Kerala High Court

V.K.Sebastian vs The Chairman (Disciplinary Authority) on 17 January, 2025

                                                   2025:KER:2936
                                1
WP(C) No.1927 of 2012

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                            PRESENT

              THE HONOURABLE MR. JUSTICE P.M.MANOJ

FRIDAY, THE 17TH DAY OF JANUARY 2025 / 27TH POUSHA, 1946

                     WP(C) NO. 1927 OF 2012

PETITIONER:

          V.K.SEBASTIAN, AGED 55 YEARS
          S/O. KURIAKOSE, VAMATTATHIL HOUSE,
          P.O.KODENCHERRY, KOZHIKODE DISTRICT, PIN-673
          580.

          BY ADVS. S.PRASANTH (AYYAPPANKAVU)
          VARSHA BHASKAR


RESPONDENTS:

   1      THE CHAIRMAN (DISCIPLINARY AUTHORITY),
          SOUTH MALABAR GRAMIN BANK, HEAD OFFICE,
          MALAPPURAM, PIN-676 505.

   2      THE BOARD OF DIRECTORS
          SOUTH MALABAR GRAMIN BANK, MALAPPURAM, PIN-676
          505, REPRESENTED BY THE CHAIRMAN, SOUTH
          MALABAR GRAMIN BANK.

   3      THE SOUTH MALABAR GRAMIN BANK
          HEAD OFFICE, MALAPPURAM, PIN-673 580,
          REPRESENTED BY ITS CHAIRMAN.

          SRI. JAWAHAR JOSE, STANDING COUNSEL
       THIS   WRIT   PETITION   (CIVIL)   HAVING   BEEN   FINALLY
HEARD ON 04.12.2024, THE COURT ON 17.01.2025 DELIVERED
THE FOLLOWING:
                                                          2025:KER:2936
                                    2
WP(C) No.1927 of 2012



                             JUDGMENT

Dated this the 17th day of January, 2025

The questions to be decided in this writ petition are

whether the finding of misconduct or the delinquency in the

absence of specific provision in the Service Regulation of the

respondent bank is correct ? and the imposition of

punishment on the basis of the provisions of the revised

regulations which was not existing at the time of initiation is

sustainable ?

2. While the petitioner was working as Officer Scale

II in the South Malabar Gramin Bank, he had participated in

the selection process of Scale III Officer's post on

19.05.2008. Thereafter he preferred WP(C) No.20987 of

2008 before this Court challenging 2008 Selection Process.

In that writ petition he had produced the transcription of the

audio recording of the interview as an evidence to show that

the interview conducted was prejudicial to his interest. The

said act was done on the reason that he was unofficially 2025:KER:2936

informed prior to the time of interview that he would not be

given promotion in 2008, unless he withdrew

WP(C)No.34293 of 2006, a writ petition filed against the

selection process of 2006, petitioner herein was one among

the petitioners.

3. The petitioner was suspended by the Bank as per

Ext.P4 on 25.07.2008 on the ground that he acted in a

manner prejudicial to the interest of the bank which prima

facie amounts to gross misconduct warranting disciplinary

action against him until further orders, pending enquiry.

Thereafter he was issued with a show cause notice on

12.08.2008 to assign reasons why disciplinary action should

not be taken against him for the misconduct alleged therein.

The misconduct alleged therein was that during the selection

proceedings of Scale III Officers held on 19.05.2008 he had

recorded the audio of the said proceedings using his mobile

phone and published the transcription of the audio recorded

item on 09.07.2008. That act amounts to grave misconduct

coming under Clauses 17 to 20 of the Conduct, Discipline 2025:KER:2936

and Appeal Rules of South Malabar Gramin Bank (Officers

and employees) Service Regulations, 2001 (For short

"Service Regulations, 2001"). The petitioner had preferred

his reply by Ext.P6 dated 18.08.2008, whereby he explained

that he recorded the interview to expose potential unfair

practice and submitted it as an evidence before the High

Court. That will not attract the provisions of Clauses 17 to 20

of the Service Regulations 2001. Thereby he has not

committed any misconduct.

4. Thereafter the petitioner was served with

chargesheet for the alleged misconduct as per chargesheet

dated 13.10.2008. The charges levelled against the

petitioner are as follows :

"1. You have unauthorisedly audio recorded portion of the selection proceedings for promotion to Scale III officers held on 19.05.2008 in your mobile phone.

2. You have made a transcript of the unauthorisedly audio recorded portion of the selection proceedings and made an unauthorised publication of the same on 09.07.2008."

2025:KER:2936

5. It is stated in the chargesheet that the reply to

the show cause notice as aforementioned is not convincing

and satisfactory. That is the reason for issuing chargesheet.

6. In response, the petitioner has preferred his reply

on 25.10.2008 as per Ext.P10 wherein he tried to justify his

stand stating that he had not received any directions barring

audio recording of official process from any Superiors. The

service regulations also do not prohibit audio recording of

promotion interviews. The act of audio/video recording of the

interview either by the interview board or by the candidate

itself is not patently illegal as such an act facilitates

maintenance of a true record of the official process involved.

Making a true record of an official process cannot be treated

as an illegal act. For every communication/transaction like

appointment, transfer, promotion, leave, salary etc between

the employer and employee in any organisation, a proper

record is always maintained. Copies of such records are

usually made available by the employer to the employee.

Thereby the act of the petitioner cannot be treated as a 2025:KER:2936

misconduct in the present case scenario. Moreover, he has

not published or divulged any information of confidential

nature either to the public or to the bank staff and there is

no staff regulation which prescribes that the process of

interview is confidential in nature. Further asserted that,

submitting such records before the High Court in exercise of

his Constitutional rights shall not be treated as violation of

regulation 18 or regulation 20.

7. On receipt of the reply, the respondent bank

appointed an enquiry officer to enquire into the charges

levelled against the petitioner. Thereafter the enquiry report

was submitted as per Ext.P13, wherein the enquriy officer

found him guilty of the charges. Under such circumstances,

the petitioner preferred an appeal against the findings of the

enquiry officer as per Ext.P15. However, that was dismissed.

Later the petitioner preferred appeal under regulation 47 of

the Regulations, 2001 as per Ext.P17 before the Board of

Directors against the decision. Thereafter the petitioner was

issued with show cause notice pointing out that a 2025:KER:2936

punishment under Regulation 38(1)(b)(ii) of the Regulations

2001 is proposed, and to assign reasons why that should not

be implemented.

8. The petitioner submitted his reply, whereby he

has reiterated his stand that there is no provision in

Regulation 2001 restricting or barring audio recording of

interview proceedings. The management side has failed to

clarify as to which regulation he had violated by audio

recording the interview proceedings. In the absence of

explicit provisions, the management side has no authority to

interpret the service regulation so as to enable them to enter

into a finding that the audio recording is a misconduct. It is

further contended that as per Regulation 72(2), the Central

Government is the only authority to interpret the

regulations. He had recorded the audio of the questions

posed to him and his answers thereto alone. Between the

interview board and the petitioner there was no element of

secrecy and he had not recorded any secret conversation or

discussion between the interviewers or the mark awarding 2025:KER:2936

process.

9. It is further argued that he had never divulged

any confidential information to the public or staff members

so as to violate Regulations 18 and 20 which deal with

publication of official documents to the general public. The

filing of the documents in the Court and making known

contents to the fellow petitioners, Advocate, and court

officials are all essential elements of administration of justice

guaranteed by the Constitution of India and hence that

cannot be termed as a publication within the meaning of

Regulation 20.

10. He further asserted that there were frequent

violations of rules and procedures and he was denied

reasonable chances of defence which he arrayed under 7

instances in Ext.P20 reply and requested to drop the charges

and reinstate him in service without any punishment or

penalty. Declining the contentions raised by the petitioner,

vide Ext.P1 order, punishment was imposed, which is a

major penalty under regulation 39(1)(b)(i) of the 2025:KER:2936

Regulations, 2010. "Reduction to a lower stage in the time

scale of pay by six stages for a period of five years with

cumulative effect, during which you shall not earn

increments of pay and on expiry of the said period, the

reduction shall have the effect of postponing the future

increments of your pay." It is further stated in Ext.P1 that

originally the punishment was proposed under Regulation

38(1)(b)(ii) of the Regulations, 2001. However, the

punishment imposed is in terms of regulation 39(1)(b)(i) of

the Regulations, 2010. The petitioner had preferred another

appeal under regulation 49 of Regulation 2010 before the

Board of Directors as per Ext.P2.

11. In the writ petition the petitioner seeks inter alia

for a direction to call for records leading to Ext.P1 and P3

orders and to quash the same. He seeks further to declare

the suspension order passed against the petitioner as

arbitrary, illegal, unjust and against the provisions of law,

regulation and rules and the enquiry conducted and the

report of the same are biased, vitiated, illegal and in 2025:KER:2936

violation of principles of natural justice.

12. The arguments put forward by S.Prasanth, the

learned counsel for the petitioner was that the petitioner was

targeted by the bank for the reason that he has preferred a

complaint to the Finance Minister and was part of writ

petitions filed before this Court in connection with the

selection process of promotion to Scale III in the year 2006

& 2008. The charge levelled against the petitioner is that he

had produced the transcript of voice record of the interaction

between the petitioner and the interviewer as an evidence

before this Court, which according to the petitioner, is not at

all an offence as per the regulations 2001 as there is no

specific provision which bars the recording of audio of the

interviews conducted for the purpose of selection to the

higher post. It is further contended that during the enquiry,

the enquiry officer acted in a biased manner and prevented

the petitioner from effectively cross examining the

witnesses. Moreover, the punishment imposed was not

specifically provided in the banks' service regulation and the 2025:KER:2936

punishment imposed was not available at the time of

initiation of disciplinary proceedings in the year 2008, since

the provision under which the punishment was imposed was

brought in the regulation only with the revised regulation

2010 which came into force only with effect from

22.09.2010.

13. It is asserted by the counsel for the petitioner

that regulations and rules governing the conduct of

employee are presumed to be operated prospectively. The

initiation of disciplinary proceedings is generally considered

to occur when the chargesheet is issued to the employee.

An employee cannot be punished for the conduct that was

not considered as a violation at the time it occurred. In that

respect the counsel for the petitioner brought the attention

of this Court to Regulations 17, 18 and 20 of the Regulation

2001. For the purpose of convenience these regulations are

reproduced hereunder:

"17. Liability to abide by the regulations and orders Every officer or employee of the Bank shall 2025:KER:2936

conform to and abide by these Regulations, andshall also observe, comply with and obey all orders anddirections which may, from time to time, be given to him by any person or persons under whose jurisdiction, superintendence or control he may: for the time being, be placed.

18. Obligation to maintain secrecy Every officer or employee shall maintain the strict secrecy regarding the bank's affairs of its constituents and shall not divulge, directly or indirectly, any information of a confidential nature either to a member of the public or to the Bank's staff, unless compelled to do so by judicial or other authority or unless instructed to do so by a superior Officer in the discharge of his duties. To signify this every staff shall subscribe to a declaration in a Schecule No.1

20. Contribution to Press, Radio etc. No officer or employee shall contribute to the press or radio or television etc., anything relating to the affairs of the Bank without the prior sanction of the Competent Authority or without such sanction make public or publish any document, paper, or information which may come into his possession in his official capacity."

14. In comparison to the same, the counsel for the

petitioner brought my attention to the corresponding

provisions in 2010 regulations, especially sub-clause (3) of 2025:KER:2936

regulation 21.

18. Liability to abide by the regulations and orders.

Every officer or employee shall conform to and abide by these regulations and shall also observe, comply with and obey all orders and directions which may, from time to time be given to him by any person or persons under whose jurisdiction, superintendence or control he may for the time being be posted.

19. Obligation to maintain secrecy.

Every officer or employee shall maintain the strict secrecy regarding the bank's affair and its constituents and shall not divulge directly or indirectly any information of a confidential nature either to a member of the public or to the Bank's staff, unless in compliance of the order passed by the judicial or quasi judicial authority or unless instructed to do so by a superior officer in writing in discharge of his duties and shall submit a declaration as specified in Schedule

- II.

20..xxxxxxxxxx

21. Contribution to Press, Radio, etc. (1) No officer or employee shall, except with the previous sanction of the Competent Authority, own wholly or in part or conduct or participate in the editing or management of any newspaper or any other periodical publication.

(2) No officer or employee shall, except with the previous sanction of the Competent Authority or except in the bonafide discharge of his duties, 2025:KER:2936

participate in radio broadcast, television or any other electronic media or contribute any article or write any letter either in his won name or anonymously or in the name of any other person to any news paper or periodical or make public, or publish or cause to be published or pass on to others any document, paper or information which may come into his possession in his official capacity.

(3) No officer or employee shall make any audio or video or photo recording of any official matter or publish or cause to publish any official matter without the prior permission of the Competent Authority. (4) No officer or employee shall, except with the previous sanction or the Competent Authority, publish or cause to be published any book or any similar printed matter of which he is the author or not."

(emphasis supplied)

15. On the basis of the said provisions, it is

contended that at the time of initiation, there was no

provision which explains the alleged misconduct as a matter

to be initiated by disciplinary proceedings. The regulation 18

has two limbs. The first part says every officer or employee

shall maintain strict secrecy regarding the banks' affairs of

its constituents and shall not divulge, directly or indirectly

any information of confidential nature either to a member of 2025:KER:2936

the public or to the banks' staff. Whereas there is an

exemption on the second limb which says unless compelled

to do so by the judicial or other authority or unless

instructed to do so by a superior officer in the discharge of

his duties. On the strength of these provisions it is argued

that he has not done any misconduct or delinquency as is

alleged in the memo of charges in the light of regulation 18.

He has not divulged any secrecy regarding the banks affairs

of its constituents directly or indirectly which is confidential

in nature either to a member of public or to the bank's staff.

16. The issue involved in the alleged misconduct is

that the petitioner was orally informed by the management

that he will not be promoted during the 2008 selection

process. The reason stated for that, he had preferred writ

petitions against the process of selection to the Scale III

Officers post in the year 2006. Thereby he apprehends that

the interview board will be prejudicial to him. They will act

with ulterior motive somehow to prevent his promotion to

the Scale III. In order to challenge the same if adverse 2025:KER:2936

circumstances occurred, as an abundant caution, he has

recorded the conversation between the interview board and

the petitioner during the interview. In order to show such

prejudicial approach he had produced transcript of the audio

record before the Court as an Exhibit. That will not amount

to any misconduct or delinquency as contended in the memo

of charges and show cause notice as well as the order of

imposing punishment.

17. It is also contended that only because of the

absence of any specific provision which makes recording of

any official matter or to publish or cause to publish any

official matter was not a misconduct as per the 2001

Regulation, the new provision was brought in under sub-

clause (3) of regulation 21 of the 2010 Regulations. That too

not under "obligation to maintain secrecy" which was

regulation 18 in the 2001 Regulations and 19 in the 2010

Regulations. Instead of that, such amendment or

improvement or addition was carried out under the

regulation 21 of the 2010 Regulations, that too under the 2025:KER:2936

head "Contribution to press, radio etc". Even in that

provision, providing of any materials as evidence, as in the

case on hand, is not restricted. The only restriction imposed

is with the prior permission of the competent authority.

18. It is further argued that Ext.P1 punishment

imposed is bad in law, since the punishment proposed as

Ext.P19 was under Clause 38(1)(b)(ii) of the Regulations,

2001, in accordance with that he has preferred his reply to

the show cause notice. However, the punishment was

imposed under 39(1)(b)(i) of the Regulations, 2010. That

itself is in blatant violations of principles of natural justice

and is bad in law and on the very sole ground Ext.P1 order is

liable to be set aside.

19. In support of his arguments, the learned counsel

for the petitioner brought to my attention, a reported

decision in Government of Andhra Pradesh and others

v. Ch.Gandhi [(2013) 5 SCC 111] wherein the counsel

placed reliance on paragraph 43 of the judgment, which

reads as follows:

2025:KER:2936

"43. The thrust of the matter is whether the respondent could have been imposed punishment under rule 9(vii) of the unamended rules and no other punishment. The rules have been framed under Article 309 of the Constitution. There can be no cavil that by amending the rule, a punishment cannot be imposed in respect of a misconduct or delinquency which was not a misconduct or ground to proceed in a departmental enquiry before the amended rules came into force. Further, a person cannot be subject to a penalty greater than which might have been inflicted under the rule in force at the time of commission of delinquency or misconduct."

20. The facts involved in that case was that

disciplinary proceeding under Rule 5 of the Rules was

initiated against the respondent, a Senior Accountant, in the

Office of the Sub-Treasury, Nakrekal, on the charges that

while functioning as senior most Accountant in the said office

and in-charge of strongroom keys, at the time of surprise

check by the Deputy Director, District Treasury, Nalgonda,

he was absent and had not signed the attendance register in

token of his having attended the office and also not 2025:KER:2936

maintained the movement register as required under the

Rules; that he had failed to keep the currency chest book in

the currency chest and not endorsed every transaction; that

he had passed the bills, cheques and challans in token of

approval of the payment/receipts without signing them; that

he had not properly maintained the strongroom entrants'

the entries were not recorded and signed by him; that he

failed to remain present at the time of depositing money or

withdrawing money from the currency chest or others to

allow to operate the currency chest by using the keys of the

joint custodian; and that he had failed to submit the

currency chest slip to RBI on 15.04.2003 in respect of the

currency chest transactions of 15.04.2003 and also failed to

submit the diary sheets on 15.04.2003 and 16.04.2003.The

question considered in that case was whether the

punishment was imposed on the basis of amended provisions

of the Act, as the particular provision was not available at

the time of the initiation of punishment.

2025:KER:2936

21. The petitioner also brought to my attention with

respect to requirement of notice of conduct that is forbidden

or require by citing the reported decision in Shreya Singhal

v. Union of India [(2015 (5) SCC 1].

63. In Federal Communications Commission v. Fox Television Stations, 132 S.Ct. 2307, it was held:

"A fundamental principle in our legal system is that laws which regulate persons or entities must give fair notice of conduct that is forbidden or required. See Connally v. General Constr. Co., 269 U. S. 385, 391 (1926) ("[A] statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law"); Papachristou v. Jacksonville, 405 U. S. 156, 162 (1972) ("Living under a rule of law entails various suppositions, one of which is that '[all persons] are entitled to be informed as to what the State commands or forbids'" (quoting Lanzetta v. New Jersey, 306 U. S. 451, 453 (1939) (alteration in original))). This requirement of clarity in regulation is essential to the protections provided by the Due Process Clause of the Fifth Amendment. See United States v.

Williams, 553 U. S. 285, 304 (2008). It requires the invalidation of laws that are impermissibly vague. A conviction or punishment fails to comply with due process if the statute or regulation under which it is obtained "fails to provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory 2025:KER:2936

enforcement." Ibid. As this Court has explained, a regulation is not vague because it may at times be difficult to prove an incriminating fact but rather because it is unclear as to what fact must be proved. See id., at 306.

Even when speech is not at issue, the void for vagueness doctrine addresses at least two connected but discrete due process concerns:

first, that regulated parties should know what is required of them so they may act accordingly; second, precision and guidance are necessary so that those enforcing the law do not act in an arbitrary or discriminatory way. See Grayned v. City of Rockford, 408 U. S. 104, 108-109 (1972). When speech is involved, rigorous adherence to those requirements is necessary to ensure that ambiguity does not chill protected speech."(at page 2317)

22. In response to that Sri.Jawahar Jose, the

learned Counsel for the respondent Bank contended that

Regulation 18 of the 2001 Regulations itself is very clear

with respect to the obligation of the employee to maintain

the secrecy of the affairs of the bank. It specifically says,

the obligation of every officer or employee of the bank to

maintain strict secrecy. The maintenance of secrecy is with

regard to the bank's affairs of its constituents and the

employee shall not divulge directly or indirectly any

information of a confidential nature either to a member of 2025:KER:2936

the public or to a bank's staff itself. That itself shows that it

is not the financial transaction alone of the bank. If that be

so, the restrictions would be limited to the divulging of

secrecy to the public or to any other media. Here it is

restricted even among the bank staff. Going by the second

limb itself it can be seen that the said regulation does not

restrain any of the employee from divulging any of the

secrecy on the orders of judiciary or the statutory authority.

Here it is not the case, the petitioner with a predetermined

mind approached the interview board and recorded their

conversations with some malicious intentions. That itself is a

misconduct for which no specific provision other than

regulation 18 is necessitated.

23. The counsel for the respondent had taken

strenuous efforts to convince the court that the act done by

the petitioner, i.e., recording a proceeding of the interview

board in which he participated itself amount to a misconduct

for which the general implication with respect to the duties

and obligations of an employee towards his employer is 2025:KER:2936

suffice/applicable.

24. Here, the interview was conducted in a closed

room between the interview board and the petitioner. That

itself shows that the petitioner is bound to maintain secrecy

of what was transpired between the petitioner and the

interview board, otherwise it would have been possibly a

group discussion between the interview board and the

aspirants to Scale III. Since it is a matter of secrecy, the

interview was conducted behind closed doors, therefore, the

petitioner cannot be heard to say that recording the

conversation between the interview board and himself does

not constitute misconduct of maintenance of secrecy under

Regulation 18. It is also pointed out by the counsel for the

respondent that at the time in which the recording was done

by the petitioner, the recording of something by audio/video

was not common as of today.

25. Even after recording the same, the transcripts of

the said recording was produced before this Court as an

evidence to show that the interview board acted in a 2025:KER:2936

prejudicial way. However, his claim was rejected by this

Court by dismissing the writ petition. That itself shows that

the alleged prejudice was not caused to the petitioner,

however, by producing such document, i.e., the transcripts

of the recording of interview proceeding, he made available

what has transpired between the petitioner and the interview

board among the other staff, who were party to the said

proceedings, thereby the element of obligation to maintain

secrecy among the bank staff itself is violated. The

petitioner has no case that he was compelled by the judiciary

to produce the same to substantiate his case. Under such

circumstances, he cannot be said to have not committed any

misconduct.

26. The counsel for the respondent further argues

that the addition to regulation 21 under Contribution to

press, radio etc. as per clause (3) is only clarificatory in

nature. Not bringing it as a new item as contended by the

counsel for the petitioner and placing the same under the

regulation 21, i.e., contribution to press, radio etc. will not 2025:KER:2936

diminish its relevancy. No change is made to regulation 18,

that still stands as it was at the time of initiation of the

disciplinary proceedings under Regulation 19 in 2001

Regulations, which even today says "every officer or

employee shall maintain the secrecy regarding the banks

affair and its constituents and shall not divulge directly or

indirectly any information of a confidential nature either to a

member of the public or to the banks staff........".

27. Here in the case on hand, since the interview

conducted is purely internal affairs of the bank which

especially comes under the administrative regime of the

bank, without obtaining prior permission from the bank

authorities, the petitioner cannot record any conversation or

videograph of the proceedings between the interview board

and the petitioner. Rather, he had recorded and the same

has been transcripted and produced before the Court and

thereby made to know among other staff of the bank.

Moreover, the writ petition being a public document, he

made the said document available to the public at large.

2025:KER:2936

That itself shows that he violated the regulation 18 of the

Regulations 2001.

28. On the other hand, the contentions of the

counsel for the respondent with respect to the imposition of

a punishment under the new provision was that during the

pendency of the disciplinary proceedings, Regulation 38 of

the Regulations 2001 was amended to incorporate certain

clarifications. Initially under Regulation 2001, regulation 38

(1)(b)(ii), it was "reduction to lower grade or post, or to a

lower scale in the time scale whereas under the regulation

39(1)(v)(i) it is as follows:"Same as provided in item (v) of

clause (a) of sub regulation (1) of Regulation 39. Reduction

to a lower scale in time scale of pay for a specified period

with further direction as to whether or not the officer shall

earn increments of a pay during the period of such reduction

and whether on expiry of such period the reduction shall or

shall not have the effect of postponing the future increments

of his pay. It is contended by the counsel for the respondent

that by the introduction of the said provision and imposing 2025:KER:2936

such punishment the petitioner is benefited, since the earlier

provision, which was only a blanket reduction to a lower

grade or post or to a lower scale in a time scale. Here, such

reduction only for a specified period and it has to clarify

when the said officer shall earn increments of pay during

such reduction and also will have to clarify the acquirement

of future increments. Thereby, the petitioner is not caused

any prejudice. As a matter of fact, the petitioner has retired

from service. Therefore, what remains is only an academic

interest. Under such circumstances, the contentions raised

by the petitioner have no merits and the writ petition is liable

to be dismissed.

29. I have heard Sri.S.Prasanth, the learned counsel

for the petitioner and Sri.Jawahar Jose, the learned Standing

Counsel for the respondent bank.

30. Going by the afore averments it appears that

two questions have to be decided.

1. Whether the petitioner has committed any misconduct ?

2. Whether the punishment imposed under the 2025:KER:2936

amended provisions of Regulation 2010 is sustainable ?

31. With respect to the first question it appears that

unauthorizedly audio recorded portion of the selection

proceeding for promotion to Scale III Officers held on

19.05.2008 in his mobile phone and transcript of the

unauthorized audio recorded portion of the selection process

and made an unauthorised publication of the same on

09.07.2008 will constitute any misconduct. It is to be

decided whether the said alleged activity amounts to a

misconduct under the provisions of Regulation 2001

specifically Regulation 18 of the 2001 Regulations.

32. The primary limb of the regulation 18 says

every officer or employee shall maintain the strict secrecy

regarding the bank's affairs of its constituents and shall not

divulge directly or indirectly any information of the

confidential nature either to a member of the public or to the

banks staff. Going by the averments it can be seen that it is

an admitted fact that the petitioner has recorded a portion of

the selection proceedings for promotion to Scale III Officers 2025:KER:2936

held on 19.05.2008. The discussions or averments concern

whether such recording will amount to misconduct, my

answer to that is mere audio recording of the portion of

selection proceedings for promotion to the Scale III Officers

held on 19.05.2008 pertaining to the petitioner alone will not

constitute misconduct in the absence of any specific

provision. Since there is no clarity in the first limb of

regulation 18 with respect to the extent to which the officer

or employee shall maintain strict secrecy because it says

such secrecy of the bank's affairs or office constituents. That

is not clear with respect to the internal proceedings under

the regime of purely administrative matter of the bank

especially pertains to service matter of an officer/employee

will come within the purview of Regulation 18 of 2001

Regulations. Definitely it is an impropriety but may not be

termed as misconduct, especially there is a lacuna with

respect to the definition of misconduct in the regulations. It

is only a general caution to the officer or employee to

maintain the strict secrecy regarding the banks affairs of its 2025:KER:2936

constituents. That generally implies the financial transactions

in the bank which is the main business of the bank and the

details of the customers etc. If it requires to include a

particular act which amounts to misconduct, even the

matters coming under the regime of Administrative

principles, especially service matters, should be specified in

the regulations. Moreover, there is no specification to

contribute such conduct as an indiscipline.

33. The above view is fortified by the reported

decision in Government of Andhrapradesh v. Ch. Gandhi

cited supra wherein it was held there can be no cavil that by

amending the rule, a punishment cannot be imposed in

respect of a misconduct or delinquency which was not a

misconduct or a ground to proceed in a departmental

enquiry before the amended rules came into force. Further a

person cannot be subject to a penalty greater than which

might have been inflicted under the extent law at the time of

commission of delinquency or misconduct. Here, in the case

on hand, as contended by the counsel for the petitioner, at 2025:KER:2936

the time of initiation of proceedings there was no specific

prescription with respect to restriction of recording and

publication of any official matter without prior permission of

the competent authority in the regulation 2001, which was

subsequently added under the 2010 regulation that too

under regulation, 21 which is meant for contribution to

press, radio etc. Even in that case, it does not cover the

alleged misconduct that the petitioner has produced the

transcript of the recorded voice in the court as an exhibit.

Thereby not divulged the secrecy of the interview among the

banks staff.

34. Similarly going by the reported decision in

Shreya Singhal v. Union of India cited supra this view is

reiterated. The rule or regulation should provide sufficient

notice as to what is prevented or what is a misconduct, it

should be evident to the employee from the rule/regulation,

which should not to be ambiguous.

35. Secondly, the answer with respect to the

unauthorised publication of the transcripts of the 2025:KER:2936

unauthorised audio recorded portion of the selection

proceedings on 09.07.2008, it appears that the said alleged

unauthorised publication is said to be the production of the

said transcription of recording as an exhibit in the writ

petition. The date specified is the date on which the writ

petition was filed. In fact, the matter produced before a

court, whether it is authorisedly or unauthorisedly collected,

cannot be stated to be published. It is a matter of subjudice,

which is only pending before the Court. In that writ petition,

it appears that the bank as well as its employees alone were

parties. The writ petition only pertains to promotion to the

cadre of scale III in the year 2008. It appears that it is a

natural consequence when an incumbent apprehends certain

prejudice or biased attitude on the part of the employer in

conducting the procedures to selection to the promotion to

the next higher post, he may gather some evidence to

substantiate his case before the court of law. It cannot be

termed as an unauthorised publication of affairs of the bank

or it cannot be termed as information of a confidential nature 2025:KER:2936

divulged to a public or to the bank's staff. On the said

circumstances, I cannot accept the views of the counsel for

the bank that by producing the transcripts along with writ

petitions in which the bank and other staff are parties to the

proceedings is an unauthorised publication of the information

of confidential nature to the bank's staff.

36. Since, it is a sine qua non while filing a writ

petition especially challenging the proceedings under the

service jurisprudence, all the affected parties should be in

the party array. Therefore, the mere production of a

transcript which he relies to substantiate his case that the

interview board of the bank, which includes the Chairman,

was biased or prejudicial in this case may not constitute a

misconduct as contended by the counsel for the respondent

as well as the charge raised in the charge sheet.

37. With respect to the second question, it is a

settled position that the law available at the time of initiation

of disciplinary proceedings is to be applied till the completion

of entire proceedings of the disciplinary action. Going by 2025:KER:2936

Ext.P1 itself, it is an admitted fact that the disciplinary

proceedings are initiated as per the provisions of regulation

2001. Even the proposed punishment in the show cause

notice as per Ext.P19 also specifies the punishment under

Regulation 28(1)(b)(ii) of Regulations 2001. He has given

explanations in accordance with the said provisions. But

punishment is imposed as per regulation 39(1)(b) (i) of the

regulations 2010, thereby he was denied an opportunity to

explain or assign his reasons for not imposing such

punishment on him. Thereby principles of natural justice is

violated. Moreover, the punishment imposed, whether it is

lighter or heavier was not available at the time of initiation of

disciplinary proceedings. Thereby the arguments of the

learned counsel for the respondent that the punishment

awarded is lighter than the punishment available under 2001

Regulation and the petitioner is benefited thereby cannot be

countenanced. Accordingly, the punishment imposed as per

Ext.P1 is vitiated.

38. Under such circumstances, the petitioner 2025:KER:2936

succeeded in convincing this Court that Ext.P1 and P3 are

not sustainable. Accordingly, Exts.P1 and P3 are set aside.

In the result, consequential benefits shall be calculated and

disbursed to the petitioner with a period of six months from

the date of receipt of a certified copy of this judgment.

The writ petition is disposed of accordingly.

SD/-

P.M.MANOJ JUDGE das 2025:KER:2936

PETITIONER EXHIBITS

EXHIBIT P1 PHOTOCOPY OF ORDER NO.9/SMGB/E 437/735/2010/IR DATED 14/12/2010 IMPOSING MAJOR PENALTY.

EXHIBIT P2 PHOTOCOPY OF THE APPEAL FILED BY THE PETITIONER ON 13/01/2011 BEFORE THE 2ND RESPONDENT AGAINST EXHIBIT P1.

EXHIBIT P3 PHOTOCOPY OF THE LETTER NO.9/SMGB/447/2011/IR DATED 01/08/2011 ISSUED BY THE FIRST RESPONDENT INTIMATING THE DECISION ON EXHIBIT P2.

EXHIBIT P4 PHOTOCOPY OF THE ORDER NO.9/SMGB/490/2008/IR DATED 25/07/2008 OF THE CHAIRMAN (DISCIPLINARY AUTHORITY) SUSPENDING THE PETITIONER.

EXHIBIT P5 PHOTOCOPY OF THE SHOW CAUSE NOTICE NO.9/SMGB/546/2008/IR DATED 12/08/2008 ISSUED BY THE GENERAL MANAGER, SMGB.

EXHIBIT P6 PHOTOCOPY OF THE REPLY TO EXHIBIT P5 SHOW CAUSE SENT BY THE PETITIONER ON 18/08/2008.

EXHIBIT P7 PHOTOCOPY OF THE WRIT PETITION NO.20987/2008 DATED 09/07/2008 (WITHOUT EXHIBIT).

EXHIBIT P8 PHOTOCOPY OF THE TRANSCRIPT OF THE AUDIO-RECORDED VERSION OF THE INTERVIEW.

EXHIBIT P9 PHOTOCOPY OF THE CHARGE SHEET NO.9/SMGB/E.437/698/2008/IR DATED 13/10/2008 THE FIRST RESPONDENT ISSUED 2025:KER:2936

TO THE PETITIONER.

EXHIBIT P10 PHOTOCOPY OF THE REPLY TO EXHIBIT P9 DATED 25/10/2008.

EXHIBIT P11 PHOTOSTAT OF THE WRIT PETITION NO.34293/2006 BEFORE THE HON'BLE HIGH COURT DATED 20/10/2006.

EXHIBIT P12     PHOTOCOPY OF THE ORDER NO.
                9/SMGB/E437/810/2008/IR DATED
                01/12/2008 ISSUED BY THE FIRST
                RESPONDENT APPOINTING THE INQUIRING
                AUTHORITY.

EXHIBIT P13     PHOTOCOPY OF THE REPORT DATED
                04/06/2010 SUBMITTED BY THE INQUIRING
                AUTHORITY.

EXHIBIT P14     PHOTOCOPY OF THE COUNTER AFFIDAVIT IN
                WPC NO.20987/08 FILED BY THE GENERAL
                MANAGER, SMGB.

EXHIBIT P15     PHOTOCOPY OF THE APPEAL DATED
                23/03/2010 FILED BEFORE THE

DISCIPLINARY AUTHORITY AGAINST DECISION OF THE INQUIRING AUTHORITY.

EXHIBIT P16 PHOTOCOPY OF THE LETTER DATED 30/04/2010 SENT BY THE INQUIRING AUTHORITY INTIMATING THE DECISION OF FIRST RESPONDENT ON EXHIBIT P15.

EXHIBIT P17 PHOTOCOPY OF THE APPEAL DATED 23/02/2010 BEFORE THE SECOND RESPONDENT AGAINST THE DECISION OF THE INQUIRING AUTHORITY.

EXHIBIT P18 PHOTOSTAT COPY OF APPEAL DATED 18/05/2010 FILED BEFORE THE SECOND RESPONDENT AGAINST THE DECISION OF THE INQUIRING AUTHORITY.

2025:KER:2936

EXHIBIT P19 PHOTOCOPY OF ORDER NO.9/SMGB/E437/566/2010/IR ORDER NO.9/SMGB/E437/566/2010/IR DATED 29/10/2010 ISSUED BY THE FIRST RESPONDENT CALLING FOR REPRESENTATION ON THE PROPOSED PUNISHMENT.

EXHIBIT P20 PHOTOCOPY OF THE REPLY TO EXHIBIT P19 DATED 08/11/2010.

EXHIBIT P21 PHOTOSTAT COPY OF THE RELEVANT PAGE OF SOUTH MALABAR GRAMIN BANK (OFFICERS AND EMPLOYEES SERVICE REGULATIONS 2001) CONTAINING REGULATION NO.38 I(B)(II).