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Case Number

Writ Appeal No. 386 of 1996

Advocates

For Appellant.— Sri D. Murugesan
Sri G. Masilamani, Additional Solicitor-General. Southern Region and Sri R. Krishnamachari.

Judges

Sri A.R Lakshmanan
Sri P. Thangavel, JJ.

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Smart Summary

Judgment Summary — Lakshmanan, J.

Factual and Procedural Background

The appellant was employed as a clerk-cum-typist at the bank's Coonoor branch. A chargesheet dated July 4, 1994, accused him of gross misconduct for obtaining reimbursement of Rs. 2,728 by producing a trip sheet for taxi No. TMV 5444 (covering December 2, 1983 to December 11, 1983) that was alleged to be fabricated. The disciplinary authority ordered a domestic enquiry after finding the appellant's explanation unsatisfactory. The enquiry officer found the appellant guilty; the disciplinary authority concurred and, after affording an opportunity to be heard on punishment, imposed dismissal without notice by order DIS/CON:786 dated September 16, 1985. The appellant's appeal was rejected by the appellate authority by order DIS/CON 986 dated November 20, 1985 (confirmed by proceedings in DIS/CON 987 dated December 14, 1985). The appellant filed a writ petition challenging the disciplinary order; the writ petition was dismissed by a learned Single Judge of this Court. The appellant filed the present writ appeal against that dismissal. The appellant sought reinstatement with attendant benefits and challenged the validity of the dismissal order.

Legal Issues Presented

Whether the order of termination was non-speaking and contained reasons sufficient to sustain dismissal.
Whether the appellate authority violated Para. 521(12) of the Sastry award by not affording the appellant a personal hearing on his appeal.
Whether directing the appellant to raise an industrial dispute (as earlier directed by the Single Judge) would cause serious prejudice given the passage of time.
Whether the punishment of dismissal was disproportionate to the misconduct alleged.
Whether the enquiry officer's report conformed to the evidence on record.
Whether the disciplinary authority complied with the conditions prescribed under Paras. 521(10A) and 521(9) of the Sastry award.
Whether this Court, exercising writ jurisdiction, should reappraise the findings of the domestic enquiry or decline relief because an alternative remedy (raising an industrial dispute) was available.

Arguments of the Parties

Appellant's Arguments

The termination order was non-speaking (contained no reasons) and therefore vulnerable to quashing.
The appellate authority did not provide an opportunity for a personal hearing as required by Para. 521(12) of the Sastry award.
The Single Judge's direction to raise an industrial dispute would prejudice the appellant after nearly ten years.
The punishment of termination was disproportionate to the charges.
The enquiry officer's report did not conform with the evidence on record and therefore the writ petition should have been allowed.
The disciplinary authority did not follow conditions prescribed under Paras. 521(10A) and 521(9) of the Sastry award.
During the hearing before this Court, the appellant's counsel also sought a change in punishment.

Respondents' / Management's Arguments

The High Court, exercising writ jurisdiction, should not reappreciate or reassess findings recorded by the enquiry officer or reconsider conclusions reached by the disciplinary and appellate authorities.
The punishment order, as confirmed on appeal, is final and the appellant was obliged to raise an industrial dispute; availability of an alternate remedy made the writ petition not maintainable.
There were no discrepancies in the enquiry officer's evidence appreciation; the enquiry and disciplinary authority had properly considered the entire evidence before arriving at their conclusions.
The appellate authority did consider the appeal on merits and confirmed the disciplinary finding; the appellate order had been sent by registered post and attempts at delivery are recorded, and refusal by the addressee to accept the order amounts to service.
The appellate authority was not obliged to afford a personal hearing in the absence of any request; the appellant did not substantiate any request for personal hearing with acceptable proof.
The punishment of dismissal was justified due to the gravity and seriousness of making false monetary claims based on allegedly fabricated vouchers/documents in a banking institution where utmost integrity is required; recovery of the sum (Rs. 2,728) had been effected.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749 : A.I.R. 1996 S.C. 484]	The disciplinary authority and appellate authority have discretion to impose appropriate punishment keeping in view the gravity of misconduct; ordinarily the High Court/Tribunal should not substitute its view on penalty, but if the punishment shocks the conscience, the High Court/Tribunal may (a) direct reconsideration of penalty or (b) in rare cases itself impose appropriate punishment with cogent reasons.	The Court relied on this authority to evaluate whether the dismissal was disproportionate; finding the punishment to be harsh and excessive, the Court modified the punishment (reinstatement with continuity of service but without back-wages for the relevant period) rather than uphold dismissal. The Court also noted that the modification was made on the facts and should not be cited as a precedent by others in the bank.

Court's Reasoning and Analysis

The Court reviewed the submissions of counsel for both sides and the material placed before it, including the enquiry record, impugned orders and documents relating to service of the appellate order. Regarding service of the appellate order, the Court examined the registered letter and its envelope which bore an endorsement showing multiple unsuccessful delivery attempts; the Court treated the circumstances, together with the appellant's prior refusal to accept the copy when invited to receive it at the Coonoor branch, as sufficient service.

On the contention of denial of a personal hearing before the appellate authority, the Court observed there was no acceptable proof that the appellant had requested such a hearing; in the absence of any request, the appellate authority was not under an obligation to afford a personal hearing. Consequently the Court rejected the contention that the appellant was denied a right to be heard on appeal.

On merits and penalty, the Court recognized the settled principle from B.C. Chaturvedi that courts should not normally substitute their view on penalty, but that intervention is justified where the penalty shocks the conscience. The Court applied that principle to the facts: the misconduct involved a claimed reimbursement of Rs. 2,728 on allegedly fabricated trip sheet; that amount had been recovered; the appellant's explanation had been rejected by the authorities; the appellant's prior service record on the material before the Court did not show blemishes; the appellant was relatively young at the time and had substantial potential further service; and the appellant had not tampered with customer accounts. The Court also noted long litigation (about 12 years) and that the dismissal would permanently ruin the appellant's career.

Balancing these factual considerations against the gravity of dishonesty in the banking sector (acknowledged by the Court and emphasized by the management), the Court concluded that dismissal was harsh, excessive and disproportionate to the charge and the circumstances of this case. Rather than pronounce complete exoneration or reimpose a different lesser punishment directly, the Court fashioned a remedial order: it modified the punishment by directing reinstatement with continuity of service but without back-wages for the period from the date of issuance of the charge memorandum until the date of the judgment (i.e., the appellant would forgo salary for that period). The Court explained that this modification was based on the facts and circumstances of the case and therefore expressly stated it should not be quoted as a precedent by other employees of the same bank.

Holding and Implications

WRIT APPEAL ALLOWED IN PART; PUNISHMENT MODIFIED.

Holding (direct effect): The Court set aside the measure of dismissal and ordered reinstatement of the appellant in service with continuity of service but without back-wages for the period from the date of issuance of the charge memorandum until the date of the judgment. The writ appeal was allowed in the terms indicated. The Court awarded no costs.

Implications:

The direct consequence is restoration of the appellant's employment with continuity but no monetary compensation (no back-wages) for the period of suspension/disciplinary process up to the judgment.
The Court exercised supervisory jurisdiction to modify penalty because it found the punishment disproportionate in the facts of this case; it relied on the principle from B.C. Chaturvedi that intervention is permissible where the penalty shocks the conscience.
The Court explicitly stated that this judgment was based on the specific facts and circumstances and "cannot be quoted as a precedent by others working in the same bank," indicating the Court did not intend to lay down a broad binding rule for similar future cases in that employer's context.
No broader law reform or general precedent was declared beyond application of existing principles governing judicial review of disciplinary penalties.

Disposition: The writ appeal was allowed in the terms set out above. No costs.

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S. Murugadhas v. State Bank Of India

The Judgment of the Court was delivered by

Lakshmanan, J.:— This writ appeal is filed against the order of a learned Single Judge of this Court dismissing the writ petition filed by the appellant herein with a direction to approach the Labour Court by raising an industrial dispute against the order of dismissal from service.

2. The short facts are as follows: The appellant/writ-petitioner was an employee and working as clerk-cum-typist of the bank in its Coonoor branch. In respect of certain acts of gross misconduct which he was reported to have committed, a chargesheet, dated July 4, 1994, was issued to him by the disciplinary authority. The charge against the appellant was that he obtained payment of a sum of Rs. 2,728, by way of reimbursement in respect of journeys under leave fare concession allegedly performed by him partly by bus and partly by taxi, producing in support of his claim a trip sheet in respect of taxi No. TMV 5444 covering the period December 2, 1983 to December 11, 1983, which trip sheet was reported as a fabricated one. In other words, the charge against the appellant was that he received taxi fare from the bank in respect of journeys which he had not actually performed by taxi on the strength of a false and fabricated trip sheet and that if proved would be an act of gross misconduct in terms of Para. 521(4)(f) of the Sastry award (i.e, doing any act prejudicial to the interests of the bank).

3. The appellant submitted an explanation in answer to the said chargesheet. As the disciplinary authority was not satisfied with the petitioner's explanation, he ordered a domestic enquiry to be conducted in respect of the said charge. The appellant participated in the enquiry where evidence was recorded and the appellant was afforded a full and fair opportunity to defend. The enquiry officer recorded a finding that the appellant was guilty of charges framed against him. The disciplinary authority after going through the report of the enquiry and on proper consideration of the evidence and the facts and circumstances of the case concurred with the finding recorded by the enquiry officer that the appellant was guilty of having committed the act of misconduct covered by the chargesheet, proposed to impose the punishment of dismissal from service without notice and issued notice to the appellant as to why the said punishment be not imposed on him. After affording the appellant an opportunity of hearing as regards the punishment of dismissal without notice, the second respondent imposed the said punishment by the order DIS/CON:786, dated September 16, 1985, the validity of which is challenged by the appellant in this writ petition.

4. The appellant submitted an appeal against the above order to the appellate authority who also rejected the appeal by his order DIS/CON 986, dated November 20, 1985. Aggrieved by the above orders, the appellant has filed the writ petition to call for the records relating to the order of the second respondent made in Letter No. DIS/CON :768, dated September 16, 1985. as confirmed by the order of the first respondent vide his proceedings in DIS/CON 987. dated December 14, 1985, and to quash the same and direct the respondents to reinstate the appellant with all the attendant benefits.

5. The writ petition was resisted by the management by filing a detailed counter-affidavit. The writ petition was dismissed by the learned Single Judge of this Court and aggrieved by the said order; the above writ appeal has been filed.

6. We have heard Sri D. Murugesan, learned counsel for the appellant and Sri G. Masilamani, learned Additional Solicitor-General for Sri R. Krishnamachari. Sri D. Murugesan, learned counsel for the appellant, raised the following contentions:

(a) The writ petition could have been allowed on the sole ground that the order of the termination does not contain any reason whatsoever and the same is non-speaking.

(b) The appellate authority did not give any opportunity of personal hearing to the appellant as contemplated in Para. 521(12) of Sastry award.

(c) The direction given by the learned Single Judge to raise an industrial dispute would result in serious prejudice to the writ-petitioner/appellant after a period of nearly ten years.

(d) The punishment of termination is disproportionate to the charges levelled against the writ-petitioner/appellant.

(e) The report of the enquiry officer is not in confirmity with the evidence available on record and consequently ought to have allowed the writ petition.

(f) The disciplinary authority did not follow the conditions prescribed under Paras. 521(10A) and 521(9) of the Sastry award.

Sri D. Murugesan, learned counsel for the appellant, at the time of hearing has also invited our attention to the pleadings and the documents filed before the enquiry officer and other connected records and also of the impugned orders in the writ petition and also of the learned Single Judge.

7. Sri G. Masilamani, learned Additional Solicitor-General, arguing contra contended that this Court exercising writ jurisdiction will not reappreciate and reassess the findings recorded by the enquiry officer and or reconsider the correctness of the conclusion arrived at by both the respondents. According to the learned Additional Solicitor-General. the order of punishment of the second respondent as confirmed by the first respondent in an appeal filed by the appellant has become final and conclusive and is binding on him and that the appellant is bound by law to raise an industrial dispute and in view of the availability of alternative remedy, the writ petition is liable to be dismissed as not maintainable. The learned Additional Solicitor-General has also submitted that there are no discrepancies in the evidence recorded by the enquiry officer or in the appreciation of the evidence tendered as alleged and that the enquiry officer recorded the finding only after considering the entire evidence. Likewise, the disciplinary authority considered the evidence and it was only after due appreciation thereof that he concurred with the finding recorded by the enquiry officer. Therefore, this Court will not reassess the evidence and reconsider the matter decided by the respondents.

8. While replying to the arguments of Sri D. Murugesan that the order passed by the appellate authority has not been served on him Sri G. Masilamani submitted the following. According to him, the appeal was duly and properly considered by the first respondent as the appellate authority who thereafter confirmed the punishment and rejected the appeal and that the question of giving opportunity of personal hearing to the appellant would arise only in case of dismissal from banks service and the employee desired to have such a personal hearing. It is stated that the appellant did not in his appeal or by any subsequent letter, desired to have any personal hearing. Learned Additional Solicitor-General has also denied that the appellant approached the first respondent with a letter, dated October 10, 1985, requesting for a personal hearing. Further, the appellant did not place any proof before the authorities concerned of even before this Court for sending such a letter, dated October 10, 1985, requesting for a personal hearing. In fact he refused to receive the order of the appellant authority rejecting his appeal since the appellate authority has not afforded an opportunity of personal hearing as requested by him. In fact, the had also made an endorsement stating “refused for reasons that personal hearing was not afforded to me as per my request.” At the time of hearing, learned Additional Solicitor-General invited our attention to the registered letter sent by the management under acknowledgement due to the appellant under reference RM 11.12, dated December 4, 1985, enclosisng the copy of the final order passed by the appellate authority. The original envelope was opened in the presence of both parties and their advocates in the open Court. In the envelope there is an endorsement “Addressee not found in several beat days, i.e 6/12, 7/12, 9/12, 10/12, 11/12, 12/12 and on 13/12. Hence it was returned to the sender”. We have also perused the order of appellate authority sent along with the said letter. The appellate authority has considered the case of the appellant on merits and in depth and confirmed the findings of the disciplinary authority. There is also no merits in the contention of the learned counsel for the appellant that the order of the appellate authority has not been served on him. As already noticed, earlier when he was asked to come and receive the order of the appellate authority at the Coonoor branch, he refused to receive the same, on the ground that he was not afforded an opportunity of personal hearing as requested by him before the appellate authority. It is settled law that a person refused to receive any order, that itself will amount to sufficient service of the said order on him. In the absence of any acceptable proof that the appellant made a request for a personal hearing, the appellant now cannot say that he was not afforded an opportunity for personal hearing which in our opinion has not been substantiated by any material worth noticing. In the absence of any request, we are of the view that the appellate authority is not under any obligation to afford a personal hearing to the appellant in respect of his appeal.

9. Sri D. Murugesan has not also seriously argued the case on merits. However he pleaded for change in the punishment. According to him, the punishment imposed was not only disproportionate, but also very harsh did excessive, taking into consideration of the offence said to have been committed by the appellant. Furthermore, Sri G. Masilamani, learned Additional Solicitor-General, was very serious in replying to the said argument. According to him, the authorities in imposing the punishment of dismissal, has taken into account the circumstances, namely, the gravity and serious nature of the misconduct making false monetary claims based on false and fabricated vouchers and documents in an financial institution where utmost integrity on the part of its employee is to be expected. He further submitted that the amount involved though a nominal one, cannot be a ground for altering the punishment already imposed by the authorities concerned. We are unable to accept the said contention of the learned Additional Solicitor-General, while agreeing with the other contentions and submissions of the learned Additional Solicitor-General. We are of the view that the punishment imposed is not only harsh, excessive but also disproportionate to the charges made against the appellant. In fact, the Supreme Court in the case of B.C Chaturvedi v. Union of India [(1995) 6 SCC 749 : A.I.R 1996 S.C 484], held that the disciplinary authority and on appeal the appellate authority are invested the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct, and that the High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. It is further stated that if the punishment imposed by the disciplinary authority or the appellate authority shocks and conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. Thus, strengthened by the above observation of the Supreme Court, we now proceed to consider as to whether the punishment of dismissal imposed by the authorities concerned is disproportionate as alleged or just and reasonable as contended by the management. The charge against the appellant was that he obtained payment of Rs. 2,728 by way of reimbursement in respect of journeys allegedly performed by him partly by bus and partly by taxi by producing in support of his claim a trip sheet in respect of taxi No. TMV 5444 covering a period from December 2, 1983 to December 11, 1983, which trip sheet was reported as a fabricated one. It is also not in dispute that the said sum of Rs. 2728 has also been recovered from the appellant. Though an explanation was made by the appellant that though in fact he performed the journey, his explanation was not accepted by the disciplinary and appellate authorities. Past record of service of the appellant has nothing to indicate either way. The appellant is also aged about 32 when he filed the writ petition in the year 1986. The appellant was appointed in the bank as a clerk-cum-typist on October 12, 1978, and the impugned order of dismissal was passed by the second respondent by his order, dated September 16, 1985. The bank also did not place before the Court any other record to show that his services was with any blemish except for the charges in question. Both the appellant and the bank management had spent about 12 years as on date in fighting the litigation in one forum or the other. The appellant has got another about 13 to 14 years of service, in the bank. The appellant has not played with any customer's account/amount and the only charge was that he claimed reimbursement of some amount alleged to have been spent by him. We are of the view, for the misconduct committed by him, such deterrent punishment of dismissal is not called for. It is also pointed out on behalf of the appellant that in respect of other employees who committed acts of misconduct similar in nature as committed by him, only minor punishment was imposed. But such contention of the appellant was brushed aside by the management simply on the ground that the acts committed by the appellant are not comparable with that of the others. We are of the view that the imposition of such an extreme and harsh punishment would once for all ruin the career of the employee Therefore, we feel that the appellant should be made to forego the entire salary for the period from the date of issuing charge memo till today. Such a punishment, in our opinion would meet the ends of justice. The management also should feel happy that for wrongly claiming a sum of Rs. 2,728, the appellant is made to forego his entire salary for the period mentioned above. The appellant also will not repeat such a mistake since he had been made to forego the salary for the period in question, and at the same time spending for his litigation by borrowing moneis from other sources, and also for the maintenance expenses of the family. As rightly pointed out by the learned Additional Solicitor-General, absolute integrity is essential from persons who are working in banking sector. Therefore, the proper punishment in our opinion, would be reinstatement in service with continuity of service but without back-wages for the period in question. We make it clear that the punishment imposed by the authorities below has been modified as indicated above on the basis of the facts and circumstances of this case. Therefore, this judgment cannot be quoted as a precedent by others working in the same bank.

10. For all the foregoing reasons, the writ appeal is ordered in the above terms. No costs.

S. Murugadhas v. State Bank Of India

Judgment Summary — Lakshmanan, J.

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant's Arguments

Respondents' / Management's Arguments

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

S. Murugadhas v. State Bank Of India

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