Telangana High Court
Gundala Chandraiah vs The Central Bank Of India on 31 July, 2024
THE HONOURABLE SMT. JUSTICE T. MADHAVI DEVI
WRIT PETITION NO.24922 OF 2019
AND
WRIT PETITION NO.16703 OF 2020
COMMON ORDER
W.P.No.24922 of 2019
In W.P.No.24922 of 2019, the petitioner is seeking a Writ or
order particularly one in the nature of Writ of Certiorari calling for
records in connection with Memo dt.17.02.2018 issued by the 2nd
respondent and to declare it as illegal as it is hit by principle of res
judicata and to declare the subsequent enquiry and administrative order
dt.09.10.2018 dismissing the petitioner from service as illegal, arbitrary
and vitiated and consequently to direct the 2nd respondent to set aside the
same and reinstate the petitioner into service with all consequential
benefits and to pass such other order or orders.
2. Brief facts leading to the filing of W.P.No.24922 of 2019 are that
the petitioner was engaged as a daily wage worker as Safai Karamchari
in the 1st respondent bank in Nalgonda District in the year 2007. On
07.11.2012, the 1st respondent bank issued a Notification inviting
W.P.Nos.24922/2019 & 16703/2020
applications for recruitment for the post of Safai Karamchari-cum-sub
staff. The petitioner submitted his application and the respondent bank
issued offer of appointment letter dt.22.03.2013 and subsequently office
order dt.30.03.2013 directing the petitioner to join duty and report to
Nidamanoor Branch. The petitioner's probation was confirmed on
28.09.2013. Subsequently, the 2nd respondent issued a Memo
dt.28.03.2014 alleging that the petitioner has submitted fake school
transfer certificate and study and conduct certificate and therefore, has
committed gross misconduct in terms of Provision 12(b) and Clause
5(m) of the Memorandum of Disciplinary Action and Procedure thereof
and called upon the petitioner to explain as to why disciplinary action
should not be initiated against him. The petitioner submitted his
explanation on 11.04.2014 stating that the certificates submitted by him
are genuine and denied the allegation of submitting fake certificates.
After due enquiry and being satisfied with the explanation of the
petitioner, the 2nd respondent revoked the suspension order vide letter
dt.04.08.2014 and the petitioner joined the duty on 05.08.2014 and after
the said date, he was transferred from Nidamanoor Branch to the 3rd
respondent branch and has been working in the 3rd respondent as Peon.
W.P.Nos.24922/2019 & 16703/2020
3. It is submitted that the 2nd respondent again issued orders
dt.16.02.2018 suspending the petitioner from service on the ground that
the petitioner has submitted fake transfer certificate and study certificate
to obtain employment in the bank. A Memo dt.17.02.2018 was issued to
the petitioner and the petitioner personally visited the 2nd respondent
office and explained that he never submitted any fake certificate and that
on earlier occasion, similar notice was issued and later on after
considering the petitioner's explanation, the suspension order has been
revoked. All the documents were submitted to the 2nd respondent, but no
explanation in writing was given. The petitioner submits that he was
under the impression that the 2nd respondent would consider the same,
but the 2nd respondent issued charge sheet dt.05.05.2018 stating that as
per the verification of education certificates of the petitioner by the
District Educational Officer, Nalgonda District, it is reported that the
Head Master of the school from which the petitioner has submitted the
certificates, informed that as per school records available, there is no
admission with the name of the petitioner and certified that the
certificates are fake/not genuine. Thereafter, an enquiry officer was
appointed and after due enquiry, the enquiry report dt.27.08.2018 was
furnished to the petitioner along with letter dt.01.09.2018. However, the
W.P.Nos.24922/2019 & 16703/2020
petitioner did not submit his objections to the report of the enquiry
officer on the ground that the enquiry conducted was in clear violation
of the settled principles of natural justice.
4. The learned counsel for the petitioner submits that during the
course of enquiry, i.e., while marking the documents, the petitioner has
raised objections, but the enquiry officer had overruled the objections
and proceeded with the enquiry. It is submitted that thereafter, a show-
cause notice dt.29.09.2018 was issued proposing to award the
punishment of dismissal from service and directed the petitioner to
attend personal hearing on 06.10.2018. The petitioner appeared for
personal hearing and thereafter, the 2nd respondent issued the
administrative order dt.09.10.2018 dismissing the petitioner from
service. The petitioner has therefore challenged the Memo dt.17.02.2018
stating that the petitioner has submitted fake school certificates, on the
ground that it is hit by principle of res judicata and therefore, the
subsequent proceedings are illegal. Thus, challenging the Memo
dt.17.02.2018 and the subsequent dismissal order dt.09.10.2018,
W.P.No.24922 of 2019 has been filed.
W.P.Nos.24922/2019 & 16703/2020
5. Learned counsel for the petitioner submitted that on the very
same allegation, a charge memo was issued on the earlier occasion in
the year 2014 and thereafter, again in the year 2018, the 2nd respondent
has issued the impugned charge memo dt.17.02.2018 with the same
allegation which has been assumedly dropped earlier and therefore, for
the very same reason, action cannot be initiated against the petitioner a
second time.
6. In support of his contention on the applicability of the principle of
res judicata to this case, he placed reliance upon the following
judgments:
(1) Bandaru Kavitha Vs. Chief Manager, Central Bank of India,
Mumbai and others 1.
(2) Central Bank of India represented by its Chief Manager,
Central Office, Mumbai and others Vs. D. Laxmi Bai 2.
(3) Central Bank of India and others Vs. Bandaru Kavitha 3.
Common order in W.P.Nos.32889, 32890, 32895, 32904, 32964 & 33161 of 2017
dt.04.09.2019 of the High Court for the State of Telangana, Hyderabad.
Common judgment in W.A.Nos.895, 896, 897, 904, 905 and 907 of 2019 dt.26.02.2020 of
the High Court for the State of Telangana, Hyderabad.
Special Leave to Appeal (C) No.16082 of 2020 dt.20.01.2021 of the Hon'ble Supreme
Court of India.
W.P.Nos.24922/2019 & 16703/2020
(4) The State of Rajasthan Vs. Nemi Chand Mahela and others 4.
7. Learned Standing Counsel for the respondent bank relied upon the
averments made in the counter affidavit and submitted that the earlier
notice dt.28.03.2014 for submission of fake certificates was revoked by
the authorities by believing the reply of the petitioner, but subsequently
when the bank made enquiries about the credentials and came to know
that the petitioner herein has submitted fake and fabricated transfer
certificate and conduct certificate from the school, an order of
suspension dt.16.02.2018 was issued and a show-cause memo
dt.17.02.2018 was issued as to why disciplinary action should not be
initiated against the petitioner. It is submitted that the principle of res
judicdata is not attracted to the notice dt.17.02.2018. It is submitted that
the petitioner has not given any explanation to the show-cause memo
dt.17.02.2018 and thereafter a charge sheet was issued on 05.05.2018
and after due enquiry, the punishment of dismissal from service was
imposed on the petitioner. It is further submitted that the petitioner is
award staff covered by Bi-Partite Settlement under the Industrial
Disputes Act and therefore, there is an alternative and efficacious
remedy available to the petitioner to approach the Industrial Tribunal
2019(7) Scale 143
W.P.Nos.24922/2019 & 16703/2020
and therefore, this Writ Petition is not maintainable on this ground as
well.
8. The learned Standing Counsel for the respondent bank has placed
reliance upon the following judgments in support of his contentions.
(i) State of Karnataka and another Vs. N.Gangaraj5.
(ii) State of Meghalaya and others Vs. Mecken Singh N.
Marak6.
(iii) Devendra Kumar Vs. State of Uttaranchal and others 7.
(iv) Union of India, Ministry of Railways, rep. by its
Secretary, New Delhi and others Vs. Bhupati Singh8.
(v) Union of India and others Vs. Chaman Rana 9.
(vi) Indian Oil Corporation Ltd. Vs. Rajendra D.
Harmalkar 10.
(2020) 3 SCC 423
(2008) 7 SCC 580
(2013) 9 SCC 363
2019 (1) ALT 571 (D.B.)
(2018) 5 SCC 798
2022 SCC OnLine SC 486
W.P.Nos.24922/2019 & 16703/2020
The learned Standing Counsel submitted that even if the Court were of
the opinion that the punishment is disproportionately high compared to
the gravity of charges, the Court should only remand the matter back to
the authorities for reconsideration of the issue, but this Court, under
Article 226 of the Constitution of India, cannot and should not modify
the punishment.
Consideration by Court
9. Having regard to the rival contentions and the material on record,
this Court finds that in similar batch matters in the case of Bandaru
Kavitha Vs. Chief Manager, Central Bank of India, Mumbai and
others (1 supra), this Court has considered the case of similarly placed
persons who committed misconduct of producing false certificates that
they have studied only up to Class VIII, even though they had higher
qualifications and this Court has taken a liberal view and has held that
the punishment of dismissal is too harsh for the alleged charge of
submitting fake educational qualification certificates in respect of daily
wage employees who got recruited through Notification. This Court had
therefore set aside the punishment and had remanded the matter to the
appellate authority for consideration and imposition of any other lesser
punishment than the punishment of dismissal or removal or compulsory
W.P.Nos.24922/2019 & 16703/2020
retirement by taking into consideration all the facts and circumstances of
the case. In this case, it is an admitted fact that the petitioner has
submitted fake school certificates. However, the case on hand is
distinguishable from the facts in the case of Bandaru Kavitha Vs.
Chief Manager, Central Bank of India, Mumbai and others (1
supra). In the said decision, the petitioners therein had submitted
certificates that they are qualified only up to 7th which was the
maximum qualification for the said post in spite of possessing higher
qualification. Therefore, it is the case of not only making incorrect
statements but also submission of fake certificates to that effect. In the
present case before this Court also, the petitioner has submitted fake
educational qualification of even the minimum educational qualification.
Therefore, the said decision though is not ipso facto applicable to the
case before this Court, it is applicable to the extent of the direction to
impose a lesser punishment than dismissal from service.
10. The principle of res judicata would not apply in this case, as the
proceedings initiated in the year 2014 did not end in dropping of the
charges after due enquiry. Though the proceedings were not continued
after considering the explanation submitted by the petitioner, the second
W.P.Nos.24922/2019 & 16703/2020
notice in the year 2018 for due enquiry into the matter cannot be hit by
the principle of res judicata.
11. The Hon'ble Supreme Court in the case of Indian Oil
Corporation Ltd. Vs. Rajendra D. Harmalkar (10 supra), while
referring the case of Lucknow Kshetriya Gramin Bank (Now
Allahabad, Uttar Pradesh Gramin Bank) Vs. Rajendra Singh 11, has
laid down the following principles.
"19. The principles discussed above can be summed up and
summarised as follows:
19.1. When charge(s) of misconduct is proved in an enquiry the
quantum of punishment to be imposed in a particular case is
essentially the domain of the departmental authorities.
19.2. The courts cannot assume the function of
disciplinary/departmental authorities and to decide the quantum of
punishment and nature of penalty to be awarded, as this function is
exclusively within the jurisdiction of the competent authority.
19.3. Limited judicial review is available to interfere with the
punishment imposed by the disciplinary authority, only in cases where
such penalty is found to be shocking to the conscience of the court.
19.4. Even in such a case when the punishment is set aside as
shockingly disproportionate to the nature of charges framed against
the delinquent employee, the appropriate course of action is to remit
the matter back to the disciplinary authority or the appellate authority
(2013) 12 SCC 372
W.P.Nos.24922/2019 & 16703/2020
with direction to pass appropriate order of penalty. The court by itself
cannot mandate as to what should be the penalty in such a case.
19.5. The only exception to the principle stated in para 19.4
above, would be in those cases where the co-delinquent is awarded
lesser punishment by the disciplinary authority even when the charges
of misconduct were identical or the co-delinquent was foisted with
more serious charges. This would be on the doctrine of equality when
it is found that the employee concerned and the co-delinquent are
equally placed. However, there has to be a complete parity between
the two, not only in respect of nature of charge but subsequent
conduct as well after the service of charge-sheet in the two cases. If
the co-delinquent accepts the charges, indicating remorse with
unqualified apology, lesser punishment to him would be justifiable."
12. The Hon'ble Supreme Court in the case of Devendra Kumar Vs.
State of Uttaranchal and others (7 supra) has laid down that where the
petitioner suppressed material information sought by the employer as to
whether he had ever been involved in a criminal case, furnishing of false
information itself amounts to moral turpitude and is separate and distinct
from the involvement in a criminal case and such a misconduct cannot
be permitted. The Hon'ble Supreme Court has observed that if by
committing fraud any employment is obtained, the same cannot be
permitted to be countenanced by a Court of law as the employment
secured by fraud renders it voidable at the option of the employer.
W.P.Nos.24922/2019 & 16703/2020
13. In the case of State of Meghalaya and others Vs. Mecken Singh
N. Marak (6 supra), the Hon'ble Supreme Court has observed that
while considering the proportionality of sentence imposed on a
delinquent at the conclusion of departmental enquiry, the Court should
also take into consideration, the mental set-up of the delinquent, the type
of duty to be performed by him and similar relevant circumstances
which go into the decision-making process and if the charged employee
holds the position of trust where honesty and integrity are inbuilt
requirements of functioning, it would not be proper to deal with the
matter leniently and misconduct, in such cases has to be dealt with with
iron hands. In the said case, the Hon'ble Supreme Court was considering
the case of a police constable and as it is a disciplined force and hence
held that the punishment imposed by the competent authority should not
be interfered with in a casual manner.
14. In the case of State of Karnataka and another Vs. N.Gangaraj
(5 supra), the Hon'ble Supreme Court has reiterated that the High Court
should not interfere with the order of punishment unless the finding
recorded by the disciplinary authority is not supported by evidence or is
unreasonably arrived at.
W.P.Nos.24922/2019 & 16703/2020
15. The petitioner in W.P.No.24922 of 2019 is only working as an
Attender i.e., Safai Karamchari and is not in the post of trust and
fiduciary capacity and therefore, as directed by the Hon'ble Supreme
Court, his case can be reconsidered by the employer having regard to his
long service with the respondent bank from 2007 and having regard to
his conduct and service in the bank and if it was without any complaints
whatsoever with regard to employment.
16. In W.P.No.16703 of 2020, the petitioner is seeking a Writ or
order particularly one in the nature of Writ of Certiorari calling for
records in connection with charge sheet dt.16.04.2015 and consequential
dismissal order dt.14.12.2015 and quash the same and to pass such other
order or orders.
17. Brief facts leading to the filing of W.P.No.16703 of 2020 are that
the petitioner was appointed as a Peon on daily wage basis in the 1st
respondent bank in Nalgonda District in February, 2008. On 14.08.2012,
the 1st respondent bank issued a Notification inviting applications for
recruitment for the post of Safai Karamchari-cum-sub staff. The
petitioner submitted his application and the respondent bank issued offer
of appointment letter dt.30.03.2013 directing the petitioner to join duty
W.P.Nos.24922/2019 & 16703/2020
and report to Kalyan Nagar Branch. The petitioner's services were
confirmed with effect from 28.09.2013 vide letter dt.23.04.2014.
Subsequently, the 4th respondent issued a Memo dt.11.03.2015 alleging
that on enquiry with concerned school authorities, it was informed that
the transfer certificate, marks sheet and study and conduct certificate
submitted by the petitioner were not available with the school authorities
and therefore, they are not genuine and thus, the petitioner has
committed gross misconduct in terms of Clause 5(m) of the
Memorandum of Settlement on Disciplinary Action and Procedure
thereof for Award Staff Agreement and called upon the petitioner to
explain as to why disciplinary action should not be initiated against him.
The petitioner submitted his explanation on 06.04.2014 stating that he
has studied in Adarsha Gurukula Vidyalam, Kattangur and he shall not
be held responsible for the records not being available in the said school.
It is submitted that the said school was closed in the year 2011 and the
records given by the Correspondent of the said school are kept at SPHS,
Kattangor under the supervision of Deputy District Educational Officer,
Nalgonda and that non-availability of records in the school does not
mean that the certificates are not genuine. Without considering the
explanation of the petitioner, the 2nd respondent without assigning any
W.P.Nos.24922/2019 & 16703/2020
reason issued a charge sheet dt.16.04.2015 stating that as per the
verification of certificates by the Gazetted Head Master, ZPHS,
Kattangur, Nalgonda District, it is informed that the certificates
produced by the petitioner are not available in the admission book and
TC book of the said school. Thereafter, an enquiry officer was appointed
and after due enquiry, the enquiry report dt.20.10.2015 was furnished to
the petitioner along with letter dt.20.10.2015. The petitioner submitted
his objections to the report of the enquiry officer stating that the maker
of the documents was neither produced before the enquiry officer nor
was his evidence recorded in the enquiry which is in violation of
principles of natural justice. It is submitted that thereafter, a show-cause
notice dt.01.12.2015 was issued proposing to award the punishment of
dismissal from service and directed the petitioner to submit his
objections against the proposed punishment in the personal hearing on
09.12.2015. The petitioner appeared for personal hearing and thereafter,
the 2nd respondent issued the order dt.14.12.2015 dismissing the
petitioner from service without notice. Challenging the dismissal order
dt.14.12.2015, W.P.No.16703 of 2020 has been filed.
W.P.Nos.24922/2019 & 16703/2020
Consideration by Court
18. The issue being decided in both these Writ Petitions is similar
except for some factual variance. For same reasons as were discussed in
W.P.No.24922 of 2019 and in terms of thereof, W.P.No.16703 of 2020
is also disposed of on similar lines.
19. In view of the above facts and circumstances and particularly that
in similar cases, this Court had remanded the matter to the appellate
authority for reconsideration of the quantum of punishment, this Court is
inclined to entertain both these Writ Petitions and direct the respondents
to reconsider whether it is possible to impose lesser punishment than the
punishment of removal from service.
20. With the above direction, both the Writ Petitions are disposed of.
No order as to costs.
21. Pending miscellaneous petitions, if any, in both the Writ Petitions
shall stand closed.
___________________________
JUSTICE T. MADHAVI DEVI
Date: 31.07.2024
Svv
