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2014 DIGILAW 737 (MAD)

C. Ashok Kumar v. Canara Bank

2014-03-24

T.S.SIVAGNANAM

body2014
Judgment : 1. In this Writ Petition, the petitioner has sought for issuance of a writ of certiorarified mandamus to quash the punishment order passed by the respondent dated 24.11.2009, by which the petitioner was imposed with the punishment of bringing down to lower stage in the scale of pay by two stages for a period of two years with cumulative effect. The petitioner has also sought for a consequential direction to direct the respondent to restore his pay with all consequential benefits. (a) The facts which are necessary for the disposal of the Writ Petition are that when the petitioner was working as part time employee in the Anna Salai Branch of the respondent Bank, he was placed under suspension by order dated 26.7.2008. Thereafter, a charge memo dated 13.1.2009 was issued to the petitioner alleging that the petitioner was under the influence of alcohol on 18.7.2008; that he committed theft of the Office property and concealed the same with an intention to remove the same at a later point of time and empty liquor bottles were also found concealed in the false ceiling of the Ladies Dining Room on the third floor of the Bank Building, apart from other expensive plumbing materials such as taps etc. were also found to have been removed and therefore, the petitioner has caused wilful damage to the property of the Bank, committed gross misconduct, within the meaning of Chapter XI Regulation 3 (j) and 3(m) of the Canara Bank Service Code. (b) The petitioner submitted his explanation denying the charges. The Management of the respondent Bank appointed an enquiry officer to enquire into the charges and a Presenting Officer was also appointed. The petitioner was permitted to engage the services of a defence representative to defend him in the domestic enquiry. After the oral enquiry was concluded, both the petitioner as well as the Management have submitted their written brief raising all contentions. The Enquiry Officer submitted his findings dated 9.6.2009, holding that the petitioner was guilty of the allegation that he was under the influence of alcohol on that particular day. (c) As regards the concealment of the property of the Bank, the enquiry officer held that the charge is not proved. Similarly, the charge regarding the loss of plumbing items was also held to be not proved. (c) As regards the concealment of the property of the Bank, the enquiry officer held that the charge is not proved. Similarly, the charge regarding the loss of plumbing items was also held to be not proved. The disciplinary authority while forwarding the copy of the report of the enquiry offer has also enclosed his tentative findings, where he had disagreed with the findings of the enquiry officer and the petitioner was given an opportunity to submit his further explanation. (d) The petitioner on receipt of the tentative findings, by letter dated 15.09.2009, informed the Deputy General Manager, stating that the disciplinary authority has taken a stand that he does not concur with the findings of the enquiry officer, however, the disciplinary authority has not rejected the findings and he would wait till the receipt of the second show cause notice and requested the disciplinary authority to clarify whether the findings of the enquiry officer have been rejected in toto and whether the findings of the disciplinary authority is tentative or conclusive. (e) It appears that there was no reply to the said communication, but the petitioner by proceedings dated 28.10.2009, was informed that the Management proposes to impose the punishment of "bringing down to a lower stage in the scale of pay by two stages" and he was afforded an opportunity of personal hearing on4.11.2009 at 10.00 a.m. to state his objections to the punishment proposed. The petitioner appeared for the personal hearing and reiterated his stand. Thereafter, by the impugned proceedings, the petitioner was imposed with the punishment of "bringing down to a lower stage in the scale of pay by two stages for a period of two years with cumulative effect". Challenging the same, the above Writ Petition has been filed. 3. Mr. Balan Haridass, learned counsel appearing for the petitioner submitted that the impugned order is exfacie illegal, in violation of principles of natural justice and wholly without jurisdiction. It is submitted that punishment imposed on the petitioner in the impugned order is not one of the punishment contemplated in the Service Code and therefore, it is without jurisdiction and liable to be set aside. In support of such contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of VIJAY SINGH v. STATE OF U.P. AND OTHERS reported in (2012) 5 SCC 242 . 4. In support of such contention, the learned counsel placed reliance on the decision of the Hon'ble Supreme Court in the case of VIJAY SINGH v. STATE OF U.P. AND OTHERS reported in (2012) 5 SCC 242 . 4. It is further submitted that the disciplinary authority while disagreeing with the findings recorded by the enquiry officer, virtually pre-decided the issue by holding that the petitioner is guilty of the charges, which is in total violation of principles of natural justice. The learned counsel submitted that the procedure to be followed by the disciplinary authority while disagreeing with the findings of the enquiry officer has not been adhered to and the findings of the disciplinary authority in straight away differing without issuing notice to the petitioner is gross violation of principles of natural justice. In support of such contention, reliance has been placed on the decision of the Hon'ble Supreme court in the case of S.P.MALHOTRA v. PUNJAB NATIONAL BANK reported in (2013) 6 SCC 251. Further, it is submitted that there is no legal evidence to establish that the petitioner was under the influence of alcohol or that the petitioner was guilty of theft of property of the Bank. 5. Mr. P.R. Raman, learned counsel appearing for the respondent Bank submitted that the Writ Petition is liable to be dismissed on the ground that the petitioner has not availed the statutory remedy of appeal under Chapter XI Regulation 20 of the Canara Bank Service Code. The appeal remedy is an effective alternate remedy and the petitioner ought to have exhausted the appeal remedy instead of approaching this Court. Further, it is submitted that if an appeal is filed by the petitioner pointing out all the issues raised in this Writ Petition, the appellate authority would have definitely examined all aspects as to whether the punishment imposed with cumulative effect for two years was within the scope of the Service Code. Therefore, it is submitted that there is no valid reason for the petitioner to bypass the alternate remedy. Therefore, it is submitted that there is no valid reason for the petitioner to bypass the alternate remedy. Further, it is submitted that the disciplinary authority based on the evidence available, disagreed with the findings of the enquiry officer and he had drawn a tentative finding, holding the petitioner is guilty of two out of three charges and that has been done after considering all relevant material and only after following the procedure the disciplinary authority has passed a reasoned order and the same does not warrant interference by this Court. 6. It is further submitted that the order imposing the punishment of "bringing down to a lower stage in the time scale of pay should specify the time limit of 'bringing down' and should also specify whether such bringing down will not affect the postponing the future increments of pay. For the purpose of the punishment or otherwise it will be invariably in all the cases with cumulative effect. Hence, while imposing the punishment, the disciplinary authority passed the impugned punishment for a period of two years with cumulative effect which will have the effect of bringing down the basic pay of the petitioner before suspension viz. from Rs.5,062.50, which is 3/4th scale of basic Rs.6,750/- to Rs.4,710/-, which is 3/4th scale of basic of Rs.6,280/-, after the punishment with effect from 26.11.2009. With the above submissions, the learned counsel sought for dismissal of the writ petition. 7. In reply, the learned counsel appearing for the petitioner submitted that when the petitioner was clearly able to demonstrate that the impugned punishment is not one of the punishments contemplated under the Service Code, the petitioner was justified in not availing the alternate remedy and the existence of such alternate remedy is not an absolute bar for invoking the jurisdiction of this Court under Article 226of the Constitution of India. In support of such contention, the learned counsel placed reliance on the decision of this Court in the case of Dr. P.LEELA v. DIRECTOR OF COLLEGIATE EDUCATION, MADRAS AND OTHERS reported in 1999 (4) L.L.N. 391. 8. Heard the learned counsels appearing on either side and perused the materials available on record. 9. The learned counsel appearing for the petitioner has primarily challenged the impugned order by raising three issues viz. P.LEELA v. DIRECTOR OF COLLEGIATE EDUCATION, MADRAS AND OTHERS reported in 1999 (4) L.L.N. 391. 8. Heard the learned counsels appearing on either side and perused the materials available on record. 9. The learned counsel appearing for the petitioner has primarily challenged the impugned order by raising three issues viz. (i) that the impugned punishment is not one of the punishment contemplated under the Service Code and therefore the punishment of "bringing down to a lower stage in the scale of pay by two stages for a period of two years with cumulative effect", is without jurisdiction; (ii) that the disciplinary authority while differing with the findings of the enquiry officer did not follow the proper procedure and pre-decided the issue by holding the petitioner is guilty of 2 out of the 3 charges, without affording an opportunity and (iii) that the petitioner cannot be compelled to avail the alternate remedy of appeal as per Regulation XX of the Service Code, since the impugned punishment is without jurisdiction. 10. On the first issue, when we refer to the counter affidavit filed by the respondent Bank, it is seen that they have not denied the fact that under the Service Code, among the punishments which are contemplated, one such punishment is of "bringing down to a lower stage in the scale of pay" and there is no denial to the fact that the words 'with cumulative effect' is not contemplated in the Service Code. In paragraph 12(c) of the counter affidavit, the respondent seeks to explain as to under what circumstances the words 'for a period of two years with cumulative effect' was inserted. 11. Thus, it appears that the respondent Bank seeks to justify their action by stating that the above mentioned expression making the punishment with cumulative effect for two years was inserted, so that the punishment would be specific. Admittedly, the power to issue an order of punishment is traceable to the Service Code and the respondent is not entitled to issue an order of punishment, which is not contemplated under the Rules. 12. In this regard, useful reference may be made to the decision in the case of VIJAY SINGH (supra), relied on by the learned counsel for the petitioner. 12. In this regard, useful reference may be made to the decision in the case of VIJAY SINGH (supra), relied on by the learned counsel for the petitioner. In the said case, the appellant was Sub Inspector of Police and disciplinary proceedings were initiated against him which ultimately resulted in an order dated 8.7.2010, by which the authority directed the integrity certificate for the year 2010 to be withheld. The statutory appeal filed by the appellant was rejected by the appellate authority and the revision petition filed to the revisional authority was also dismissed. Ultimately, the appellant therein approached the Hon'ble Supreme Court contending that the punishment awarded is not provided under the relevant Rule and therefore it is without jurisdiction and liable to be quashed. The Hon'ble Supreme Court after examining the relevant Rules pointed out that the relevant Rule does not empower the disciplinary authority to impose 'any other' major or minor punishment and it is a settled position of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded. 13. Therefore, if the punishment contemplated in the respondent's Service Code is only a reduction to bring down to lower stage of service by two stages, the respondent cannot subsequently insert the expression 'with cumulative effect for a period of two years'. Though the respondent Bank would seek to explain this issue by stating that the expression was inserted so as to specify the penalty, the same could not have been done without there being specific provision under the Service Code. That apart, even in the tentative show cause notice dated 28.10.2009, there is no such proposal to impose the punishment with cumulative effect for a period of two years. Therefore, to that extent, viz. the imposition of punishment for a period of two years with cumulative effect, is held to be without jurisdiction and to that extent the impugned order dated 24.11.2009 is quashed and the issue No.1 is decided in favour of the petitioner. 14. The second issue is as to whether the disciplinary authority has pre-decided the matter, while differing with the findings recorded by the enquiry officer. The petitioner would contend that the disciplinary authority has used the expression that the petitioner "is guilty" of two out of three charges and therefore he has pre-decided the matter without affording an opportunity to the petitioner. 15. The petitioner would contend that the disciplinary authority has used the expression that the petitioner "is guilty" of two out of three charges and therefore he has pre-decided the matter without affording an opportunity to the petitioner. 15. In the case of S.P.MALHOTRA, which was relied on by the learned counsel for the petitioner, it was pointed out that non furnishing of the copy of the reasons recorded for disagreement from the enquiry report causes prejudice to the delinquent and tentative reasons must be recorded for disagreement and the delinquent officer should be given an opportunity to represent before the disciplinary authority to record its findings. 16. On a perusal of the proceedings of the disciplinary authority dated 31.8.2009, it is seen that the disciplinary authority has stated that after holding the enquiry into the charges levelled against the petitioner, the enquiry officer submitted his findings/ report and the said enquiry report was forwarded to the petitioner along with the tentative findings of the disciplinary authority and liberty was granted to the petitioner to submit his representation or submissions on the tentative findings, within seven days from the date of receipt of the said letter. As an enclosure to the letter dated 31.8.2009, the findings of the enquiry officer and the tentative findings of the disciplinary authority dated 31.8.2009 has also been enclosed. The disciplinary authority has given certain reasons to state that Charge Nos. 1 & 2 are proved against the petitioner. 17. On a perusal of the tentative findings, it is seen that the disciplinary authority has extracted the findings of the enquiry officer and the reasons as to why he is not agreeing with the findings of the enquiry officer. It is no doubt true that in the last sentence, the disciplinary authority has used the expression that the petitioner "is guilty" of the allegations in Charge Nos. 1 & 2. But, that expression should not be read in isolation, but, it should be read along with the reasons given by the disciplinary authority for not agreeing with the findings of the enquiry officer and he would state that on account of 'above' reasons, hold the petitioner "guilty" of the allegations. 1 & 2. But, that expression should not be read in isolation, but, it should be read along with the reasons given by the disciplinary authority for not agreeing with the findings of the enquiry officer and he would state that on account of 'above' reasons, hold the petitioner "guilty" of the allegations. Therefore, this Court is of the view that the disciplinary authority has not pre-decided the issue and there is no violation of the procedure and the petitioner has been furnished with the copy of the findings of the enquiry officer, the reasons assigned by the disciplinary authority for disagreement and also afforded an opportunity to submit his objections. Therefore, the second issue raised by the petitioner lacks merit and the same is rejected and decided against the petitioner. 18. While deciding the issue No.1, this Court found that the impugned order of punishment to the extent that it gives cumulative effect to the punishment for a period of two years to be without jurisdiction, in other words the second limb of the punishment imposed alone is without jurisdiction. To that extent, this Court interfered and set aside the same. The justification given by the respondent that the said wordings were inserted and the punishment imposed was 'with cumulative effect' has to be specific, was held to be not acceptable since there is no such punishment contemplated under the Service Code. Therefore, to that extent, the petitioner was justified in approaching this Court by invoking the jurisdiction under Article 226 of the Constitution without availing the statutory appeal remedy. 19. Nevertheless, the punishment which has now to be imposed on the punishment is bringing down to a lower stage in the scale of pay by two stages. That was the proposed penalty in the proceedings penalty (show cause notice), dated 28.10.2009. Admittedly, that punishment is one of the punishment contemplated under the Service Code. In such circumstances, the question of lack of jurisdiction cannot be pleaded for imposing such punishment. In any event it is also not the case of the petitioner that there is no power to impose such punishment which was proposed in the penalty show cause notice dated 28.10.2009 . That apart in the grounds raised in the Writ Petition, there is no challenge to the impugned order on any technical grounds. In any event it is also not the case of the petitioner that there is no power to impose such punishment which was proposed in the penalty show cause notice dated 28.10.2009 . That apart in the grounds raised in the Writ Petition, there is no challenge to the impugned order on any technical grounds. But the same has been challenged on the ground that the disciplinary authority while differing with the enquiry officer has not followed the required procedure and there is no evidence to prove the charge. 20. As regards the challenge to the procedure adopted by the disciplinary authority, while disagreeing with the findings of the enquiry officer, this Court while deciding Issue No.2, has held against the petitioner. As regards the sufficiency of evidence or whether there was any material to prove charge Nos. 1 & 2, this Court exercising jurisdiction under Article 226 of the Constitution of India, cannot go into the said factual issue. Therefore, it is appropriate for the petitioner to avail the alternate remedy of appeal as per Regulation XX of the Service Code, which shall be the proper and appropriate remedy to be availed of. Issue No.III, is accordingly decided. 21. In the result, the Writ Petition is partly allowed and the impugned order of punishment dated 24.11.2009, is set aside in so far it gives effect to the punishment for a period of two years with cumulative effect. The further order of punishment viz. bringing down to a lower stage in the scale of pay by two stages, is not interfered at this juncture and liberty is granted to the petitioner to avail the statutory appeal as contemplated under the Canara Bank Service Code. The contentions raised by the petitioner regarding the procedure adopted by the disciplinary authority while disagreeing with the findings of the enquiry officer is rejected and it is held that the procedure followed by the disciplinary authority while disagreeing with the findings of the enquiry officer is fair and proper and it has not pre-decided the issue and the petitioner had adequate opportunity to putforth his contentions. 22. 22. In the light of the above, the petitioner is directed to file a statutory appeal before the appellate authority as against the order of punishment of bringing down to a lower stage in the scale of pay by two stages, within a period of thirty days from the date of receipt of a copy of this order. If such appeal is preferred within the time stipulated, the appellate authority shall consider the same and decide the appeal on its own merits and in accordance with law independently without in any manner being influenced with any of the observations made in this order, preferably except the findings rendered in para 21, supra, within three months. No costs. Consequently, connected Miscellaneous Petitions are closed.