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2013 DIGILAW 558 (GAU)

Hemendra Nath Thakuria v. State of Assam

2013-08-13

A.K.GOSWAMI

body2013
JUDGMENT A.K. Goswami, J. 1. Heard Mr. P.K. Roychoudhury, learned counsel for the petitioner. None appears for the respondent Bank. By this writ application under Article 226 of the Constitution of India, the petitioner seeks to challenge the order dated 03.05.2006, by which the petitioner was imposed with penalty as indicated therein after withdrawal of the earlier penalty of termination of service, pursuant to the order of this Court dated 15.02.2006 in W.P. (C) No. 5990/2004. 2. Order dated 03.05.2006 reads as under: In pursuance to the order of the Hon'ble Guwahati High Court in the case No. 5990/04, the Management of the Bank decided to withdraw the ultimate Penalty of termination of service of Sri Hemendra Nath Thakuria the then Assistant Cashier with the punishment imposed as shown under. (a) He is allowed to join in service in compliance to the order as stated above at the initial stage of the Pay Scale in the post of Assistant/Assistant Cashier i.e. Rs.4700 - 120-5240 - 165 - 7220 - 210 - 9110 - 260-11190 - 325-11515/- pm plus other allowances as admissible. (b) The period of suspension shall be limited to the subsistence allowance, already drawn by him and this period from the date of termination from service till the date of joining shall be treated as not in service and his seniority shall not be counted and he shall not be entitled to get any salary and allowances for the period stated above in the line of policy "No Work, No Pay." (c) He is further warned to be cautioned in discharging the duties allotted to him time to time and to refrain himself from activities detrimental to the banking business and over all health of the Bank failing which necessary action shall be taken against him by the Management of the Bank as deem fit and proper. (d) He has to join in service within 15 (fifteen) day from receipt of this order, otherwise the order will be treated as cancelled. 3. In the light of submission of Mr. Choudhury, having regard to the issue that has fallen for consideration, a detail narration of facts, is not considered necessary. (d) He has to join in service within 15 (fifteen) day from receipt of this order, otherwise the order will be treated as cancelled. 3. In the light of submission of Mr. Choudhury, having regard to the issue that has fallen for consideration, a detail narration of facts, is not considered necessary. Suffice it to say that the petitioner, who is an employee of the Gauhati Co-operative Urban Bank Limited, while working in the capacity as an Assistant Cashier was subjected to a disciplinary proceeding and after a full-fledged enquiry, the Executive Committee of the Bank, on perusal of the records of disciplinary proceeding, took the following resolution in its meeting dated 24.01.2003: i) Shri Hemendra Nath Thakuria, Assistant Cashier be reinstated in service with immediate effect. ii) His three annual increments in future be stopped with effect from 01.01.2003 as a measure of punishment for the misconduct committed by him. iii) Before resuming his duties, Shri Thakuria shall have to give an undertaking stating that he shall always be obedient, faithful, shall not do anything which is detrimental to the interest of the Bank, abide by the orders of his superiors, co-operate with all his colleagues, senior officers, members of the Board of Directors/Executive Committee, not divulge any secrecy of the Bank, not obstruct any employee of the Bank who are willing to work at any stage whatsoever. However, Shri Thakuria will get nothing except the subsistence allowance that he has already drawn during the period of his suspension. 4. Thereafter, in terms of the said resolutions, order dated 30.01.2003 was issued imposing penalty upon the petitioner. 5. By a letter dated 28.02.2003, the petitioner prayed for cancellation of the order dated 30.01.2003 and demanded that he be allowed to join unconditionally, meaning thereby, he be absolved of giving the undertaking in terms of the resolution no. (iii) aforesaid. By a letter dated 26.04.2003, the General Manager of the Bank asked the petitioner to report for duty on or before 03.05.2003 in terms of the order dated 30.01.2003, failing which, it was indicated that further accommodation of the petitioner with the Bank will cease. The petitioner having not joined within the stipulated date i.e. 03.05.2003, an order of termination dated 09.05.2003 was issued. 6. Both the orders dated 30.01.2003 and 09.05.2003 were the subject matter of challenge in the writ petition about which it has already been alluded to. The petitioner having not joined within the stipulated date i.e. 03.05.2003, an order of termination dated 09.05.2003 was issued. 6. Both the orders dated 30.01.2003 and 09.05.2003 were the subject matter of challenge in the writ petition about which it has already been alluded to. The said writ petition was disposed of by a Judgment and Order dated 15.02.2006 interfering with the order of termination dated 09.05.2003 and requiring the Bank to pass appropriate orders imposing penalty. 7. Mr. P.K. Roychoudhury, learned counsel for the petitioner submits that this Court, in the earlier record of litigation, specifically directed the respondent Bank to impose minor penalty and in that view of the matter, imposing of major penalty by the order dated 03.05.2006 is, ex-facie, illegal and arbitrary and being in contradiction to the order passed by this Court, necessarily, has to be interfered with. 8. The learned counsel submits that when the High Court had expressed that minor penalty was required to be imposed, the Bank authorities could not have defied the mandate of this Court and unilaterally taken recourse to pass the impugned order imposing major penalty. During the course of his argument, the learned counsel has drawn my attention to the Judgment and Order dated 15.02.2006 with special emphasis on paragraphs 11 and 12. 9. The challenge, in view of the articulation of Mr. Roychoudhury, lies on a narrow campus. This Court is now only required to see whether the order passed by the respondent Bank could be said to be in contravention of this Court's Order dated 15.02.2006. 10. For better appreciation, paragraphs 11 and 12 are re-produced herein below: 11. The court as stated above, is not interfering the minor penalty imposed to the petitioner under the resolution of the Executive Committee in its meeting held on 24.1.2003 inasmuch as this court is also of the considered view that the minor penalty imposed under the resolution of the Executive Committee meeting held on 24.1.2003 would be the punishment appropriate for the charge levelled against the petitioner. But because of the failure of the petitioner to report for duty with minor penalty on or before 3.5.2003, this court by applying the principle of judicial review on the quantum of punishment on the basis of "proportionality" enunciated by the Apex Court in the cases discussed above and also by applying the Wednesbury Test is of the considered view that the ultimate penalty of termination of service imposed to the petitioner under the impugned order dated 9.5.2003 is too harsh and shockingly disproportionate. 12. For the reasons discussed above, the impugned order dated 9.5.2003 is quashed for the limited purpose of allowing the respondents 4 and 5 to re-consider the ultimate penalty of termination of service imposed to the petitioner for the purpose of imposing any penalty other than termination of service to the petitioner. The writ petition is allowed to the extent mentioned above. Parties have to bear their own costs. 11. On a reading of the aforesaid two paragraphs, which are the sheet-anchors and foundation of the argument advanced by Mr. Roychoudhury, I am unable to subscribe the view that Mr. Roychoudhury would like this Court to take. I find no merit in his contention. The import and purport of the order is made very clear in the operative portion of paragraph 12, wherein this Court directed the respondent Nos. 4 and 5 to re-consider the ultimate penalty of termination of service by imposing any penalty other than termination of service upon the petitioner. This Court did not say that respondents could only impose minor penalty. It is clear that this Court left the matter to the discretion of the respondent Bank with the observation that it would be permissible to impose any penalty other than termination of service. 12. If that be so, no fault can be attributed to the respondent authorities for passing the impugned order dated 09.05.2003 imposing penalty as indicated therein. 13. In view of the above discussion, I find no merit in this application and accordingly, the writ petition is dismissed. No cost. Petition dismissed.