Narain Singh vs The State Bank Of Patiyala Thru ...
2018 Latest Caselaw 1700 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

      	                 A. F. R. 
 

 
Court No. - 28
 

 
Case :- WRIT - A No. - 492 of 2009
 

 
Petitioner :- Narain Singh
 
Respondent :- The State Bank Of Patiyala Thru Managing Director & Others
 
Counsel for Petitioner :- Rahul Sahai,M.P. Sarraf,Manish Kumar Nigam
 
Counsel for Respondent :- M.P. Singh,S.C.
 

 
Hon'ble Ajay Bhanot,J.

1. The petitioner was appointed as a Watchman-cum-Peon in the respondent Bank on 30.10.1985. On certain allegations of misconduct, a chargesheet was drawn up against the petitioner on 27.04.1993. The charges laid out against the petitioner in the chargesheet asserted that the petitioner had shouted at and abused one P. P. Wadhwa, Branch Manager in the banking hall. He used "dirty language". He also physically assaulted the Branch Manager, Sri P. P. Wadhwa.

2. A departmental enquiry was caused to be conducted into aforesaid charges of misconduct. The proceeding was conducted under Clause 19.5(C & E) of the Bipartite Settlement, 1966 read with the Sastry/Desai Awards and subsequent settlements.

3. The departmental enquiry indicted the petitioner of the charges against him. A show-cause notice was issued to the petitioner on 07.12.1995 asking him to show-cause as to why penalty of dismissal in terms of Clause 19.6 (a) of the Bipartite Settlement, 1966 read with the provisions of Sastry/Desai Award be not imposed upon him. The disciplinary authority in the show-cause notice recorded tentative agreement with the findings of the enquiry officer. The petitioner submitted a reply to the show-cause notice and refuted the contents therein.

4. Upon consideration of the reply of the petitioner, the competent authority by order dated 21.08.1996 imposed the following punishment upon the petitioner:-

"stoppage of five annual grade increments falling due to you on 1.11.1993, 1.11.1994, 1.11.1995, 1.11.1996 and 1.11.1997 with future effect in terms of clause 19.6(d) of Bipartite Settlement, 1966 read with the provisions of Sastry/Desai Awards and subsequent Bipartite Settlements. The period you remained under suspension will not be treated as period spent on duty."

5. The petitioner has assailed the order of punishment dated 21.08.1996 in the instant writ petition.

6. I have heard Sri Prashant Sharma, learned counsel holding brief of Sri Manish Kumar Nigam, learned counsel for the petitioner and Sri M. P. Sarraf, learned counsel for the respondent-Bank. Sri M. P. Sarraf has waived the right to file a counter affidavit on behalf of the respondent-bank.

7. Submission advanced on behalf of the respondent-Bank that there is an alternative remedy available to the petitioner shall be dealt with first. The petitioner had earlier approached this Court by filing a writ petition. This Court had remanded the petitioner to avail the alternative remedy by order dated 31.03.2008 entered in C.M.W.P. No. 31677 of 1996 (Narayan Singh Vs. State Bank of Patiyala and others). In that case, a counter affidavit was filed in which an objection was taken to the maintainability of the petition on the ground of availability of alternative remedy. The operative portion of the order is reproduced hereinunder:-

"A counter affidavit has been filed in which an objection was taken to the maintainability of this writ petition on account of availability of alternative remedy.

The petitioner has retired in the year 2004. The disputed question of fact, which has been agitated, cannot be decided in this petition.

The writ petition is dismissed on the ground of alternative remedy. It is left open to the petitioner to approach appropriate forum available to him."

8. The petitioner in pursuance of the said order passed by this Court on 31.03.2008 had instituted proceedings under the Industrial Disputes Act, 1947. The authority under the Industrial Disputes Act, 1947 required the petitioner to approach the Labour Court through the workers' Union. The petitioner has stated that he retired from service in the year 2004 as such he was not a member of Union. Hence, no alternative remedy is available to the petitioner under the Industrial Disputes Act, 1947. These averments in the writ petition are not traversed. As recorded in the earlier part of the judgement, Sri M.P. Sarraf, learned counsel has waived the right of the bank to file a counter affidavit. Nothing has been shown to the contrary by the learned counsel for the respondent bank. The assertion of the petitioner is upheld. He has already availed the alternative remedy which was available at the relevant point of time.

9. Moreover, the interest of justice requires that the parties arrive at a litigative terminus. The petitioner cannot be sent from one forum to another on every successive occasion particularly when he retired in the year 2004. It is well settled that the rejection of a petition on the ground of alternative remedy is in exercise of discretion of the Court. The discretion has to be exercised to meet the ends of justice and not to pay servitude to procedure. The ends of justice will be served by deciding the petition on merits and not by remitting the petitioner to an alternative remedy. In any case, no such remedy has been pointed out at this stage by Sri M. P. Sarraf, learned counsel for the respondent-Bank. He submits that a departmental appeal can be filed against the order which was passed in the year, 1996. However, he could not point out that the period of limitation for filing such appeal nor did he produce any provision of appeal. The matter shall now be decided on merits.

10. Learned counsel for the petitioner could not point out any infirmity in the enquiry proceedings which would warrant any interference. The enquiry proceedings have not been brought in the record. Consequently, the enquiry against the petitioner is held as legal and valid.

11. The only question which was then pressed, was the validity of the punishment order.

12. Two submissions were raised in this regard. Firstly, it was contended that the punishment was disproportionate to the misconduct the petitioner was charged with.

13. The charges laid out against the petitioner in the chargesheet were of a grave in nature. The petitioner was indicted by the departmental enquiry. The penalty imposed upon the petitioner, insofar as, it is relatable to Clause 19.6(g) of the Bipartite Settlement, 1966 read with the provisions of Sastry/Desai Awards is not disproportionate to the misconduct which stood proved in the enquiry proceedings.

14. A disciplinary authority while imposing punishment upon a charged official indicted by an enquiry, has to correlate and balance the imperatives of institutional discipline with the demands of individual rights. Too mild a punishment will not be conducive to institutional discipline. Too harsh a punishment will not be consistent with norms of justice. Only a just employer can ensure an efficient employee. The disciplinary and departmental authorities best understand the needs of administration, and are best positioned to make a judgement on the quantum of punishment. The courts cannot substitute their decision on the punishment over the judgement of the departmental authorities. The judicial authority in point clearly restricts the jurisdiction of the courts to interfere in matters of quantum of punishment. The court can interfere in the punishment imposed upon a charged official only if the punishment is disproportionate to the proven misconduct to an extent that it is inhumanly harsh and it shocks the conscience of the court. As found earlier, the punishment imposed in the instant case achieves the balance in the competing requirements institutional discipline and individual rights. The punishment imposed upon the petitioner insofar as it is relatable to clause 19.6 (d) of Bipartite Settlement, 1966 read with the provisions of Sastry/Desai Awards is proportional to the proven misconduct.

15. At this stage, it would be apposite to fortify the findings with a review of authorities in point. The "doctrine of proportionality" was introduced and embedded in the administrative law of our country by the Hon'ble Supreme Court in Ranjt Thakur Versus Union of India, reported at (1987) 4 SCC 611. The Hon'ble Supreme Court in Ranjit Thakur held thus:

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. "

16. The law laid down in Ranjit Thakur (supra) was explained by the Hon'ble Supreme Court in the case of Union of India Versus R. K. Sharma, reported at (2001) 9 SCC 592. The Hon'ble Supreme Court in R. K. Sharma (supra) clearly marked out the limits of the doctrine of proportionality in reviewing the punishment meted out to an employee indicted by an enquiry, in the following terms:

"In our view, the observation in Ranjit Thakur's case (supra) extracted above, have been misunderstood. In that case the facts were such that they disclosed a bias on the part of the Commanding Officer. In that case the Appellant Ranjit Thakur had fallen out of favour of the Commanding Officer because he had complained against the Commanding Officer. For making such a complaint the Commanding Officer had sentenced him to 28 days rigorous imprisonment. While he was serving the sentence he was served with another charge-sheet which read as follows:

"Accused 1429055-M Signalman Ranjit Thakur of 4 Corps Operating Signal Regiment is charged with -

Army Act Disobeying lawful command given by his Section 41(2) superior officer, In that he, At 15.30 hrs on May 29, 1985 when ordered by JC 106251-P Sub Ram Singh, the orderly Officer of the same Regiment to eat his food, did not so."

On such a ridiculous charge rigorous imprisonment of one year was imposed. He was then dismissed from service, with the added disqualification of being declared unfit for any future civil employment. It was on such gross facts that this Court made the observations quoted above and held that the punishment was so strikingly disproportionate that it called for interference. The above observations are not to be taken to mean that a court can, while exercising powers under Article 226 or 227 and/or under Article 32, interfere with the punishment because it considers the punishment to be disproportionate. It is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review. Merely on compassionate grounds a court should not interfere."

17. The proposition of law stated in R. K. Sharma (supra) was approved and followed by the Hon'ble Supreme Court in the case of Union of India and others Versus Bodupalli Gopalaswami reported at (2011) 13 SCC by holding thus:

"In Union of India v. R.K. Sharma [(2001) 9 SCC 592 : 2002 SCC (Cri) 767], this Court explained the observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] . It clarified that in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] , the charge was ridiculous, the punishment was harsh and disproportionate and it was on such gross facts that this Court had held that the punishment was so strikingly disproportionate that it called for interference; and the said observations in Ranjit Thakur [(1987) 4 SCC 611 : 1988 SCC (L&S) 1 : (1987) 5 ATC 113] are not to be taken to mean that a court can, while exercising the power of judicial review, interfere with the punishment merely because it considers the punishment to be disproportionate. It was held that only in extreme cases, which on their face, show perversity or irrationality, there could be judicial review and merely on compassionate grounds, courts should not interfere. In this background, we may examine the third question."

18. Sri Prashant Sharma, learned counsel for the petitioner, next contends that the punishment imposed upon the petitioner, insofar as, it does not treat the period of suspension undergone by the petitioner as period spent on duty has penal consequences. The disciplinary authority had exceeded the lawful power vested by virtue of Clause 19.6 (a) of the Bipartite Settlement, 1966 read with the provision of Sastry/Desai Awards by imposing the said penalty. The punishment has been imposed in violation of principles of natural justice.

19. The show-cause notice dated 7.12.1995 proposed to impose a penalty strictly in terms of Clause 19.6(a) of the Bipartite Settlement, 1966. The authority did not notice the petitioner on any other penalty. Clause 19.6(d) of the Bipartite Settlement, 1966 read with the provision of Sastry/Desai Awards is extracted hereinunder:

"19.6. An employee found guilty of gross misconduct may:

(a). be dismissed without notice; or

(b). be warned or censured, or have an adverse remark entered against him; or

(c). be fined; or

(d). have his increment stopped; or

(e). have his misconduct condoned and be merely discharged."

20. The impugned order dated 21.8.1996 imposes the penalty under clause 19.6(d) of the Bipartite Settlement, 1966 read with the provision of Sastry/Desai Awards but also provides that the period of suspension of the petitioner will not be treated as period spent on duty. The latter part of the order is penal in nature as it visits the petitioner with adverse consequences.

21. The learned counsel for the petitioner has confined his submission to assail the aforesaid latter part of the punishment order dated 21.8.1996. Admittedly, the aforesaid part of the penalty of the order dated 21.8.1996 is not relatable to Clause 19.6 of the Bipartite Settlement, 1966. Clause 19.6 defines but also restricts the nature of punishment which the disciplinary authority can impose upon an employee found guilty of misconduct. The disciplinary authority cannot travel beyond the power conferred upon it by law. The order dated 21.08.1996, insofar as, it provides that the period during which the petitioner remained under suspension shall not be treated as period spent on duty, is in excess of the jurisdiction conferred upon the disciplinary authority by Clause 19.6 of the Bipartite Settlement, 1966 read with the provision of Sastry/Desai Awards. Clearly, the aforesaid portion of the order is beyond the jurisdiction vested by law in the authority.

22. The show-cause notice dated 7.12.1995 was only restricted to a proposed penalty in terms of Clause 19.6 (a) of the Bipartite Settlement, 1966. No show-cause notice was issued to the petitioner alerting him to a proposed penalty of the period of suspension not being treated as period spent on duty. No counter affidavit has been filed and the respondents have waived their right to file a counter affidavit. Consequently, none of the averments made in the writ petition have been traversed or refuted. Nothing to the contrary was pointed out by the counsel for the respondents from the records.

23. The averments in the writ petition are taken as admitted. Moreover, the show-cause notice as well as the tenor of the order imposing the penalty also clearly establish the fact that the petitioner was not afforded any opportunity of hearing prior to imposing the penalty of not treating the period of suspension as period spent on duty.

24. Consequently, this Court finds that no notice or opportunity of hearing was provided to the petitioner prior to imposing the penalty of not treating the period of suspension as period spent on duty.

25. The respondent authority travelled beyond the show-cause notice while passing the offending order. The said punishment of not treating the period of suspension as period spent on duty has been clearly made in violation of principles of natural justice. The aforesaid portion of the order is arbitrary, illegal and unsustainable.

26. The stage is now set to reinforce the findings and propositions in the earlier part of the judgement by case law in point. The Hon'ble Supreme Court was faced with the matter relating to an employee who was reinstated in service after suspension. The question and the manner of grant of pay and allowances for the period of suspension and refusal to treat the period of suspension as period spent on duty, squarely came up for consideration before the Hon'ble Supreme Court in the case of Depot Manager, Andhra Pradesh State Road Transport Corporation, Hanumakonda Vs. V. Venkateswarula and Ors. reported in 1994 Supp(2) SCC 191. The Hon'ble Supreme Court laid down the law in the following terms:

"The competent authority is bound to examine each case in terms of Regulations 21(1) or 21(2) and in case it comes to the conclusion that the employee concern is not entitled to full salary for the period of suspension then the authority has to pass a reasoned order after affording an opportunity to the employee concern. In other words it is open to the competent authority to withhold payment of full salary for the suspension period on justifiable grounds. The employee concerned has to be given a show cause notice in respect of the proposed action and his reply taken into consideration before passing the final order."

27. The law laid down by the Hon'ble the Supreme Court in Depot Manager, APSRTC (supra) shall govern the facts of this case.

28. The order dated 21.08.1996, insofar as, it provides that the period during which the petitioner remained under suspension shall not be treated as period spent on duty, is quashed.

29. The usual course of action upon the quashment of an order of punishment is to remand the matter back to the authorities for fresh consideration from the point where the proceedings stood vitiated. However, at times, the courts have in the interest of justice declined to remand the matter for fresh consideration and has accorded finality to the issue. In the facts of the instant case, the controversy pertains to the year 1993. The petitioner has been prosecuting his case for a long years before the different authorities and courts. The petitioner is in the evening of his life. Adequate punishment has already been meted out to the petitioner in the punishment order. It will not be appropriate to face him with the prospect of further litigation. It is a time to come to a litigative rest. In such view of the fact that the matter is not being remanded to the disciplinary authorities.

30. Mandamus is issued to the respondent authorities commanding them to treat the period during which the petitioner remained suspended as period spent on duty and release all the consequential benefits in favour of the petitioner with 6% interest. The exercise shall be completed within a period of three months from the date of receipt of certified copy of this order.

31. The writ petition is partly allowed.

Order Date :- 25.7.2018

Dhananjai