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2018 DIGILAW 37 (ORI)

Ashok Ku. Ashe v. G. M. , Syndicate Bank

2018-01-08

SUJIT NARAYAN PRASAD

body2018
JUDGMENT : S.N. Prasad, J. This writ petition is under Article 226 and 227 of the Constitution of India, wherein the order dated 16.01.2003 (Annexure-1), the order dated 4.4.2003 (Annexure-2), memo of charge dated 28.11.2002 (Annexure-6) and the communication dated 31.12.2002 (Annexure-8), whereby and where under the petitioner has been given opportunity to appear before the disciplinary authority to defend, are under challenge. 2. Brief facts of the case of the petitioner is that while he was working as Clerk in the Bhubaneswar Branch of the Syndicate Bank has departmentally proceeded for commission of misconduct of willful insubordination, disobedience of lawful and reasonable orders of the management/superior, by not obeying the order to accompany the cash remittance to the currency chest, Bhubaneswar at 6.30 AM on 25.10.2002. The disciplinary authority has issued a memo of charge dated 28.11.2002 causing upon him to submit his written defence reply within 10 days which the petitioner has given due reply vide his communication dated 16.12.2002 stating the reason of commission of disobedience of the orders passed by the Sr. Branch Manager since he was suffering from Ischamic Heart Disease and Essential Hypertension Stage-II and due to such medical ailment, the order has not been complied with which was not insubordination rather i.e. due to the reason beyond his control. Branch Manager since he was suffering from Ischamic Heart Disease and Essential Hypertension Stage-II and due to such medical ailment, the order has not been complied with which was not insubordination rather i.e. due to the reason beyond his control. The disciplinary authority vide communication dated 31.12.2002, whereby and where under the petitioner has been communicated that since the charge has been admitted by him, hence there is no requirement to proceed with the enquiry and exercising the power conferred under Clause- 12 (e) of the Bipartite settlement dated 10.04.2002 which provides the power of inflicting punishment without holding an enquiry and thereby the punishment was proposed to bring him down in the Basic Pay lower by one stage for one year for each of the gross misconduct vide Clause 5(e) and 5(j) of the Bipartite Settlement and both the punishments shall run separately and the petitioner has further been communicated to avail opportunity of personal hearing at the Regional Office, Bhubaneswar on 10.01.2003 at 4.00 P.M. with the specific stipulation therein that the offer of the Bank is valid only if it is voluntary admission of his guilt and appear for personal hearing or else the offer as made above, shall automatically stands withdrawn and the Bank is free to hold enquiry into the charge-sheet and to award appropriate punishment in the event if he found guilty of the charges leveled against him. The disciplinary authority thereafter has passed order on 16.01.2003 (Annexure-1), whereby and where under it has been offered by him that he has admitted his guilt, the matter was brought under Clause-12 (e) of the Bipartite Settlement dated 10.04.2002 without holding the enquiry into the charges by proposing to impose upon him the punishment of “bringing down his basic pay by one stage for one year” for each of the gross misconduct separately vide Clause 5(e) and 5(j) of the Bipartite Settlement and also a personal hearing on the nature of the proposed punishment at Regional Office, Bhubaneswar which was later postponed to 10.01.2003. On 10.01.2003, the employee attended for the personal hearing at R.O., Bhubaneswar along with his defence representative and made both oral and written submissions stating inter alia therein that the punishments proposed are very harsh and requested to reduce the same on humanitarian grounds as he will lose heavily financially and would not repeat such mistakes in future. On 10.01.2003, the employee attended for the personal hearing at R.O., Bhubaneswar along with his defence representative and made both oral and written submissions stating inter alia therein that the punishments proposed are very harsh and requested to reduce the same on humanitarian grounds as he will lose heavily financially and would not repeat such mistakes in future. The disciplinary authority thereafter has imposed the punishment by “bringing down his basic pay by one stage lower for one year” with immediate effect, so far as it relates to willful insubordination, disobedience of lawful and reasonable orders of the management/superior vide Clause 5(e), while “bringing down his Basic pay by one stage lower for one year with immediate effect” for doing any act of prejudicial to the interest of the Bank vide Clause 5 (j) of the Bipartite Settlement with opportunity to file an application against which he has filed an appeal which was disposed of on 4.4.2003, whereby and where under the appellate authority has confirmed the order passed by the disciplinary authority, against these orders, the petitioner is before this Court by way of instant writ petition challenging the same on the ground that the petitioner has not been provided with adequate and sufficient opportunity, the punishment imposed is disproportionate and the authority while passing the order has not taken into consideration his medical ailment. 3. 3. Counter affidavit has been filed by the opposite party-Bank wherein inter alia it has been stated that the petitioner since has admitted his guilt and as such there is no requirement to hold a full fledged enquiry since there is provision under Clause 12(e) of the Bipartite Settlement dated 10.04.2003, whereby and where under the provision has been made that an enquiry need not be held, if the employee makes a voluntary admission of his guilt in reply to the aforesaid show cause notice, however if the employee concerned requests a hearing regarding the nature of punishment, such hearing shall be given, the authorities of the Bank resorting to the provision of Clause 12(e) (ii) of the Bipartite Settlement dated 10.04.2002 has passed the order of punishment by providing opportunity of hearing, as such at this stage, the petitioner cannot take the plea that he has not been afforded by allowing him to participate in the regular enquiry, since he has accepted the decision of the authority dated 31.12.2002 and in pursuance thereof, he has appeared before the disciplinary authority for hearing on the quantum which has been done and thereafter the authority has imposed minor punishment taking a lenient view and as such it is not a case where the punishment can be said to be disproportionate to the offence committed. He submits that the petitioner was working as Clerk in the Balasore Branch of the Bank where it was his duty to obey the order of the Senior Branch Manager being the incumbent and he was also apprised to come with the cash remittance for its deposit in the currency chest, Bhubaneswar at 6.30 A.M. on 25.10.2002. He has taken the plea of the medical ailment that he has taken no leave on this ground even accepting the fact that he was suffering from ailments, he should have made request to the concerned Branch Manager but instead of making request, he has written in Bold letters covering the entire page exhibiting utter disregard to the office discipline and decorum, in the order book leading other staff also not to obey the order of the Sr. Branch Manager. The Sr. Branch Manager. The Sr. Branch Manager, having no option has asked the other officer to accompany for its deposit in the currency chest and thereby the petitioner has acted in gross indiscipline, the authorities of the Bank after taking into consideration the leniency of the matter has imposed minor punishment . He submits that if no punishment will be imposed, it will give wrong message to the other employees and entire discipline of the bank will be jeopardized. He further submits that the nature of the duty of the banking officer/Clerk is different to that of other public servant that deals with public money and the if the cash remittance will not be deposited in the currency chest any mishappenings can be happened by keeping the cash in Branch in case of dacoity etc. and thereby the decision taken by the authority cannot be said to be illegal. He further submits that there is no question of having no jurisdiction with the banking authority while passing the order, the petitioner has accepted the jurisdiction of the authority as conferred under Bipartite Settlement dated 10.04.2002 which empowered the disciplinary authority not to go for enquiry under the provision of Clause 12(e) of the Bipartite Settlement, which the petitioner has accepted in which he has been heard on the point of quantum, hence opportunity has also given to him since he has accepted the guilt and as such he cannot now take the plea of not providing opportunity and regular enquiry. 4. Heard the learned counsel for the parties and on appreciation of the rival submission, it is evident from the material available on record that the petitioner while working as Clerk in the Syndicate Bank, Balasore Branch, has been asked by the Sr. Branch Manager the incumbent of the Branch to accompany with the cash remittance for its deposit in the currency chest at Bhubaneswar. The petitioner has refused to do so by writing in Bold letters in the order Book disobeying the order passed by the Sr. Branch Manager. This action of the petitioner has also instigated the other Clerks not to obey the order of the Sr. Branch Manager and accordingly Sr. Branch Manager of the concerned Branch had asked one of the officer to accompany with him for cash remittance for its deposit in the currency chest at Bhubaneswar. Branch Manager. This action of the petitioner has also instigated the other Clerks not to obey the order of the Sr. Branch Manager and accordingly Sr. Branch Manager of the concerned Branch had asked one of the officer to accompany with him for cash remittance for its deposit in the currency chest at Bhubaneswar. It is evident from the material available on record that a Bipartite agreement has been entered into on 10.04.2002 dealing with the service conditions and discipline and appeal procedure in which the procedure for inflicting minor/major punishment has been imposed. The misconduct has also been defined under the heading of willful insubordination or disobedience of any lawful and reasonable order of the management or of a superior under Clause-5(e) and Clause 5 (j) stipulates that doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss. 5. 5. The petitioner has admitted the guilt by saying therein that since he was suffering from acute cardiac ailment and Doctor has advised not to undertake any journey, as such he asked excused from the disciplinary authority not to repeat in future, the disciplinary authority by resorting to the provision of Clause 12(e) of the Bipartite settlement dated 10.04.2002, which speaks for holding no enquiry in case guilt has been admitted but however on the point of quantum, the opportunity is provided to the concerned employee, for ready reference, the said provision of the Bipartite Agreement is being reproduced herein below:- “12(e) An enquiry need not be held if: (i) The bank has issued a show cause notice to the employee advising him of the misconduct and the punishment for which he may be liable for such misconduct; (ii) The employee makes a voluntary admission of his guilt in reply to the aforesaid show cause notice; and (iii) The misconduct is such that even if proved the bank does not intend to award the punishment of discharge or However, if the employee concerned requests a hearing regarding the nature of punishment, such a hearing shall be given.” It is evident from the show cause reply/defence reply of the petitioner that he has admitted his guilt and thereby the authorities has resorted to the provision of Clause 12(e) (ii) with the proposed punishment to impose of bringing down his Basic Pay one stage lower for a period of one year for each of the misconduct separately vide Clause 5(e) and 5(j), the petitioner has been provided with the opportunity of personal hearing on the point of quantum of punishment as per the provision of Clause 12(e) of the Bipartite Settlement, the petitioner has been heard at length by the disciplinary authority and thereafter the disciplinary authority, by taking lenient view, has not imposed punishment of bringing down the basic pay for one stage lower for one year for each of the gross misconduct separately vide clause 5(e) and 5(j) rather both the punishments has been directed to run concurrently, hence a lenient view has been taken with opportunity to file appeal before the appellate authority. 6. 6. The petitioner has filed an appeal before the appellate authority, the appellate authority has declined to interfere with the decision of the disciplinary authority, taking into consideration these action of the opposite parties, the petitioner has filed the instant writ petition challenging these orders. 6. The petitioner has taken ground that he has not been accorded adequate and sufficient opportunity of hearing but this ground is not available to him since he has admitted the guilt by stating in the show cause reply not to repeat in future assigning the reason of commission of the said offence, as such the authority has decided to proceed by invoking the jurisdiction conferred to them under clause 12(e) of the Bipartite Settlement dated 10.04.2002 with liberty to the petitioner to hear before the disciplinary authority on the quantum of punishment, since the petitioner has admitted his guilt and it is settled that in case of admission of guilt there is no requirement to conduct an enquiry reason being that the enquiry is directed to be conducted to know the fact, in case of dispute of the fact but when the fact is not in dispute, there is no reason to conduct any enquiry. Moreover, in case of guilt having been admitted since there is specific provision under Clause 12(e), which the banking authority has invoked in the instance case, hence at this stage the petitioner has got no right to raise this point of not following due procedure by initiating regular departmental proceeding. 7. The petitioner has taken other ground that the punishment imposed is disproportionate to the offence committed but that is also having no substance for the reason that the petitioner while working as Clerk was duty bound to obey the order passed by his immediate higher authority for smooth functioning of the Bank. It is not in dispute that the bank service is of much importance since the public money is lying there and it is the usual practice of the bank whatever cash is being deposited by customer, it is to be deposited by way of cash remittance in the currency chest, the incumbent of the Branch being the head of the Branch is authorized to ask any Clerical staff or any Officer to perform duties for the smooth functioning of the bank in order to avoid any causalities. It is also to bear in mind that if the bank remittance will not be deposited in the concerned currency chest and it will remain in the concerned Branch, there might be likelihood of commission of any causalities of any dacoity or any mishappenings and to avoid this, the system has been evolved by the R.B.I. to deposit the excess cash in the currency chest and the Branch Manager in observance of the said provision has asked the petitioner to accompany the cash remittance for its deposit in the currency chest, which the petitioner has refused on the garb of medical ailment, since he is suffering from cardiac disease. 8. It is evident from the material available on record that the petitioner has never brought this fact into the knowledge of the concerned Branch Manager neither he has taken any leave on that ground rather for the first time he has taken the ground of medical ailment, further even accepting that he was suffering from medical ailment then he should have made polite request to the concerned Branch Manager, instead of writing in the order book in Bold letters that let the other staff to follow the same and none of the Clerk posted in the said Branch has accompanied the bank remittance for its deposit in the currency chest, which ultimately led the concerned Branch Manager to ask his one of the Officer to accompany the bank remittance for its deposit in the currency chest, thereby the petitioner has committed gross misconduct of willful insubordination, disobedience of lawful and reasonable and act prejudicial to the interest of the Bank which comes under the fold of misconduct as defined under clause 5(e) and 5(j) of the Bipartite Settlement. The proposed punishment was to bring him down one stage lower for one year for each of the offence committed i.e., under Clause 5(e) and 5(j) but the disciplinary authority while hearing the matter on the point of quantum, has reduced it and directed to run the punishment of lowering down the basic pay for one year concurrently, hence lenience has also been shown by the disciplinary authority. The petitioner has also filed an appeal, even the appellate authority has taken note of all the aspect of the matter but he has declined to interfere taking into consideration the serious nature of allegation. 9. The petitioner has also filed an appeal, even the appellate authority has taken note of all the aspect of the matter but he has declined to interfere taking into consideration the serious nature of allegation. 9. It is settled that the person working under the Bank is supposed to work with utmost sincerity and diligently and if such thing will be allowed to happen, the entire Banking system will be failed, keeping this fact into consideration, the disciplinary authority since has imposed lesser punishment which is minor in nature, this Court sitting under Article 226 of the Constitution of India is not supposed to interfere exercising the power of judicial review by assuming the power of appellate court since the finding is based upon the admission of the petitioner. 10. Taking into consideration the entire facts and circumstances in its entirety, this Court feels that it is not a case where the extra ordinary jurisdiction conferred to this Court sitting under Article 226 of the Constitution of India is to be exercised by exercising the power of judicial review. In view thereof, the writ petition fails and is dismissed.