Shailesh Kumar Singh S/O Late Mr. ... vs Executive Director And Appellate ...
2022 Latest Caselaw 367 Guj

     C/LPA/20/2022                             ORDER DATED: 12/01/2022




          IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/LETTERS PATENT APPEAL NO. 20 of 2022
          In R/SPECIAL CIVIL APPLICATION NO. 13841 of 2017

                                 With

CIVIL APPLICATION (FOR PRODUCTION OF ADDITIONAL EVIDENCES)
                         NO. 1 of 2021
           In R/LETTERS PATENT APPEAL NO. 20 of 2022

                                 With

              CIVIL APPLICATION (FOR STAY) NO. 2 of 2021
              In R/LETTERS PATENT APPEAL NO. 20 of 2022
==========================================================
        SHAILESH KUMAR SINGH S/O LATE MR. BHAGWAT ROY
                            Versus
         EXECUTIVE DIRECTOR AND APPELLATE AUTHORITY,
==========================================================
Appearance:
MR VISHWAS K SHAH(5364) for the Appellant(s) No. 1
for the Respondent(s) No. 1,2,4
MR DARSHAN M PARIKH(572) for the Respondent(s) No. 3
==========================================================

 CORAM:HONOURABLE MR. JUSTICE R.M.CHHAYA
       and
       HONOURABLE MR. JUSTICE NIRAL R. MEHTA

                           Date : 12/01/2022

                         ORAL ORDER

(PER : HONOURABLE MR. JUSTICE NIRAL R. MEHTA)

1. The present Letters Patent Appeal under Clause 15 of the Letters Patent, at the instance of unsuccessful petitioner, is directed against the oral judgment dated 6.8.2019 passed by the learned Single Judge, whereby the the petition came to be rejected qua the main prayers.

2. Brief facts giving rise to the present Appeal can be stated as under :

C/LPA/20/2022 ORDER DATED: 12/01/2022

2.1 The appellant is an Ex-employee of Bank of Baroda and was working as a Branch Manager at Velda Branch, Surat, who was initially recruited by the Banking Service Recruitment Board, by clearing Bank of Baroda's clerical cadre examination conducted on 26.4.1998 and consequentially, issued an appointment order dated 21.1.1999. The appellant had successfully completed 6 months' probation period at Velda branch.

2.2 Thereafter, the appellant was promoted to the post of Head Cashier and posted at Ukai Branch, Surat, where he had worked for almost 2 years. Thereafter, the appellant was transferred back to Velda Branch as Cash Clerk and worked there till he got the promotion on 1.3.2007 as an Officer. Thereafter, he was posted at Bodhan Branch as an Agricultural Officer-cum-Accountant and was second senior most officer there. During the period between 207-2011 the appellant had worked at Bodhan Branch as an Officer and thereafter, he was posted as Branch Manager at Velda Branch, Surat which is attached to Baroda Swarojgar Vikas Sansthan, Surat for the period from 4.7.2011 to 4.3.2012.

2.3 On 4.6.2012, a letter came to be issued by the Director of Baroda Swarojgar Vikas Sansthan, Surat - a Trust set up by the Bank of Baroda, intimating about the suspension order dated 1.6.2012.

2.4 On 22.8.2013, Memorandum and Article of charges and Statement of Allegations came to be served upon the appellant for alleged irregularities committed by the

C/LPA/20/2022 ORDER DATED: 12/01/2022

petitioner at Velda and Bodhan Branches. On 30.6.2014, the Disciplinary Authority of Bank of Baroda under Sub- Regulation 5(3) read with Regulation 6 of Bank of Baroda Officers Employees' (Discipline & Appeal) Regulations, 1976, terminated the services of the appellant. The appellant, by way of e-mail dated 18.4.2014, sought permission of Deputy General Manager of Bank of Baroda, Surat to sell out his house at Surat availed by staff housing loan, that too settle the outstanding dues of the said housing loan.

2.5 The General Manager and Competent Authority, Bank of Baroda issued a show cause notice dated 20.9.2014 to the appellant to forfeit the full amount of gratuity under Section 4(6)(b) of Payment of Gratuity Act, 1972, which was replied by the appellant by way of e-mail dated 27.10.2014.

2.6 It appears that the appellant by way of various correspondence made to the competent authority requested mercy plea for reinstatement with minimum possible punishment, seeking termination benefits, release of his provident fund parked in stall overdraft, seeking compassionate allowance and further, allowing him to regulate his staff housing loan account parked in Bodhan Branch, Surat and seeking experience certificate of almost 15 years.

2.7 By way of letter dated 20.7.2015, the appellant was intimated about releasing the commuted amount and compassionate allowance paid in the appellant's account.

2.8 The Executive Director and Appellate Authority, Bank of

C/LPA/20/2022 ORDER DATED: 12/01/2022

Baroda vide its order dated 6.12.2015 dismissed the Appeal filed by the appellant against his termination order dated 30.6.2014, on merits.

2.9 According to the appellant, the said dismissal order passed by the Appellate Authority was received on 29.11.2016 and till then, the appellant was not aware about the status of the Appeal. Under this premises, the writ petition being SCA No.13841 of 2017 came to be filed by the appellant praying, inter-alia, to quash and set aside the impugned orders dated 16.12.2015 and 30.6.2014 with consequential prayers.

2.10 It appears that upon service of notice, the Bank filed its appearance through its learned counsel and also filed detailed affidavit-in-reply dated 14.11.2017 contesting the petition. Apropos to the said reply, the appellant also filed affidavit-in- rejoinder dated 15.3.2018.

3. The learned Single Judge, having considered the submissions and the pleadings, by way of an order dated 6.8.2019 dismissed the writ petition, by upholding the impugned order dated 6.12.2015 and 30.6.2014. However, the learned Single Judge directed the bank to consider the request of the appellant - original petitioner with regard to the forfeiture of gratuity under the provisions of the Payment of Gratuity Act, 1972.

4. Feeling aggrieved and dissatisfied by the aforesaid, the appellant - original petitioner has filed this Appeal under Clause 15 of the Letters Patent challenging, inter-alia, the order dated 6.8.2019 passed by the learned Single Judge in

C/LPA/20/2022 ORDER DATED: 12/01/2022

SCA No.13841 of 2017.

5. We have heard Mr.Vishwas K. Shah, learned counsel for the appellant and Mr.Darshan M. Parikh, learned counsel for the respondent - bank.

6. Mr.Vishwas K. Shah, the learned counsel for the appellant, submitted that the learned Single Judge has not appreciated the facts on record, more particularly unblemished service rendered by the appellant for 16 years. He further submitted that the punishment order of dismissal from service is disproportionate inasmuch as it would attach disqualification for the future employment as well. Mr.Shah submitted that similarly situated persons like the appellant were not awarded the grave punishment of termination and, therefore, the impugned order passed by the learned Single Judge, according to him, deserves to be quashed and set aside by this Court. Lastly, Mr.Shah submitted that the learned Single Judge has not considered the fact that the documentary evidence which was sought to be relied upon against the appellant was not supplied to him. Mr.Shah has, therefore, urged to this Court to allow the present Appeal by quashing and setting aside the impugned order passed by the learned Single Judge.

7. Per contra, Mr.Darshan M. Parikh, learned counsel for the respondent - bank has vehemently opposed the Appeal and submitted that the order passed by the learned Single Judge is legal and does not require any interference by this Court. He further submitted that looking to the nature of work and responsibility attached to the post that was being held by

C/LPA/20/2022 ORDER DATED: 12/01/2022

the appellant, the appellant had committed serious violation of duties and also committed breach of trust reposed in him by the bank. He further submitted that the misconduct committed by the appellant is sheer misuse of his office and it is derogatory, prejudicial and detrimental to the interest of the bank. Thus, the act of the appellant is of unbecoming of a bank officer. Mr.Parikh submitted that in fact, most of the allegations came to be admitted by the appellant while replying the charge-sheet. However, with a view to follow the principles of natural justice, the inquiry was conducted. He further submitted that the whole departmental inquiry was conducted after having complied with the principles of natural justice and the appellant - original petitioner was supplied with all the material evidences that were considered in the departmental inquiry. Learned counsel further submitted that except bare contention that certain documents relied upon by the disciplinary authority are not made available, no specific contention with regard to which particular document was sought for and in turn, not supplied by the appellant. Mr.Parikh submitted that so far as discrimination vis-a-vis other persons upon whom minor punishment was imposed is concerned, those persons have not committed same level of indiscipline and thereby, the penalty imposed upon them is well commensurate with the charges proved against them. Thus, the appellant cannot claim any equity with the other employees. Having made aforesaid submissions, finally Mr.Parikh has urged to this Court to dismiss the Appeal, in the interest of justice.

8. Having heard learned counsel appearing for the respective parties and having gone through the impugned

C/LPA/20/2022 ORDER DATED: 12/01/2022

order as well as the original record of writ petition, the question that falls for our consideration is whether the learned Single Judge has committed any error in upholding the dismissal order passed by the respondent - bank by rejecting the writ petition.

9. So as to decide the aforesaid question, it would be apt to refer to recent pronouncement of the Coordinate Bench rendered in LPA No.48 of 2021 dated 11.8.2021, wherein more or less, an identical issue with regard to imposition of punishment and proportionality thereof came to be decided. For the sake of brevity, the relevant portion of the said judgment is extracted herein-after :

"12.1. We are of the view that the learned Single Judge has taken a correct view, in view of the judgment of the Hon'ble Supreme Court in case of Nikunja Bihari Patnaik (supra) that it is not necessary that the Bank should suffer actual loss because of the irregularities committed by its officers / employees but what is required to be seen is whether he has acted beyond his authority or not, and therefore, in light of the aforesaid judgment, if the observations of the Hon'ble Supreme Court in respect of P. Gunasekaran (supra), more particularly, in respect of para-37 is read that under Article 226 / 227 of the Constitution of India, the High Court should not go into the proportionality of the penalty, unless it shoks its conscious is the correct view. The judgment of the Hon'ble Supreme Court in the case of P.

Gunasekaran (supra) has laid down the parameters in

C/LPA/20/2022 ORDER DATED: 12/01/2022

respect of re-appreciation of evidence and interference in punishment orders imposed by the Disciplinary Authority, one of those is that the High Court should not go into the proportionality of punishment, unless it shocks its conscious.

12.2. In the instant case, as observed by us, in our order dated 20.07.2021, learned advocate Mr. Shah has given up the challenge to the aspect as to whether a person after superannuation can be subjected to major punishment or not, as Mr. Shah has confined his arguments only to the punishment imposed and its proportionality. Now as far as these two aspects are concerned, the aforesaid two judgments in case of Nikunja Bihari Patnaik (supra) and P. Gunasekaran (supra) clinches the issue. The judgment in case of Nikunja Patnaik (supra) takes care of the contention of Mr. Shah in respect of the fact that bank has not suffered any actual financial loss, as the Hon'ble Supreme Court has categorically observed that, what is to be seen is, whether the officer / employee has acted beyond his authority or not. As far as as the procedural part of inquiry or any lapses in the inquiry is concerned, the same is taken care of, by the judgment of the Hon'ble Supreme Court in the case of P. Gunasekaran (supra), wherein, parameters are laid down about re-appreciation of evidence of a departmental inquiry or a disciplinary proceedings. Learned advocate Mr. Shah could not point out to us as to what procedural lapse, the authority has committed, which would vitiate the

C/LPA/20/2022 ORDER DATED: 12/01/2022

departmental proceedings, which would ultimately lead to quashing the order of punishment. In fact, the case of appellant does not fall within any of the parameters laid down in the aforesaid judgments, as learned advocate Mr. Shah could not point out that his case falls within any of the parameters, which would enable us to re-examine the order of punishment.

12.3. On the contrary, a full-fledged departmental inquiry was conducted and at the end of the inquiry, the punishment of removal from service was imposed upon appellant, which according to us, is not such a punishment which would shock our conscious, looking to the misconduct of the appellant-petitioner, more particularly, considering the fact that the appellant was holding a post in the managerial cadre and went upto the post of the Senior Manager in the organization. The post in the managerial cadre reflects the faith of the management in the person holding such post and the said faith is of utmost significance, when it comes to the banking industry, which deals with huge financial transactions and in a way contributes to the economy, and therefore, any breach of such faith, cannot be viewed in a lenient manner. Once such faith of management is breached or compromised by the delinquent, what is more important is to see that the faith is breached and the resultant effect of breach of faith would be of least significance, and therefore, the punishment of removal imposed upon the appellant would certainly

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not shock our conscious."

10. Keeping in mind the aforesaid ratio laid down by the Coordinate Bench and also the facts of the present case, we are of the considered opinion that the misconduct of the appellant is very serious in nature. The appellant was at a level of Branch Manager and thereby, the trust reposed on him by the bank was very high. However, the appellant has misused his position as a Branch Manager and thereby, breached the trust of the bank. Thus, in our considered opinion, there cannot be any appropriate punishment except removal from service. Hence, according to us, the punishment of removal imposed by the bank cannot be termed as disproportionate in nature. Even otherwise, as per the law laid down by the Coordinate Bench of this Court based on legal proposition settled by the Apex Court, the learned Single Judge has rightly not gone into proportionality of penalty under Articles 226 and 227 of the Constitution of India. As stated herein-above, looking to the charges attributed and proved against the appellant during the course of departmental inquiry, in our considered opinion, the punishment of removal of service is perfectly justified and cannot be said as shockingly disproportionate.

11. Even otherwise, we are in complete agreement with the reasoning and observations made by the learned Single Judge in the impugned order and thereby, we are not inclined to entertain the present Appeal.

12. For the reasons stated herein-above, the present Appeal does not require any interference being bereft of any merit

C/LPA/20/2022 ORDER DATED: 12/01/2022

and accordingly, the same is rejected.

13. Consequently, the connected Civil Applications also stand rejected.

(R.M.CHHAYA,J)

(NIRAL R. MEHTA,J) V.J. SATWARA