Delhi High Court
Syndicate Bank vs Chief Commissioner For Persons ... on 9 March, 2018
$~13
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P.(C) 5321/2003
SYNDICATE BANK ..... Petitioner
Through Mr. Mukesh Kumar, Adv.
versus
CHIEF COMMISSIONER FOR PERSONS WITH
DISABILITIES & ANR ..... Respondents
Through None.
CORAM:
HON'BLE MR. JUSTICE C.HARI SHANKAR
JUDGMENT(ORAL)
9th March, 2018
C.HARI SHANKAR, J.
1. This writ petition, at the instance of the Syndicate Bank, is
directed against an order, dated 5th June 2003, passed by the Chief
Commissioner of Persons with Disabilities, apparently as a sequel to
an earlier order dated 17th December, 2002, passed by her.
2. As the issue in controversy is brief, no detailed narration of
facts is required. Suffice it to state that Respondent No.2, who was
working as a Clerk in the petitioner-Bank, and claims to be physically
handicapped, moved the Chief Commissioner of Persons with
Disabilities (hereinafter referred to as "CCPWD"), challenging his
transfer from Delhi to Dombivli, Mumbai, alleging that, given his
physical condition, the said transfer was arbitrary, especially as there
was a vacancy in Delhi, where he could have been accommodated.
3. Notice was issued, by the CCPWD, to the petitioner-Bank,
which responded vide letter dated 18th September, 2001, relying on
directives issued by the Ministry of Finance, clarifying that it was
neither possible nor desirable to lay down, as an inexorable guideline,
that physically handicapped Group A and Group B employees in all
public sector banks, who were subject to all India transfer liability, be
always posted near their native place. Even so, the petitioner
submitted, in his abovementioned response, that Respondent No.2 had
been directed to appear before the Medical Board at Mumbai, to
ascertain the extent of his physical handicap, so that a suitable
decision could be taken thereon. Respondent No.2 refused to abide by
the said request and, instead wrote, on 06th July, 2001, to the Branch
Manager, Dombivli-Mumbai Branch of the petitioner-Bank, stating
that he would neither resume duty nor apply for leave.
4. Consequently, it appears that Respondent No.2 worked, at the
Dombivli branch of the petitioner-Bank, only from 18th June, 2001 to
30th June, 2001.
5. Disciplinary proceedings were initiated, against Respondent
No.2, by the petitioner-Bank, at which stage Respondent No.2
approached the CCPWD. By an order dated 20th November, 2001, the
CCPWD stayed the disciplinary proceedings, which were otherwise to
commence on 27th November, 2001.
6. Proceedings were conducted, thereafter, before the CCPWD,
wherein the respondent sought to submit, inter alia, that certain other
physically handicapped persons had been accommodated in Delhi. Per
contra, the petitioner-Bank, submitted that the physical disability
suffered by Respondent No.2 was only to the extent of 7%, and that
preference in the matter for posting of physically handicapped
employees was available only to Group „C‟ and Group „D‟ employees.
7. During the pendency of the said proceedings, Respondent No.2
was transferred back to New Delhi in April, 2002. The only issue that
remained for consideration, before the CCPWD, was, therefore, with
respect to the disciplinary proceedings which had been initiated
against the said respondent, and which had been kept in abeyance by
the CCPWD.
8. The CCPWD ultimately disposed of the petitioner‟s
complaint/application vide judgment and order dated 17th December,
2002. While criticizing the petitioner-Bank for having unnecessarily
transferred Respondent No.2 to Dombivli, it held, nonetheless, that the
said respondent was not justified in refusing to join at Dombivli,
thereby choosing to take law in his own hands. The CCPWD observed
that, in any case, this was an issue which had to be decided in the
disciplinary proceedings initiated against Respondent No.2, which
were pending as on that date. Accordingly, the complaint of
Respondent No.2 was disposed of in the following terms:
"Considering the overall facts and circumstances of the case,
the stay imposed by the Court on the disciplinary proceedings
vide interim order dated 20.11.2001 is vacated. It is not
appropriate for this Court to assume the role of the inquiring
authority. The respondent is, therefore, directed to conduct the
disciplinary proceedings strictly under the extant rules of the
Bank within three months from the date of receipt of this
Judgment taking into consideration the overall circumstances.
The respondent is further directed to ascertain authenticity of
the disability certificates based on which some of the
employees have allegedly been given the benefits and take
action as required under Section 69 of the PWD Act, 1995.
Action taken report be submitted to this Court within three
months from the date of receipt of this Judgement. "
9. Apparently, in compliance of the aforementioned directions
issued by the CCPWD, the disciplinary authority, in the proceedings
initiated against Respondent No.2, passed a final order, on 24th May,
2003, imposing, on him, the penalty of reduction of his basic pay by
two stages, for a period of two years, with cumulative effect. It is not
known whether Respondent No.2 chose to carry the matter any further
by seeking any judicial redress thereagainst.
10. The impugned order was passed, by the CCPWD, on a "review
petition" filed by Respondent No.2, whereby the said respondent
sought review of the order dated 17th December, 2002 (supra). The
said "review petition" came to be decided, by the impugned order
dated 05th June, 2003, of the CCPWD, which reads as under:
" The learned counsel for the complainant reiterated that
the respondent has not submitted the information a directed by
this Court relating the authenticity of the disability certificates
in respect of certain employees. The bank has also not
apprised this Court about the date since when a vacancy in
Delhi existed against which the complainant could be posted.
There was no response regarding the vacancy in Punjabi Bagh
branch of the Bank. According to the complainant there is still
a vacancy at Punjabi Bagh branch where he has not been
posted. He also submitted that the Enquiring Authority in his
report dated 16.4.2003 has clearly admitted that he has not
gone into the reasons for the complainant‟s absence and that
he was required only to ascertain/confirm and not to enquire
whether the allegations are substantiated or not. Therefore, the
enquiry report is not unbiased.
The learned counsel for the respondent handed over the
written preliminary objections primarily on the ground that
the PWD Act does not provide for review of the Order passed
by the Chief Commissioner, Disabilities. The respondent also
wishes to file a detailed reply to the review petition apparently
if the said review petition is not dismissed. He also produced
the order dated 24.5.2003 passed by the Disciplinary
Authority in the disciplinary case against the complainant.
The order imposes a penalty of reduction of basic pay of the
complainant in two stages in the time scale of his pay with
immediate effect for a period of two years and that the
complainant will not earn increments during the period of
such a reduction and on the expiry of the period the reduction
will have the effect of postponing the future increments. The
order also indicates that the complainant can prefer an appeal
against the said order to the Appellate Authority i.e. the
General Manager, Syndicate Bank, Head Office: Manipal
within 45 days of receipt of the order.
It is not clear from perusal of the Inquiry Report and
the Order of Disciplinary Authority dated 24.5.2003 whether
the Disciplinary Authority while awarding the penalty took
into consideration the observation of this Court at para 4(b) of
the Order dated 17.12.20002. If the said observation was
specifically not brought to the notice of the Disciplinary
Authority then the Disciplinary Authority is advised to
consider the said observation of this Court and then take a
view. This Court be informed of the decision within a period
of one week.
The respondent is also directed to submit the action
taken report on the directions contained in para 15 of the
Order dated 17.12.2002 and the status of vacancy in Punjabi
Bagh branch of the Bank. The Respondent shall also indicate
whether the complainant can be transferred to that branch
against a vacancy or not. "
11. There has been no appearance on behalf of the Respondent
No.1, who, in my opinion, was not a necessary or proper party to these
proceedings, and Respondent No.2 has remained unrepresented since
long. I have, therefore, heard Mr. Mukesh Kumar, learned counsel
appearing for the petitioner-Bank, and with his assistance, perused the
available record.
12. Mr. Mukesh Kumar, learned counsel appearing before me on
behalf of the petitioner, submits that the impugned order was totally
bereft of jurisdiction, as there was no power of review, vested in the
CCPWD, under the Persons with Disabilities (Equal Opportunities
Protection of Rights and Full Participation Act, 1995 (hereinafter
referred to as "The PWD Act").
13. Clearly, there is substance in his submission.
14. Sections 58 and 59 of the PWD Act may, for this purpose,
usefully be reproduced, thus:.
"58. Functions of the Chief Commissioner - The Chief
Commissioner shall -
(a) coordinate the work of the Commissioners;
(b) monitor the utilization of funds disbursed by the
Central Government;
(c) take steps to safeguard the rights and facilities
made available to persons with disabilities;
(d) submit reports to the Central Government on the
implementation of the Act at such intervals as the
Government may prescribe.
59. Chief Commissioner to look into complaints with
respect to deprivation of rights of persons with disabilities
- Without prejudice to the provisions of section 58 the Chief
Commissioner may of his own motion or on the application of
any aggrieved person or otherwise look into complaints with
respect to matters relating to -
(a) deprivation of rights of persons with disabilities;
(b) non-implementation of laws, rules, bye-laws,
regulations, executive orders, guidelines or instructions
made or issued by the appropriate Governments and
the local authorities for the welfare and protection of
rights or persons with disabilities, and take up the
matter with the appropriate authorities."
15. It is obvious that the PWD act did not confer the CCPWD with
any jurisdiction or power to review the order earlier passed by her.
The position, in law, that the power of review is not inherent and has
necessarily to be conferred by statute, is trite. If at all authority is
required for this purpose, it is to be found in the following passage
from the decision, oft-quoted for this purpose, of K.S.Hegde, J., in
Patel Narshi Thakershi v. Pradyumansinghji Arjunsinghji, (1971) 3
SCC 844;
"4. The first question that we have to consider is whether Mr
Mankodi had competence to quash the order made by the
Saurashtra Government on October 22, 1956. It must be
remembered that Mr Mankodi was functioning as the delegate
of the State Government. The order passed by Mr Mankodi, in
law amounted to a review of the order made by Saurashtra
Government. It is well settled that the power to review is not
an inherent power. It must be conferred by law either
specifically or by necessary implication. No provision in the
Act was brought to notice from which it could be gathered
that the Government had power to review its own order. If the
Government had no power to review its own order, it is
obvious that its delegate could not have reviewed its order.
The question whether the Government's order is correct or
valid in law does not arise for consideration in these
proceedings so long as that order is not set aside or declared
void by a competent authority. Hence the same cannot be
ignored. The Subordinate Tribunals have to carry out that
order." For this reason alone the order of Mr Mankodi was
liable to be set aside."
(Emphasis supplied)
16. Section 63 of the PWD Act is also relevant in this context, and
reads thus:
" 63. Authorities and officers to have certain powers of
civil court. -
(1) The Chief Commissioner and the Commissioners shall,
for the purpose of discharging their functions under this Act,
have the same powers as are vested in a court under the Code
of Civil Procedure, 1908 while trying a suit, in respect of the
following matters, namely:-
(a) summoning and enforcing the attendance of
witnesses;
(b) requiring the discovery and production of any
documents;
(c) requisitioning any public record or copy thereof
from any court or office;
(d) receiving evidence on affidavits; and
(e) issuing commissions for the examination of
witnesses or documents.
(2) Every proceeding before the Chief Commissioner and
Commissioners shall be a judicial proceeding within the
meaning directions 193 and 228 of the Indian Penal Code and
the Chief Commissioner, the Commissioner, the competent
authority, shall be deemed to be a civil court for the purposes
of section 195 and Chapter XXVI of the Code of Criminal
Procedure, 1973 (2 of 1974)."
Clearly, therefore, the PWD Act, while vesting the CCPWD with
certain powers of a Civil court, as contained in the CPC, has stopped
short of conferring the power of review. The arrogation, by the
CCPWD, of review jurisdiction, therefore, partakes of the character of
quasi-judicial trespass.
17. Interestingly, the said point appears to have been specifically
taken before the CCPWD, as is noted in the body of the impugned
order dated 30th May, 2001. However, no finding has been returned
thereon. Instead, the CCPWD apparently further assumed, to herself,
appellate powers over the decision of the disciplinary authority, by
directing that, if the disciplinary authority had failed to consider the
observations contained in para 4(b) of the order dated 17th December,
2002 (supra), passed by her, he was advised to consider the said
observations and take a view, and thereafter, inform the CCPWD of
the decision thereon, within one week.
18. Apart from the fact that the CCPWD could not have reviewed
her earlier decision, I am further of the clear opinion that the CCPWD
seriously exceeded the jurisdiction vested in her, under the PWD Act,
by issuing the above direction, as the said Act did not vest her with
any appellate powers over the decision of the disciplinary authority.
19. In view of the fact that there is nothing, on record, to indicate
that the respondent took any further steps after the decision, dated 24 th
May 2003, of the disciplinary authority, whereby he was penalized, no
further observations are required to be made in that regard.
20. In view of the discussion hereinabove, the impugned order,
dated 05th June, 2003, of the Chief Commissioner of Persons with
Disabilities, is hereby quashed and set aside. The writ petition filed by
the petitioner-Bank is allowed.
21. There shall be no order as to costs.
C.HARI SHANKAR, J
MARCH 09, 2018/gb
