B.Giridhar vs The State Bank Of India
2021 Latest Caselaw 3671 AP

      HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU


                    W.P.No.16004 of 2020
O R D E R:

This writ petition is filed for the following relief:

"...to issue an order writ or direction more particularly one in the nature of Writ of MANDAMUS declaring the impugned L.No.RBOIV/HR/2020-21/15 dated 20.08.2020, Disciplinary Proceedings Show Cause Notice issued by the 2nd respondent and subsequent Disciplinary Authority and the 4th respondent as per letter dated 26.08.2020 is without furnishing the related documents are illegal, arbitrary, unjust, contrary to the Rules of Conduct 1(a) i and 1(k) furnished in Chapter-1 of HR Hand Book Volume-2, contrary to the terms 5, 6, 7, 8 and 9 of the terms of Bipartite Settlement dated 10.04.2002 between Indian Banks Association IBA and AIBEA-NCBE-INBEF on DISCIPLINARY ACTION AND PROCEDURE THEREFORE and in violation of principles of natural justice and in violation of Art 14 and 21 of Constitution of India and set aside the same and to pass..."

This Court has heard Sri V.V.Padmanabha Rao, learned

counsel for the petitioner and Sri N.Ashwani Kumar,

appearing for the respondents.

Learned counsel for the petitioner argues that the

impugned proceedings dated 20.08.2020 were issued with a

mala fide intention to prevent the petitioner in enforcing the

orders obtained by him in WP.No.48846 of 2014 passed by a

learned single Judge of the High Court of Karnataka at

Banglore on 09.11.2015. It is his contention that the

petitioner has been involved in a long standing dispute with

the respondents and that issues are still pending before the

Labour Commissioner in order to prevent him from enjoying

the fruits of the said order, the impugned proceedings has

been issued. Apart from that, learned counsel vehemently

argues that the offences alleged against the petitioner are not

"gross misconduct" at all. He relies upon the Bipartite

settlement dated 10.04.2002 between Indian Banks‟

Association (IBA) and the All India Bank Employees‟

Association, National Confederation of Bank Employees,

Indian National Bank Employees‟ Federation (AIBEA-NCBE-

INBEF), which is filed as material paper. Basing on this,

learned counsel argues that the terms of bipartite settlement

are binding on all the parties to the dispute and that neither

of the two charges which are mentioned in the memo

constitute "gross misconduct". Apart from this, learned

counsel also argues on merits stating that the opening of the

Bank account etc., alleged are not when the petitioners is in

service, and that the loan was availed when the petitioner is

not in service; that the entire action is mala fide and contrary

to the settlement. He also argues that the documents sought

were not furnished to the petitioner in order to ensure that he

could give an effective reply to the same. Therefore, he argues

that the entire action of the respondents is vitiated both on

fact and on law and that this Court should interfere and

protect the interest of the petitioner by setting aside the

proceedings dated 20.08.2020.

In reply to this, Sri N.Ashwani Kumar, argues

vehemently that a writ petition is not maintainable against a

show cause notice. He submits that a cause of action would

only arise when a final order passed pursuant to the show

cause notice and that the petitioner has rushed to the Court

and obtained an interim order without having a cause of

action. He also argues that no mala fides are pleaded for this

Court to come to a conclusion that the action is vitiated. He

points out that mala fides are matter of pleading and proof

and as per the settled law on the subject, a very high

standard of proof is necessary to prove mala fides. It is his

contention that in the present case, the mala fides are neither

pleaded nor proved. Relying upon the Rules of Conduct

which are mentioned in the hand book, the learned counsel

argues that as the petitioner has borrowed money from a

third party and opened an account in another Bank, the

charges are germane and correct. He argues that the word

„may‟ in the Rule that has been relied upon in the Rules of

Conduct is to be interpreted as „shall‟. Therefore, he argues

that an employee of the Bank shall not borrow money from

any firm or institution. Relying upon another Rule from the

Conduct, he points out that it is clearly stipulated that no

employee shall open an account with any Bank without the

previous sanction of the Bank. He points out that at no point

of time, was any permission sought or obtained by the

petitioner. Therefore, learned counsel argues that the interim

order that was granted should be vacated and the writ also

should be dismissed since there are no merits in the case.

In reply to this, learned counsel for the petitioner

reiterates his arguments and also draws the attention of this

Court to the conciliation proceedings which are held even in

February, 2021 and lastly, reference to the Writ Appeal

No.383 of 2020 filed against the interim order granted by this

Court. Learned counsel points out that a period of two weeks

was given to the present respondents to file a vacate stay

petition and as the vacate stay was filed long after two years

period, the respondents are not entitled to seek any vacate

stay from this Court.

This Court after considering the submissions made by

both the counsels is of the opinion that merely because the

respondents failed to file a vacate stay within two weeks, they

are not precluded from asking this Court to seek orders in the

writ or also to vacate the stay. This is a right given to them

by the law of the land.

Coming to the merits of the matter and the case laws

cited, this Court notices that the issue raised in this case is

about the correctness and the legality of the show cause

notice issued. The law on the subject is sufficiently clear and

is well settled. Learned counsel for the respondents has cited

two out of the many judgments on the subject, which are

Union of India and another v. Kunisetty Satyanarayana 1

and Secretary, Ministry of Defence and others v.

Prabhash Chandra Mirdha2.

In Kunisetty Satyanarayana's case (1 supra), paras

12 to 16 are very important and they are reproduced

hereunder:

12. In our opinion, the High Court was not justified in allowing the writ petition.

13. It is well settled by a series of decisions of this Court that ordinarily no writ lies against a charge-sheet or show-cause notice vide Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh [(1996) 1 SCC 327 : JT (1995) 8 SC 331] , Special Director v. Mohd. Ghulam Ghouse [(2004) 3 SCC 440 : 2004 SCC (Cri) 826 : AIR 2004 SC 1467] , Ulagappa v. Divisional Commr., Mysore [(2001) 10 SCC 639] , State of U.P. v. Brahm Datt Sharma [(1987) 2 SCC 179 : (1987) 3 ATC 319 : AIR 1987 SC 943] , etc.

14. The reason why ordinarily a writ petition should not be entertained against a mere show-cause notice or charge-sheet is that at that stage the writ petition may be held to be premature. A mere charge-sheet or show-cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same has been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show-cause notice or after holding an enquiry the authority concerned may drop the proceedings and/or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show- cause notice or charge-sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.

15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.

1 (2006) 12 SCC 28 2 (2012) 11 SCC 565

16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.

Similarly, in the second decision also viz., Secretary,

Ministry of Defence, the same legal position has been

reiterated in paras 10, 11 and 12.

If the conclusions by the Hon‟ble Supreme Court in

Kunisetty Satyanarayana's case (1 supra) are taken, a

mere charge sheet or show cause does not give raise to cause

of action as there was no adverse order passed. What is

important is the conclusion by the Hon‟ble Supreme Court in

para 14 that it is quite possible that after considering the

reply to the show cause notice or holding an enquiry, the

authority concerned may drop the proceedings or hold that

the charges are not established. A mere show cause notice

does not confer a right to approach the Court. In para 16,

the Hon‟ble Supreme Court carved out the exception and held

that in very rare and exceptional cases, the high Court can

quash a show cause notice if it is found to be wholly without

jurisdiction or for some other reason, if it is found wholly

illegal.

If the current show cause notice is examined against the

backdrop of this law, it is clear that the essence of the dispute

is that a wrong charge is pressed into service and that it is

not gross misconduct. The jurisdiction or the authority of the

person, who has signed it or issued the show cause notice, is

not in question. Jurisdiction in simple terms is the power to

hear and determine the case. In the case on hand, it cannot

be said that the show cause notice is issued and that the

matter is being heard and decided by a person who is not at

all empowered to do so. Similarly, the word illegal is also a

word of specific legal connotation. It generally means,

something that is prohibited by law or which is an offence.

In the case on hand, the allegation of the petitioner is

that "gross misconduct" is mentioned in the show cause

notice. In the opinion of this Court this by itself will not bring

it within these two exceptions.

In view of the law on the subject, which is very clearly

laid down by the Hon‟ble Supreme Court of India, this Court

is of the opinion that the present case does not fit within the

exceptions. The writ is therefore held to be premature.

The petitioner has a remedy of raising all these issues in

reply to the show cause notice. As mentioned in para 14 of

Kunisetty Satyanarayana's case (1 supra), if the proper

defence is raised, may be the authority will drop the charge or

held that the charge is not proved. These eventualities are

possible.

In that view of the matter, this Court holds in line with

the judgment of the Hon‟ble Supreme Court of India that are

cited that the writ petition is not maintainable. It is left open

to the petitioner to raise these issues in his reply and this

Court is hopeful that the authority will consider the reply

notice in its proper perspective and pass orders on merits.

With these observations, the writ petition is dismissed.

No order as to costs. As a sequel, the miscellaneous petitions

if any shall stand dismissed.

___________________________ D.V.S.S.SOMAYAJULU, J Date: 22.09.2021 KLP