, may have far reaching consequences. But all said and done, the Court cannot afford to ignore that if every saint has a past, every sinner has a future. The writ petitioner has been removed from service and such order of removal from service has its implications. It has to have significant impact. But all said and done, the Court cannot afford to ignore that if every saint has a past, every sinner has a future. The writ petitioner has been removed from service and such order of removal from service has its implications. It has to have significant impact. After due consideration of the relevant facts and circumstances, I think that there is need for a more rational, if not compassionate approach, on the part of the concerned authority in deciding the nature and quantum of punishment. As discussed earlier, there is no such material to the satisfaction of the judicial conscience of the Court so as to suggest that the disciplinary proceeding was conducted in an illegal or arbitrary manner. Nothing wrong in the decision making process. Nothing concrete could be placed before this Court so as to suggest that the authority concerned acted mala fide, with bias or in an unfair and unreasonable manner. There is absolutely nothing so as to suggest that there had been any violation of the principles of natural justice. In such view of the matter, the manner in which the disciplinary proceeding was conducted and the order passed by the disciplinary authority calls for no interference. So far the order of the appellate authority by way of confirming the findings of the disciplinary authority is concerned, there is no reason for any interference. Same can be said about the order of the reviewing authority except for the fact that there is, perhaps, scope, if not need, for reconsideration of the nature and quantum of punishment. 19. THUS, the present application being W. P. No. 19354 (W) of 2006 is disposed of with the following directions:-The petitioner is directed to submit a representation before the Appellate Authority being the respondent No. 3 herein within a period of two weeks from this date seeking reconsideration of the order of punishment. If such a representation is filed, the said reviewing Authority is to consider the matter in its proper perspective and of course, in the light of observation made hereinbefore and preferably, after giving the writ petitioner an opportunity of hearing. The above process must be completed within a period of eight weeks from the date of receipt of the representation. Action to be so taken or order to be so passed must be duly communicated to the writ petitioner within a further period of two weeks. The above process must be completed within a period of eight weeks from the date of receipt of the representation. Action to be so taken or order to be so passed must be duly communicated to the writ petitioner within a further period of two weeks. There is no order as to costs. Urgent xerox certified copy of the judgment be supplied to the parties, if applied for, as expeditiously as possible.