G N Kamol vs State Bank Of India
2021 Latest Caselaw 14312 Guj

     C/LPA/589/2021                              JUDGMENT DATED: 17/09/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/LETTERS PATENT APPEAL NO. 589 of 2021

            In R/SPECIAL CIVIL APPLICATION NO. 21265 of 2007


FOR APPROVAL AND SIGNATURE:


HONOURABLE THE ACTING CHIEF JUSTICE MR. JUSTICE
R.M.CHHAYA
and
HONOURABLE MR. JUSTICE NIRZAR S. DESAI

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1    Whether Reporters of Local Papers may be allowed               NO
     to see the judgment ?

2    To be referred to the Reporter or not ?                        NO

3    Whether their Lordships wish to see the fair copy              NO
     of the judgment ?

4    Whether this case involves a substantial question              NO
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                              G N KAMOL
                                 Versus
                          STATE BANK OF INDIA
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Appearance:
MR YOGEN N PANDYA(5766) for the Appellant(s) No. 1
MR NAGESH C SOOD(1928) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2,3
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    CORAM:HONOURABLE THE ACTING CHIEF JUSTICE MR.
          JUSTICE R.M.CHHAYA
          and
          HONOURABLE MR. JUSTICE NIRZAR S. DESAI

                             Date : 17/09/2021

                            ORAL JUDGMENT

C/LPA/589/2021 JUDGMENT DATED: 17/09/2021

(PER : HONOURABLE MR. JUSTICE NIRZAR S. DESAI)

1. By way of this Letters Patent Appeal, the present appellant has challenged the order dated 11.10.2018 passed by the learned Single Judge in Special Civil Application No.21265 of 2007 whereby the petition preferred by the present appellant was dismissed by the learned Single Judge.

2. Heard learned advocate Mr.Yogen Pandya for the appellant and learned advocate Mr.Nagesh Sood for the respondents. By consent of the parties, the matter was heard finally.

3. The brief facts giving rise to the filing of the present appeal are stated as under:

3.1 The present appellant, who happens to be the original petitioner of Special Civil Application No.21265 of 2007, joined the services with the respondent Bank as Cashier in the year 1983 and lastly was working as Senior Assistant with the respondent Bank. The appellant was served with the charge-sheet dated 11.07.2005 wherein it was alleged that he submitted / altered fraudulent medical bills and fraudulently obtained reimbursement of those bills under the Bank's improved medical bill facility. The present appellant already admitted the guilt and an amount of Rs.52,000/- was recovered after the admission of guilty of the present appellant.

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3.2 In the departmental inquiry, inquiry report was submitted and tentative order dated 23.05.2006 was passed and thereafter the order dated 31.08.2006 dismissing the present appellant was passed against which the departmental appeal was preferred by the appellant but even the Appellate Authority also vide order dated 03.01.2007 upheld the order dated 31.08.2006 passed by the Disciplinary Authority and by upholding the order passed by the Disciplinary Authority, the appeal was dismissed.

3.3 Those two orders dated 31.08.2006 passed by the Disciplinary Authority and 03.01.2007 passed by the Appellate Authority were subject matter of challenge before the learned Single Judge. The learned Single Judge, after hearing the advocates for the respective parties and after considering the material available on record, dismissed the petition by CAV Judgment dated 11.10.2008, which is challenged by the present appellant by way of this appeal.

4. Heard learned advocate Mr.Yogen Pandya for the appellant who submitted that the inquiry conducted by the Inquiry Officer was not conducted in proper manner as the same was conducted in a biased manner. Though request was made by the present appellant to allow the petitioner to be represented by one Shri H.A. Acharya, the Inquiry Officer proceeded with the inquiry,

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proceedings were recorded and the same were completed on the same day. The appellant was made to admit the documents which were tendered against the appellant and appellant being a layman was not even, in a position to understand about the consequence of admission of those documents. According to learned advocate Mr.Pandya this has resulted into two flows in conducting the Departmental Inquiry i.e. (i) non- observance of principles of natural justice and (ii) also not allowing the present appellant to have the benefit of assistance of next friend.

4.1 Learned advocate Mr.Pandya thereafter contended that the authorities ought to have considered the fact that wife of the appellant was suffering from cancer and ultimately she died due to said disease. Considering the expenses incurred by the present appellant, the amount of alleged misappropriation or fraud is too small and amount for which fraud is alleged against the present appellant is only about Rs.52,000/- and, therefore, even if assuming without admitting that the appellant has committed misconduct of fraud then also looking to the amount involved, the punishment imposed upon the present appellant is too harsh and is grossly disproportionate to the nature of misconduct and on the strength of these arguments, learned advocate Mr.Pandya prayed for quashing of orders impugned in the main petition and the order of the learned Single Judge.

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4.2 In support of his contention in respect of proportionality of punishment, learned advocate Mr.Pandya relied upon the judgment of the Hon'ble Supreme Court in the case of Chairman-cum-Managing Director, Coal India Ltd. and another vs. Mukul Kumar Choudhari and others reported in (2009) 15 SCC 620. Mr.Pandya mainly relied upon paras:19 to 23 of the said judgment, which read thus:

"19. The doctrine of proportionality is, thus, well-recognised concept of judicial review in our jurisprudence. What is otherwise within the discretionary domain and sole power of the decision-maker to quantify punishment once the charge of misconduct stands proved, such discretionary power is exposed to judicial intervention if exercised in a manner in which is out of proportion to the fault. Award of punishment which is grossly in excess to the allegations cannot claim immunity and remains open for interference under limited scope of judicial review.

20. One of the tests to be applied while dealing with the question of quantum of punishment would be : would any reasonable employer have imposed such punishment in like circumstances ? Obviously, a reasonable employer is expected to take into consideration measure, magnitude and degree of misconduct and all other relevant circumstances and exclude irrelevant matters before imposing punishment.

21. In a case like the present one where the misconduct of the delinquent was unauthorised absence from duty for six months but upon being charged of such misconduct, he fairly admitted his guilt and explained the reasons for his

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absence by stating that he did not have any intention nor desired to disobey the order of higher authority or violate any of the Company's rules and regulations but the reason was purely personal and beyond his control and, as a matter of fact, he sent his resignation which was not accepted, the order of removal cannot be held to be justified, since in our judgment, no reasonable employer would have imposed extreme punishment of removal in like circumstances. The punishment is not only unduly harsh but grossly in excess to the allegations.

22. Ordinarily, we would have sent the matter back to the appropriate authority for reconsideration on the question of punishment but in the facts and circumstances of the present case, this exercise may not be proper. In our view, the demand of justice would be met if Respondent 1 is denied back wages for the entire period by way of punishment for the proved misconduct of unauthorised absence for six months.

23. Consequently, both these appeals are allowed in part. The appellants shall reinstate Respondent 1 forthwith but he will not be entitled to any back wages from the date of his removal until reinstatement. Parties will bear their own costs."

On the basis of aforesaid observations of Hon'ble Supreme Court, Mr.Pandya pointed out that in the instant case also considering the overall circumstances of the present appellant and considering the amount for which alleged fraud committed is only Rs.52,000/- the punishment of dismissal is too harsh and absolutely disproportionate and submitted that in light of ratio of the

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aforesaid judgment the punishment of dismissal be converted into some lesser punishment.

5. As against that learned advocate Mr.Nagesh Sood for the respondent by vehemently opposing the submissions canvassed by learned advocate Mr.Pandya for the appellant, submitted that the appellant was dealing with public money for carrying out banking business and, therefore, trust was deposed upon the appellant. Looking to the conduct of the appellant of defrauding the bank, the bank has lost confidence in the present appellant. Mr.Sood submitted that what is required to be seen while imposing the punishment is fraud and loss of confidence of the bank in the appellant and not the amount involved. If a person who has defrauded the bank is let off with some lighter punishment, in that case, it will encourage other employees of the bank to commit such act. Such acts should not be viewed lightly and, therefore, the bank has rightly imposed the punishment of dismissal. Learned advocate Mr.Sood submitted that once the appellant himself has admitted his guilt and sum of Rs.52,000/- was recovered from the appellant, it clearly shows admission on the part of the present appellant and when there is clear admission by the appellant, the appellant cannot take a defense of non-observance of principles of natural justice or that he was not permitted assistance of next friend.

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5.1 Learned advocate Mr.Sood submitted that the inquiry was conducted absolutely in fair and legal manner and though there is clear admission on the part of the present appellant about the fraud committed by him with the bank, the allegations levelled in respect of clause in inquiry are baseless. Learned advocate Mr.Sood relied upon the recent judgment of the Hon'ble Supreme Court in the case of Pravin Kumar vs. Union of India and others reported in (2020) 9 SCC 471 and submitted that while dealing with the aspect of departmental inquiry and proportionate of penalty and in respect of plea of leniency, the Hon'ble Supreme Court has categorically observed that, ".... there needs to be sending a clear message of deterrence to a society that the charges such as corruption, misappropriation and gross indiscipline are prime examples of grave offence and those are required to be dealt with strictly". Learned advocate Mr.Sood, in support of his submission, drew attention of the Court to paras:36, 37 and 38 of the aforesaid judgment, which read as under:

"IV. Punishment and plea of leniency

36. In our considered opinion, the appellant's contention that the punishment of dismissal was disproportionate to the allegation of corruption, is without merit. It is a settled legal proposition that the disciplinary authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying degrees of misdeeds with

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the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct. But unlike in criminal cases, in matters of disciplinary proceedings courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for trivial misdeeds; but for grave offences there is a need to send a clear message of deterrence to the society. Charges such as corruption, misappropriation and gross indiscipline are prime examples of the latter category, and ought to be dealt with strictly.

37. Applying these guidelines to the facts of the case in hand, it is clear that the punishment of dismissal from service is far from disproportionate to the charges of corruption, fabrication and intimidation which have unanimously been proven against the appellant. Taking any other view would be an anathema to service jurisprudence. If we were to hold that systematic corruption and its blatant cover-up are inadequate to attract dismissal from service, then the purpose behind having such major penalties, which are explicitly provided for under Article 311 of the Constitution, would be obliterated.

38. Still further, the appellant's actions would most probably have caused huge consequential losses to BPCL and lowered the reputation of the CISF amongst members of the public. Given the paramilitary nature of the appellant's force, a sense of integrity, commitment, discipline, and camaraderie is paramount. This expectation is only heightened in the case of the appellant given

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how he was specifically tasked with weeding out corruption and conducting surprise raids. Once shattered through acts of intimidation, forgery, and corruption; only the severest penalty ought to be imposed."

6. No other arguments are canvassed by learned advocates for the respective parties.

7. We have heard both the learned advocates for the respective parties and we have also perused the record of Special Civil Application No.21265 of 2007 as well as we have gone through the CAV judgment dated 11.10.2018 delivered by the learned Single Judge which is subject matter of challenge before us.

7.1 It is an admitted position that the present appellant had admitted his guilt and an amount of Rs.52,000/- was recovered. Once the guilt was admitted and amount was duly recovered from the appellant, the appellant who was holding post of Senior Assistant at the time of his dismissal, a defense that he admitted the guilt without knowing its consequence or legal implication, cannot be accepted. The appellant was holding a responsible post of Senior Assistant and while holding such post, it is expected of him to know the consequence of admission of guilt and, therefore, the contention of advocate for the appellant can not be accepted that inquiry was not conducted in fair and transparent manner and principles of natural of justice were not observed or that the

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services of next friend were not permitted to the appellant. Once when the appellant himself has admitted the guilt, the circumstances under which guilt was admitted becomes insignificance. In fact, the learned Single Judge has categorically observed in para:9 of the judgment and even reproduced the reply of the appellant about the Show Cause Notice wherein also he admitted his guilt and, therefore, as far as contention of the appellant in respect of manner in which departmental inquiry was conducted is concerned, such contention cannot be accepted.

7.2 As far as second contention of the appellant about proportionality of the punishment and about the amount being too small to impose such harsh punishment upon the appellant, is concerned, there also as observed by Hon'ble the Supreme Court in the judgment relied upon by learned advocate for the respondent in the case of Pravin Kumar (supra), the cases involving charges such as corruption, misappropriation and gross indiscipline are ought to be dealt with strictly. In the instant case also charges against the appellant, which are held to be proved, are about misappropriation and fraudulent practice and, therefore, considering the seriousness of charges, the punishment imposed upon the present appellant is absolutely just, legal and proper according to us. It does not shock our conscious and, therefore, we are of the view that the learned Single Judge has taken

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the right view by dismissing the petition.

8. In view of the above, we do not find any reason to interfere with the view taken by the learned Single Judge and to interfere with the findings of the learned Single Judge. Accordingly, the present appeal deserves to be dismissed, the same is dismissed. No order as to costs.

(THE ACTING CHIEF JUSTICE R.M.CHHAYA, J)

(NIRZAR S. DESAI,J) MISHRA AMIT V.