Research › Search › Judgment

Gauhati High Court · body

2009 DIGILAW 13 (GAU)

State Bank of India v. P. Zadenga

2009-01-07

H.BARUAH, T.NANDAKUMAR SINGH

body2009
JUDGMENT T. Nandkumar Singh, J. 1. The challenge in the present appeal is to the judgment and order of the learned single Judge dated July 25, 2007, allowing the writ petition, W.P. (C) No. 12/2005 filed by the respondent/writ petitioner assailing the disciplinary proceeding initiated against the respondent/writ petitioner vide Memorandum dated December 8, 1999, the order dated March 28, 2003 inflicting the penalty of dismissal from service on him and the order dated August 16, 2004 passed by the appellate authority rejecting the departmental appeal filed by the respondent/writ petitioner and thereby interfering with the impugned order for dismissal and its confirmation by the appellate authority vide order dated August 16, 2004 only on the ground of contravention of Clause 4 of Annexure-II to the Memorandum of Understanding (hereinafter refers to as "MOU.") dated April 10, 2002 and allowed the disciplinary authority to act in terms of the said clause in a matter as comprehended therein as soon as the trial of the pending cases against the respondent/writ petitioner are concluded. In the impugned judgment and order of the learned single Judge dated July 25, 2005, it is clearly made that while disposing of the writ petition, W.P. (C) No. 12/2005, the learned single Judge did not express his opinion on any other contentions advanced by the parties. 2. Heard Mr. M.M. AH, learned Counsel appearing for the appellants as well as Mr. Zochhuana, learned Counsel appearing for the respondent/writ petitioner. 3. A short factual panorama, which should be sufficient for deciding the present appeal, is briefly recapitulated. While the respondent/writ petitioner was working as Assistant (CAT) in Dawrpui Branch of the appellants' Bank, a disciplinary proceeding was initiated against the respondent/writ petitioner by the appellant No. 3 by issuing the impugned Memorandum dated December 8, 1999 for the charge that 3 (three) Government Retailers lodged a complaint with the Aizawl Police Station alleging that their challan-deposits with the S.B.I. Aizawl Branch, had not been entered in the Cash Receipt Scroll; the District Civil Supply Officer, Aizawl West also had lodged a complaint stating that Smt. Biakmawii, retailer, Bethlehem Lower No. 1 had taken delivery of the food stuffs by using fake challan and the others charges. 4. 4. Admittedly, while the departmental proceeding was proceeding against the respondent/writ petitioner for the said charges, he was facing trial of three number of police cases registered against him in the Aizawl P.S. on the basis of three different FIRs. lodged against him for the same facts and he was arrested but later on released on bail. It is the case of the respondent/writ petitioner that in the said three police cases, a number of documents relating to the transaction were seized by the police in course of their investigation and that the departmental proceeding against him on the same fact/charge during pendency of the criminal proceeding caused serious prejudice to him. The enquiry officer submitted the report stating that the charges framed against the respondent/writ petitioner were proved and the disciplinary authority also came to the tentative conclusion that it was a fit case for dismissing the respondent/writ petitioner and accordingly the respondent/writ petitioner was directed to show cause as to why the proposed punishment of dismissal from service should not be inflicted upon him. After considering the show cause statement submitted by the respondent/writ petitioner and also the enquiry report submitted by the enquiry officer, the disciplinary authority finally imposed by passing the impugned order dated March 28, 2003, major penalty for dismissal from service, to the respondent/writ petitioner, against which an appeal was filed before the appellate authority who also, after giving personal hearing, had dismissed the appeal by the impugned order dated August 16, 2004. Hence, the respondent/writ petitioner filed W.P. (C) No. 12/2005. It is also stated that the respondent/writ petitioner had been acquitted in one of the criminal cases by the trial Court, i.e. the Court of ADM (Judicial) Aizawl. 5. The respondent/writ petitioner assailed the legality and/or the validity of the disciplinary proceeding and the action thereunder on the ground, among others, that the proceeding of the disciplinary authority against the respondent/writ petitioner was in contravention of the Clause 4 of Annexure-II to the Memorandum of Settlement dated April 10, 2002 requiring that if during pendency of the disciplinary proceeding the delinquent is on trial for an offence on the same allegation, disciplinary proceeding would have to be stayed pending completion of the trial. But, the respondent/writ petitioner was dismissed from service by passing the impugned order dated March 28, 2003 which could not have been passed in view of the pendency of the criminal cases on the same charge; and the enquiry conducted was vitiated by one of the procedural fairness and also that in view of the contradictory statements of the witnesses in the disciplinary proceeding and the criminal trial the charges against the respondent/writ petitioner were apparently not proved and therefore the decision of the disciplinary authority to penalize him was perverse and arbitrary. It is the admitted case of the parties that procedures for taking disciplinary action against the employee of the Bank laid down in the Shastri Award and confirmed by the Desai Award were followed till the MoU dated April 10, 2002 was signed between the Indian Bank Association comprising of the Management of 52 number of Class A Bank and their workmen represented by All India Bank Employees' Assn., National Confederation of Bank Employees and Indian National Bank Employees Federation under Section 2(q)and Section 18(1) of the Industrial Dispute Act, 1947 read with Rule 58 of the Industrial Dispute (Central) Rules, 1957. The MoU dated April 10, 2002 is in supersession of all the earlier provisions relating to disciplinary procedures for the workmen in Banks and each provision shall take effect from the date of settlement and also that the terms of settlement shall extend to and cover all the workmen employees of the members-Bank. Admittedly, procedures relating to disciplinary action for the worker employees of the Bank are mentioned in the MoU dated April 10, 2002 are effective from April 10, 2002 and impugned order for dismissal of the petitioner from service was passed on March 28, 2003 and also the appellate authority by passing the order dated August 16, 2004 rejected the departmental appeal filed by the respondent/writ petitioner against the impugned dismissal order dated March 28, 2003. 6. 6. It is the case of the appellant-Bank that as the disciplinary proceeding against the respondent/writ petitioner had also been initiated by issuing the Memorandum dated December 8, 1999 before the MoU dated April 10, 2002, the procedures for disciplinary proceeding prescribed in Shastri Award and confirmed by the Desai Award should be followed in the disciplinary proceeding against the respondent/writ petitioner so far as the charge mentioned in the Memorandum dated December 8, 1999 are concerned and the procedures prescribed in Clause 4 of Annexure-II to the MoU dated April 10, 2002 requiring that if during the pendency of a disciplinary proceeding, delinquent is on trial for an offence on the same allegation, disciplinary proceeding would have to be stayed pending completion of the trial, shall not be applicable in the disciplinary proceeding against the respondent/writ petitioner under the Memorandum dated December 8, 1999 inasmuch as the MoU dated April 10, 2002 came into effect only from April 10, 2002 and also that MoU dated April 10, 2002 vide Clause No. 1 clearly states that: A person against whom disciplinary action is proposed or likely to be taken in the first instance be informed of the charge against him and shall have a proper opportunity to give his explanation as to such particulars. Final order shall be passed after due consideration of all the relevant facts and circumstances. 7. The learned Counsel appearing for the appellant-Bank, in order to substantiate the case of the appellant, has strenuously contended that procedure prescribed in the MoU dated April 10, 2002 shall not be applicable to the disciplinary enquiry against the respondent/writ petitioner under the Memorandum dated December 8, 1999 inasmuch as Section 6 Clause (e) of the General Clauses Act, 1897 clearly speaks that, "Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the appeal shall not affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; any such investigation, legal proceeding or remedy may be instituted, continued or in force, and any such penalty, forfeiture or punishment may be imposed as if the repealing act or regulation have not been passed. In order to booster up this submission, the learned Counsel appearing for the appellant had relied on the decisions of the Apex Court viz, (i) Gammon India Ltd. v. Special Chief Secretary and Ors. (2006) 3 SCC 354 and (ii) Keshavan Mdhava Menon v. State of Bombay AIR 1951 SC 128 . The facts of those cases cited by the learned Counsel appearing for the appellant are diametrically different from that of the present case. The Apex Court in Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. held that: 59. The decision, as is well known, is an authority for which it is decided and not what can logically be deduced there from. It is also well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision," See Ram Rakhi v. Union of India, Delhi Admn. (NCT of Delhi) v. Manohar Lai Haryana Financial Corporation v. Jagdamba Oil Mills AIR 2002 SC 834 : (2002) 3 SCC 496 and Nalini Mahajan Dr. v. Director of Income Tax (Investigation) (2002) 257 ITR 123 (Del). 8. Even if the case of the appellant-Bank that the procedures for disciplinary action against the employee of the Bank contained in Shastri Award and confirmed by Desai Award were to be followed in the disciplinary proceeding against the respondent/writ petitioner under this Memorandum dated December 8, 1999 is accepted, the disciplinary proceeding against the respondent/writ petitioner under the Memorandum dated December 8, 1999 would have to be stayed pending the completion of the trial of the criminal cases against the respondents/writ petitioner on the same charge inasmuch as in paragraph No. 521 Clause 3 of the Shastri Award clearly states that if within the pendency of the disciplinary proceeding, the delinquent is put on trial on the same charge or/on the same fact, such proceeding shall be stayed pending the completion of the trial. Therefore, irreversible conclusion would be that further proceeding of the departmental enquiry against the respondent/writ petitioner for the said charge under the Memorandum dated December 8, 1999 during the pendency of the criminal cases against the respondent/writ petitioner from the same charge was an infraction of the procedure contained in Shastri Award and confirmed by the Desai Award. 9. Therefore, irreversible conclusion would be that further proceeding of the departmental enquiry against the respondent/writ petitioner for the said charge under the Memorandum dated December 8, 1999 during the pendency of the criminal cases against the respondent/writ petitioner from the same charge was an infraction of the procedure contained in Shastri Award and confirmed by the Desai Award. 9. The learned single Judge in the impugned judgment and order dated July 25, 2005 vide para 15 observed that: 15. It is a trite law that a disciplinary proceeding is initiated by the issuance of a memorandum of charges and gets concluded with the final order of penalty. In the instant case admittedly, the order of penalty was passed after the Memorandum of Understanding as above had come into force. It being a clear and categorical Understanding between the parties to the settlement that on and from April 10, 2002, the Shastri Award retained and confirmed by the Desai Award would stand superseded thereby and there being no clause in the said MoU saving pending disciplinary proceedings initiated under the Shastri Award to be continued and concluded in terms thereof, the only logical conclusion is that the provisions of the MoU were applicable to the instant proceeding. The contention of Mr. Ali to the contrary in the face of the relevant clauses contained in the MoU cannot be accepted. The embargo in Clause 4 as above, is explicit and clear and admits of no confusion. In the instant case, two of the three criminal cases against the petitioner on the charges which form die subject matter of the disciplinary proceedings against him are still pending. In that view of the matter, the Bank could not have, in the face of the binding nature of the settlement, avoided the precept of Clause 4, vis-a-vis the disciplinary proceeding pending against the petitioner. In the result, it has to be held that the order of dismissal dated March 28, 2003 and its confirmation dated August 16, 2004 in the above premises cannot be sustained in' law and on facts and are therefore set aside. In the result, it has to be held that the order of dismissal dated March 28, 2003 and its confirmation dated August 16, 2004 in the above premises cannot be sustained in' law and on facts and are therefore set aside. The learned single Judge, by the impugned judgment and order dated July 25, 2005, did not put any embargo to the appellant-Bank from opening the disciplinary proceeding against the respondent/writ petitioner for the charges mentioned in the Memorandum dated December 8, 1999 as soon as the trial of the pending cases against the respondent/writ petitioner are concluded, but the only caution made by the learned single Judge to the appellant-Bank was that the appellant Bank would be obliged to strictly adhere to the guidelines contained in the MoU dated April 10, 2002 in faking further appropriate action if so advised. 10. It is fairly well principles of law that if a decision is taken without any principle, it is unpredictable and such a decision is antithesis of a decision taken in accordance with rules and also that where a power is required to be exercised by a certain authority in a certain way, it should be exercised in that manner or not at all and all other modes of performance are necessarily forbidden (Ref. Hukum Chand Shyam Lal v. Union of India and Ors. (ii) S.G. Jaisinghani v. Union of India and Ors. 1 (Constitution Bench) AIR 1967 SC 1427 and (iii) Bhavnagar University v. Palitana Sugar Mill (P) Ltd. and Ors. (supra). 11. It is also well settled law that in the given case there are departmental proceeding and criminal proceeding on die same charge against same delinquent, acquittal of delinquent by the criminal Court does not conclude the departmental proceeding in respect of the same charge. The Apex Court in Sr. Superintendent of Post Office and Ors. v. G. Gopallan AIR 1999 SC 1514 :(1998) 9 SCC 699 : 1999 LLJ 1313 held that the nature and scope of criminal case are very different from those of the departmental disciplinary proceeding and order of acquittal, therefore, cannot conclude the departmental proceeding. That is to say because in a criminal case charge has to be proved by the standard of proof beyond reasonable doubt while in a departmental proceeding standard of proof for proving the charge is preponderance of probability. The fact of the case in Sr. That is to say because in a criminal case charge has to be proved by the standard of proof beyond reasonable doubt while in a departmental proceeding standard of proof for proving the charge is preponderance of probability. The fact of the case in Sr. Superintendent of Post Office and Ors. v. G Gopallan (supra) are spelt out in para Nos. 3 and 4 of the AIR and the Apex Court set aside the judgment and order of the Tribunal that as Shri Gopallan was acquitted by the criminal Court in respect of the same charge for which the disciplinary enquiry was initiated and imposed major penalty of dismissal from service on the report of the Enquiry Officer, the major penalty imposed on Shri Gopallan could not be sustained. The Apex Court in Chairman & Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar held that acquittal in criminal case is not the determinative of the misconduct or otherwise. It is open to the authority to proceed with the disciplinary proceeding notwithstanding acquittal in the criminal case. Paras-14 and 15 of SCC in Chairman & Managing Director, United Commercial Bank and Ors. v. P.C. Kahkar (supra) reads as follows at p. 187 of LLJ: 13. A bank officer is required to exercise higher standards of honesty and integrity. He deals with the money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik it is no defence available to say that there was no loss or profit resulted in case, when the officer/employee acted without authority. The very discipline of an organization more particularly a bank is dependant upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 14. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. These aspects do not appear to have been kept in view by the High Court. 14. It needs no emphasis that when a Court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning, M. R. in Breen v. Amalgamated Engg. Union observed: (All ER p. 1154h) "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crab tree it was observed: "Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at." Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why they decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking out. The "inscrutable face of a sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance. But as noted above, the proceedings commenced in 1981. The employee was placed under suspension from 1983 to 1988 and has superannuated in 2002. Acquittal in the criminal case is not determinative of the commission of misconduct or otherwise, and it is open to the authorities to proceed with the disciplinary proceedings, notwithstanding acquittal in the criminal case. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon the facts of each case and even that cannot have universal application. 12. It per se would not entitle the employee to claim immunity from the proceedings. At the most the factum of acquittal may be a circumstance to be considered while awarding punishment. It would depend upon the facts of each case and even that cannot have universal application. 12. We are in complete agreement with the observations and directions of the learned single Judge in the impugned judgment and order dated July 25, 2005 allowing the disciplinary authority to take further appropriate action if so advised as soon as the trial of the pending criminal cases against the respondent/writ petitioner are concluded. 13. We also reiterate that statutory body has to comply with the terms and conditions of service framed for the employees in the matter of employment, dismissal or removal of the employees; and terms and conditions of service may be prescribed either by making regulation or/rules or by administrative instructions. The Apex Court (Constitution Bench) Oil and Natural Gas Commission v. Association of Class II Officers O.N.G.C. and Ors. observed thus: 22. Another characteristic of law is its content. Law is a rule of general conduct while administrative instruction relates to particular person. This may be illustrated with reference to regulations under the Acts forming the subject matter of these appeals. The Life Insurance Corporation Act as well as the Industrial Finance Corporation Act confer power on the Corporation to make regulations as to the method of recruitment of employees and the terms and conditions of service of such employees or agents. The Oil and Natural Gas Commission Act under Section 12 states that the functions and terms and conditions of service of employees shall be such as may be provided by regulations under the Act. Regulations under the 1959 Act provide inter alia the terms and conditions of appointment and scales of pay of the employees of the Commission. The regulations containing the terms and, conditions of appointment are imperative. The administrative instruction is the entering into contract with a particular person but the form and content of the contract is prescriptive and statutory. 23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down the regulations. 23. The noticeable feature is that these statutory bodies have no free hand in framing the conditions and terms of service of their employees. These statutory bodies are bound to apply the terms and conditions as laid down the regulations. The statutory bodies are not free to make such terms as they think fit and proper. Regulations prescribe the terms of appointment, conditions of service and procedure for dismissing employees. These regulations in the statutes are described as "statute" fetters on freedom of contract." The Oil and Natural Gas Commission Act in Section 12 specifically enacts that the terms and conditions of the employees may be such as maybe provided by regulations. There is a legal compulsion on the Commission to comply with the regulations. Any breach of such compliance would be a breach of the regulations which are statutory provisions. In other statutes under consideration, viz., the Life Insurance Corporation Act and the Industrial Finance Corporation Act though there is no specific provision comparable to Section 12 of the 1959 Act the terms and conditions of employment and conditions of employment and conditions of service, are provided for by regulations. These regulations are not only binding on the authorities but also on the public. 14. For the foregoing reasons, we are of the considered view that there is no merit in the present appeal. Accordingly, this appeal is dismissed.