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2018 DIGILAW 1192 (GUJ)

G. N. KAMOL v. STATE BANK OF INDIA

2018-10-11

MOHINDER PAL

body2018
JUDGMENT MOHINDER PAL, J. 1. The petitioner challenges the order of punishment date 31.8.2006 and the order dated 3.1.2007 passed in appeal, vide which, his service came to be terminated after departmental inquiry. 2. The facts giving rise to this petition are that the petitioner joined the service of respondent- bank as cashier in the year 1983, and later on, promoted as Senior Assistant. 3. On 11.7.2005, he was served with the chargesheet for misconduct while working as Senior Assistant. He submitted his reply to the chargesheet, however, vide order dated 16.8.2005, an Inquiry Officer was appointed to look into the charges. The Inquiry Officer submitted his report on 30.11.2005, wherein, it was concluded that the charges levelled against the petitioner are proved. Copy of the said inquiry report was forwarded to the petitioner along with communication dated 14.12.2005. Thereafter, a show-cause notice has been served upon the petitioner on 17.3.2005, wherein, the petitioner was called upon to show cause as to why the petitioner be not dismissed without notice. The petitioner responded to the said notice on 10.4.2006. Thereafter, the respondent bank passed tentative order of dismissal, and ultimately, petitioner has been dismissed vide order dated 31.8.2006. The appeal preferred by the petitioner was also dismissed. 4. After notice, the respondents have contested this petition by filing reply, stating therein that, after receipt of notice by the petitioner, he has admitted his guilt of committing the misconduct, and therefore, on this ground alone, the petition requires to be rejected. The petitioner has been given full opportunity to show-cause and departmental inquiry was conducted against the petitioner by providing full opportunity to put-forward his defence and to provide documentary evidence in support thereof. The petitioner however, after admitting his guilt by way of communications dated 27.7.2004 and 25.11.2004 has approached this Court challenging the inquiry proceedings by not placing on record the relevant documents. The petitioner has committed a fraud for an amount of Rs. 52,000/- which has been recovered after admission of guilt, as he had fraudulently lodged the claim by altering medical bills. Once the petitioner has accepted the guilt by way of explanation, there cannot be any injustice being committed to the petitioner. Relying upon these pleadings, they have prayed for dismissal of the petition. 5. Learned counsel Mr. Vyas for the petitioner has raised two folds arguments. Once the petitioner has accepted the guilt by way of explanation, there cannot be any injustice being committed to the petitioner. Relying upon these pleadings, they have prayed for dismissal of the petition. 5. Learned counsel Mr. Vyas for the petitioner has raised two folds arguments. It has been contended that the inquiry proceedings against the petitioner are biased, as on 30.9.2005, the petitioner appeared before the Inquiry Officer and submitted a request letter, whereby, the Inquiry Officer was requested to allow the petitioner to be represented by Shri H.A. Acharya. On the same day, the Inquiry Officer proceeded with the inquiry, and proceedings were also recorded. It is evident that on the first day the inquiry was completed, that too, to the detriment of the petitioner, in asmuch as the petitioner was made to admit the documents which were tendered against the petitioner. The petitioner being a layman was not in a position to understand the implications of admission of the documents. As the petitioner has not been given an opportunity to defend through his friend in inquiry proceedings, the action of Inquiry Officer in compelling the petitioner to admit the documents, as aforesaid, smacks of lack of bonafide on the part of the Inquiry Officer. 6. Secondly, it has been argued that the punishment of dismissal from service imposed upon the petitioner was disproportionate to the guilt of the petitioner. It has been submitted that the wife of the petitioner was suffering from breast cancer and was under treatment. The petitioner was not going to become rich by tempering the figure in the medical bills submitted to the respondents. The wife of the petitioner has ultimately died of cancer, and under these circumstances, a lenient view was required to be taken. The punishment of dismissal from service was required to be substituted by a lesser punishment. In support of his arguments, he has relied upon the decision of Hon'ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Ltd. & Another. v. Mukul Kumar Choudhuri & Ors, (2010) AIR SC 75. 7. The arguments raised by Mr. Vyas learned counsel for the petitioner, are controverted by Mr. Nagesh Sood learned counsel appearing for the respondents, on the ground that the charges levelled against the petitioner were serious in nature. He was serving in a bank and holding responsible job of cashier at the relevant time. 7. The arguments raised by Mr. Vyas learned counsel for the petitioner, are controverted by Mr. Nagesh Sood learned counsel appearing for the respondents, on the ground that the charges levelled against the petitioner were serious in nature. He was serving in a bank and holding responsible job of cashier at the relevant time. Once the petitioner has admitted his guilt by way of communications dated 27.7.2004 and 25.11.2004, challenging the inquiry proceedings without disclosing true facts was an attempt to mislead the Court. The amount of Rs. 52000/ was recovered from the petitioner after admission of guilt of fraudulently lodging claims by altering medical bills. While arguing regarding inquiry proceedings, it has been submitted that as per provisions laid down under the memorandum of Settlement dated 10.4.2002 which governs the procedure to be followed while taking disciplinary action against the workman, categorically provides that the inquiry need not be held if the employee makes a voluntary admission of his guilt in response to the show cause notice issued against any misconduct committed by him. The said provision is made in clause 12(e)(ii) and therefore, when there is express provision providing for not holding an inquiry in the event of the delinquent having admitting his guilt/charges levelled against him. The forged medical bills submitted by the petitioner are duly proved and exhibited in the inquiry proceedings. Under these circumstances, the petition was liable to fail. 8. Mr. Nagesh Sood learned counsel has further argued that the petitioner was dealing with public money for carrying on the banking business, and therefore, there was trust reposed on the petitioner which created fiduciary relationship between the bank and its employees. Looking to the conduct of the petitioner, whereby, the petitioner has fraudulently lodged medical claim by altering medical bills for an amount of Rs. 52000/-, the respondent-bank has lost confidence in the petitioner, and therefore, continuing him in the service would adversely affect the work of the bank. He has also referred some of the decisions of the Apex Court, wherein, in a case where an employee has defrauded the employer, dismissal is the only punishment which could be awarded against the delinquent. 9. This Court has considered the submissions made by both the sides. Wife of the petitioner underwent treatment of breast cancer. The petitioner submitted the bills to the respondent-bank for medical reimbursement of the expenses incurred on the treatment. 9. This Court has considered the submissions made by both the sides. Wife of the petitioner underwent treatment of breast cancer. The petitioner submitted the bills to the respondent-bank for medical reimbursement of the expenses incurred on the treatment. On 11.7.2005, a charge-sheet came to be served upon the petitioner with the allegations that while he was working as Senior Assistant at Godhra Branch, certain acts of 'Gross Misconduct' are reported against him. On being prima-facie satisfied that the petitioner has rendered himself liable for disciplinary action for 'Gross Misconduct', as such, he was served with charge-sheet as per clause 5(j) & 5 (m) of memorandum of Settlement on Disciplinary Action. The charges were accompanied by the documents in the form of medical bills submitted by the petitioner. Perusal of the statement showing the details of fraudulently medical bills submitted by the petitioner shows that the petitioner has tempered with the medical bills on various occasions. In total, he altered medical bills to the tune of Rs. 52,000/- which were sanctioned by the appropriate authority and reimbursed to the petitioner. Later on, after receipt of show-cause notice, petitioner submitted his reply, wherein, he admitted his guilt. Reply submitted by the petitioner is reproduced as under: "With reference to your charge sheet No.BZO/DP/R-I/114 dated 11.7.2005 served to me on 15.7.2005, I most humbly request your good self to consider sympathetically my earlier replies dated 27.7.2004 and 25.11.2004 your letters No. AGM/I/DC/224 dated 19.7.2004 and AGM/19/387 dated 22.11.2004, in my captioned letters I have narrated the factual position and the circumstances under which I was passing through and the people on whom I have to depend while my wife was in hospital. As I have stated in my letter dated 25.11.2004, during the USG examination, instead of my wife they have written the name of my daughter as she was accompanying her. Sir, I assure you that I will be faithful to my Institution and work with honesty and to the satisfaction of my superior. I request your good self to take a lenient view towards the whole episode looking to my family circumstances and bestow mercy on me and my family members and oblige." 10. Finding fault with the inquiry proceedings, learned counsel for the petitioner has submitted that the petitioner was not afforded sufficient opportunity at the inquiry proceedings to defend his case. I request your good self to take a lenient view towards the whole episode looking to my family circumstances and bestow mercy on me and my family members and oblige." 10. Finding fault with the inquiry proceedings, learned counsel for the petitioner has submitted that the petitioner was not afforded sufficient opportunity at the inquiry proceedings to defend his case. The documents relied upon by the respondents has been submitted on the first day of the inquiry proceedings. The petitioner has requested for assistance of fellow employee and before such assistance could be availed, the documents have been exhibited and in this way, the inquiry is vitiated. 11. Learned counsel for the petitioner has referred to a decision of the Hon'ble Apex Court in the case of Chairman-cum-Managing Director, Coal India Ltd. & Another., v. Mukul Kumar Choudhuri and Others., (2010) AIR SC 75. In this judgment, doctrine of proportionality in awarding punishment has been explained. Apex Court has held that the doctrine of proportionality is well recognized concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in manner which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review. One of the tests to be applied while dealing with the question of quantum of punishment would be; would any reasonable employer have imposed such punishment in like circumstances ? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment. 12. This Court has considered the aforementioned judgment passed by the Hon'ble Apex Court. It could be seen that in this case, the delinquent has disobeyed the order of the higher authority or violated the Company's Rules and Regulations and as a mater of facts, he sent his resignation which was not accepted, the order of removal cannot be held to be justified. 13. This Court is of the firmed view that the charges levelled against the petitioner in the case in hand are much serious in nature. 13. This Court is of the firmed view that the charges levelled against the petitioner in the case in hand are much serious in nature. As has been held in various decisions of the Court, the scope of interference by the Court is limited and restricted to exceptional cases of hardship. In the present case, the petitioner was holding the post of confidence and dealing with cash. Misconduct in such cases cannot be taken lightly and requires to be dealt with iron hands. Where a person deals with the public money and is engaged in the financial transaction or acts in a fiduciary capacity, the highest degree of integrity and trustworthiness is a must and unexceptionable. Looking to the documents and tempering, the punishment imposed by the respondents is proportionate to the guilt of the accused. 14. In view of the foregoing discussion, this petition being devoid of any merits, is dismissed. Rule is discharged.