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2004 Supreme(Guj) 437
Gujarat High Court
Judgename :K.S.JHAVERI
N.R.ZALA - Appellant
Versus
BANK OF INDIA - Respondent
S.C.A.4693 of 2003
Decided On : 07/21/2004
Headnote:
Constitution of India - Article 46, 38, 39 (b) - Petition the petitioner has challenged the order dated passed by the Disciplinary authority of the respondent Bank whereby the disciplinary imposed a penalty of discharge of the petitioner from the services with superannuation benefits i. e. pension and/or provident fund and gratuity as would be due otherwise under the Rules and Regulations prevalent as on the date and without disqualification from future employment in terms of Clause of the memorandum of Settlement dated - Petitioner has also challenged the order dated passed by the Appellate Authority whereby the authority has confirmed the order passed by the Disciplinary Authority - Petitioner was serving Branch as Cashier-cum-Accounts Clerk - He was served with a memorandum dated informing him that it was decided to initiate disciplinary action against the petitioner for the acts of misconduct alleged to have been committed by him during the course of his duties. The inquiry was fixed on on that day the petitioner did not remain present - Inquiry was adjourned to the petitioner sought time to make arrangement for defence representative - Matter was therefore kept the Inquiry Officer completed the proceedings and submitted his report to Disciplinary authority on holding the petitioner guilty for the charges levelled against him - Inquiry Officer held that the charge of the employee doing any act prejudicial to the interest of the bank or gross negligence involving or likely to involve the bank in serious loss as levelled against the CSE stands proved against him thereafter a show-cause notice was issued to the petitioner asking to show cause as to why punishment of discharging from the services should not be imposed upon him. The petitioner submitted his reply - Held, Court in the case of Chairman and managing Director United Commercial Bank Vs. , reported - In that case in the case of misconduct the Supreme Court has narrowed down the compass for judicial review. Paras 11 and 12 of the said decision read as under common threat running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator - Scope of judicial review is limited to the deficiency in decision making process and not the decision - To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal there is no scope for interference to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof - In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed - I am of the opinion that the petitioner has misused his position as a bank employee and has tried to take advantage of his position to avoid criminal proceedings under Negotiable instruments whereby public at large viz. the society is the sufferer the petitioner has also not shown from the record that no sufficient opportunity was given to him in the proceedings - On the contrary from Inquiry Report it is clear that sufficient opportunity was given to the petitioner - Penalty imposed upon the petitioner is just and proper and no interference is called for in the present petition mentioned that the petitioner is out of job - Petition should have dismissed -
( 1 ) IN this petition the petitioner has challenged the order dated 29. 11. 2002 passed by the Disciplinary authority of the respondent Bank, whereby the disciplinary imposed a penalty of discharge of the petitioner from the services with superannuation benefits i. e. pension and/or provident fund and gratuity as would be due otherwise under the Rules and Regulations prevalent as on the date and without disqualification from future employment in terms of Clause 6 (d) of the memorandum of Settlement dated 10. 4. 2002. The petitioner has also challenged the order dated 4. 3. 2003 passed by the Appellate Authority whereby the authority has confirmed the order passed by the Disciplinary Authority.
( 2 ) THE petitioner was serving at INS Valsura Branch as Cashier-cum-Accounts Clerk. He was served with a memorandum dated 9th September 2002 informing him that it was decided to initiate disciplinary action against the petitioner for the acts of misconduct alleged to have been committed by him during the course of his duties. The inquiry was fixed on 23. 9. 2002. However, on that day the petitioner did not remain present. Therefore the inquiry was adjourned to 25. 9. 2002. On 25. 9. 2002 the petitioner sought time to make arrangement for defence representative. The matter was therefore kept on 27. 9. 2002. On 27. 9. 2002 the Inquiry Officer completed the proceedings and submitted his report to Disciplinary authority on 11. 10. 2002 holding the petitioner guilty for the charges levelled against him. The Inquiry Officer held that the charge of the employee doing any act prejudicial to the interest of the bank or gross negligence involving or likely to involve the bank in serious loss, as levelled against the CSE, stands proved against him. 2. 1 thereafter on 7. 11. 2002 a show-cause notice was issued to the petitioner asking to show cause as to why punishment of discharging from the services should not be imposed upon him. The petitioner submitted his reply on 21. 11. 2002. Ultimately the Disciplinary Authority passed the order dated 29. 11. 2002 discharging the petitioner from service as mentioned above. The appeal filed by the petitioner was dismissed by the Appellate Authority by order dated 4. 3. 2003. Hence the petitioner has approached this Court.
( 3 ) MR. Soni for the petitioner has submitted that the inquiry conducted was in violation of principles of natural justice inasmuch as he was not given sufficient opportunity to meet with the allegations and to defend his case. He was not given sufficient time to prepare himself. 3. 1 the second argument of Mr. Soni is that this is not a misconduct as defined under the Rules and therefore the petitioner could not have been discharged from the bank. 3. 2 mr. Soni submitted that the conduct which is shown by the petitioner could have been done by any other employee or customer and therefore it cannot be said that the said conduct is in any manner prejudicial to the bank. 3. 3 lastly Mr. Soni has submitted that assuming that even if the misconduct is proved, the penalty imposed is on the higher side.
( 4 ) MR. Soni has relied upon a decision in the case of Gopalakrishna Prabhu Vs. Central Bank, reported in 1991 (1) KLT 383 wherein in para 2 of the said judgement the Kerala High Court considered the same regulations and has held that the act alleged therein was not a misconduct. 4. 1 in the present case the findings of the Inquiry officer are of very serious nature. In the report of the inquiry Officer it is held as under: "iv) That balance of Rs. 217/- prevailed in the said A/c from 6. 4. 02 till cash of Rs. 41,500/- was deposited by the CSE on 11. 6. 02 i. e. the day on which he requested for stop payment of the above Ch. and the very next day i. e. on 12. 6. 02 the balance was restored to Rs. 217/- when CSE withdrew entire amount of cash deposited by him in the a/c the previous day. On both the days i. e. on 11. 6. 2002 and 12. 6. 2002, the CSE was on leave on account o
