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Judgment
Navin Sinha, Actg. C.J.
We have heard Counsel for appellant and the respondents.
The present appeal arises from order dated 26.3.2014 dismissing Writ Petition (S) No. 1486 of 2014 to avail the alternate remedy under the Industrial Disputes, Act.
The appellant is aggrieved by the appellate order dated 8.6.2013 maintaining the aspect of punishment pursuant to a departmental proceeding but reducing it from the earlier punishment of being brought down to a lower stage in the scale of pay upto a maximum of two stages into being brought down to a lower stage in the scale of pay upto one stage.
Learned Counsel for the appellant submits that the departmental proceedings were fundamentally flawed as the charge-sheet itself was defective. While the charge-sheet mentioned one account number with regard to the alleged withdrawal, the evidence by way of withdrawal form was furnished by the Presenting Officer with regard to another account number. The charge-sheet was never amended. The Appellant denied conceding any charges. Under clause 12 of the Award Staff: Provisions For Disciplinary Proceedings Settlement dated 10th April, 2002, signed between the Management of 52 "A" Class Banks represented by the Indian Bank''s Association and their Workmen represented by All India Bank Employees'' Association, National Confederation of Bank Employees'' Indian National Bank Employees'' Federation, signed under section 2(p) and section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957, the appellant was required to be given a second show-cause notice along with hearing regarding the nature of punishment proposed if the charge was established against him. The appellant specifically took objection in his memorandum of appeal against denial of this opportunity. Despite noticing the same, the Appellate Authority did not deal with it. The punishment is therefore vitiated on this ground also.
It was next submitted that the Appellate Authority arrived at a conclusion that appellant had committed mistake and not that his conduct with regard to the alleged withdrawal was motivated by any ill intention. The Appellate Authority was of the view that magnanimity was called for. In other words, no mens rea was attributed to the appellant. It was a mere mistake not even falling in the category of negligent behaviour much less to warrant disciplinary action and imposition of punishment. The learned Single Judge was not justified in dismissing the writ petition without examining the merits of the case/merely on the ground of alternative remedy.
Learned Counsel for the respondent-Bank submitted that the mistake committed in the charge-sheet with regard to the account number has caused no prejudice to the appellant as he did not dispute the correctness of the withdrawal form signed by an unauthorised person and the accessibility of others to his password leading to the permission for withdrawal. It was also contended that the account number was wrongly mentioned in the first paragraph of the charge-sheet but it was correctly mentioned in the third paragraph vis-�-vis the withdrawal slip produced as evidence. It was next submitted that the appellant was allowed full participation in the departmental proceedings and the appellant voluntarily chose not to lead any evidence in support of his defence.
The punishment has been imposed under clause 5(j) of the Settlement dated 10.4.2002 with regard to acts prejudicial to the interest of the Bank or gross negligence or negligence involving or likely to involve the Bank in serious loss. The Appellate Authority has also applied its mind to the memorandum of appeal. Fairness in procedure on the part of the Bank is apparent from the act of the Appellate Authority in reducing the punishment. The learned Single Judge committed no error by relegating the appellant to the remedy under the Industrial Disputes Act.
The availability of alternative remedy has never been considered as a complete bar to the maintainability of a writ petition. It is a self-imposed restriction by the writ Court. The power is therefore exercised in a manner dependent and befitting to the facts of a case. No rigid yardstick or formula is possible in this regard and the exercise of discretion will vary from one case to another depending on the facts. If the facts are glaring, require no further investigation, injustice is apparent and the law on the issues involved stands well settled, the writ Court would refrain from disposing the matter on mere technicalities multiplying litigation. The duty of the Court is to dispense justice in accordance with law by giving finality to litigation and bringing them to a close at the earliest possible.
It is not in dispute that the charge-sheet was defective mentioning the wrong account number. It never came to be amended. The withdrawal form produced was with regard to an account number other than that forming part of the charge-sheet. If the petitioner acknowledged the withdrawal form produced before him as genuine, it does not automatically mean without any express acknowledgment and concession by him that it related to the same account number which should have been but was not part of the charge-sheet. On the contrary, the appellant took a specific objection in this regard. The mere fact that he acknowledged that the withdrawal form was a genuine document does not automatically mean a concession by him that it related to the account number erroneously not mentioned in the charge-sheet. The fact that the charge-sheet mentioned two account numbers and that the latter may have been corrected cannot be invoked by the respondents to justify their own mistake by an ''if and ''but'' theory. A charge-sheet is a serious matter and is required to be framed with care and caution.
It was for the Bank to answer how the charge-sheet came to be framed in such a casual and cavalier manner in a departmental proceedings. It is not the case of the Bank that it has taken departmental action against those who were negligent in drafting such a faulty charge-sheet or did not consider to amend the charge sheet to protect the interest of the Bank.
The memorandum of settlement binds the Bank and the employee both. The Bank cannot ignore the settlement at will or comply with it at discretion. The Bank had no option in the matter except to follow the procedures. It is not the case of the Bank in the original order of punishment dated 8.3.2014 that the Appellant was given a second show cause notice for the proposed punishment under Clause 12. Additionally, the appellant took this ground specifically in his appeal. The Appellate Authority after noticing it did not give any finding with regard to the same. That alone is sufficient to vitiate the order. The fact that the Appellate Authority may have reduced the punishment is not considered relevant at this stage. The appellant was first of all denied an opportunity to convince the Disciplinary Authority not to impose a punishment. The Appellate Authority ought to have remedied this wrong by either remanding it to the Disciplinary Authority or by granting a personal hearing itself when the appellant may have had the opportunity to persuade them that it was not a case for punishment. The fact that the Appellate Authority may still have not been persuaded is not relevant at this stage. What is relevant is denial of the opportunity.
Clause 5(j) provides for gross negligence or negligence involving or likely to involve the Bank in serious loss. The use of the word "gross negligence" followed by the word "negligence" does not take away the level of negligence visualized in the case as it has to be read with the word "serious loss". The appellate Authority himself opined that it was a mistake on the part of the appellant and not a case of gross negligence, much less negligence. It is aptly said - to err is human. The Appellate Authority while opining that a sympathetic view was required to be taken, apparently was of the view that it was a human error or mistake committed by the appellant. It is not every mistake which amounts to negligence, much less gross negligence. For negligence, to constitute misconduct, entailing punishment something more than mere mistake is required. It would be a case where the mistake was committed not only voluntarily but with full consciousness. In such a situation, it tantamounts to rashness in conduct beyond prudent human behaviour where the person may be held liable due to his own conduct. Alternately, if a person aware of the error knowingly persists in acting unmindful of the consequences, issues would again be entirely different from the case a mere human error.
In A.P.S.R.T.C. v. P. Appa Rao, (2007) 15 SCC 746 it was observed as under:
"3. ...The employee cannot be punished for a sheer mistake, which is found to have been committed bona fide. Admittedly the alleged mistake of the respondent has not resulted in any loss to the Corporation. If the respondent could not be held guilty of the charge framed against him and not even guilty of having committed a culpable mistake, then any disciplinary action against him was uncalled for. At the most, a warning could have been issued to the respondent to be careful for the future. Once it is held that the respondent was not guilty of any misconduct or of negligence in performance of his duties, the departmental inquiry held against him was uncalled for and the punishment of removal could not have been imposed on him. As the finding of guilt itself has been set aside, the question of denying backwages does not arise."
Misconduct would not include human errors was considered in Inspector Inspector Prem Chand Vs. Govt. of N.C.T. of Delhi and Others, observing as follows:
"10. In State of Punjab v. Ram Singh, Ex-Constable it was stated:
"5. Misconduct has been defined in Black''s Law Dictionary, 6th Edn. At p. 999, thus:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, willful in character, improper or wrong behaviour, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness."
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
...An error of judgment, as noticed hereinbefore, per se is not a misconduct. A negligence simpliciter also would not be a misconduct."
In conclusion, we are satisfied that the order of punishment as also that of the Appellate Authority is not sustainable on the grounds of gross irregularity in the conduct of the departmental proceedings, non-compliance with the provisions of Settlement before imposition of punishment and from the recitals of the appellate order itself that it was a mistake committed not coming within clause 5(j) of the memorandum of settlement.
The order under appeal is set aside. The order of punishment passed by the Appellate Authority is also set aside.
The appellant is stated to have superannuated on 30.12.2013. He is entitled to all consequential benefits. The appeal is allowed.