Kshirode Chandra Roy vs State Bank of India

Paritosh K. Mukherjee, J.—The short point calls for determination in the present writ petition is that whether after the order of dismissal of the writ Petitioner, Kshirode Chandra Roy, from service, being set aside by the judgment of this Court, the Respondent State Bank Authorities would be entitled to proceed afresh, on the basis of the liberty given by the learned Single Judge, without re-instating the writ Petitioner and without payment of back wages for the intervening period.

The facts of this case is as follows:

The writ Petitioner was working as an officer in the State Bank of India at its Commercial Division in the Calcutta Main Branch (hereinafter referred to as the Bank). The writ Petitioner took a loan of Rs. 5,000 from Raj Banijya Pratisthan, a customer of the Bank, on April 27, 1979. He took a further loan of Rs. 2,000 from the said Raj Banijya Pratisthan on May 8, 1979. Complaint was lodged by the said Raj Banijya Pratisthan to the Bank that the Petitioner had taken Rs. 7,000 from them, but did not repay the same. On February 20, 1984, charge-sheet was issued against the Petitioner, inter alia, that the Petitioner by misusing his official position in the Bank availed of loans amounting to Rs. 5,000 on April 27, 1979, and Rs. 2,000 on May 8, 1979, and further failed to repay the same.

Ultimately, on November 26, 1984, and January 10, 1985, the aforesaid amount of Rs. 2,000 and Rs. 5,000 were repaid by the writ Petitioner to the said Raj Banijya Pratisthan.

The letter of dismissal dated April 4, 1986, Was issued in terms of r. 49(g) of the State Bank of India (Supervising Staff) Services Rules, which was received by the Petitioner on April 21, 1986.

The said order of dismissal was passed on the basis of the enquiry. It may be noted here that the Enquiry Officer after completion of the enquiry and recording of evidence was physically incapacitated by a massive heart attack and could not write the Enquiry Officer''s report. The Disciplinary Authority considered the records of the enquiry, but the writ Petitioner did not participate in the said proceeding. The said order of dismissal was affirmed in the departmental appeal.

Upon filing of a writ petition by the instant writ Petitioner, Ajit Kumar Sengupta J., by his judgment dated September 16, 1987, had set aside the order of dismissal, but liberty was given to the Respondents by the learned Single Judge to proceed afresh.

It should be convenient for me to set out the relevant portions of the judgment, delivered by Ajit Kumar Sengupta J., which runs as follows:

(a) On the facts and in the circumstances of this case when the basic ingredients of the charge had no: been proved, that is to say, the loan was not obtained by undue influence or coercion and when as a matter of fact the loan was repaid before the evidence started and when the complainant had withdrawn the complaint against the Petitioner, the extreme punishment of removal from service cannot be said to be proportionate to the offence charged even assuming such offences had been proved.

(b) In these days of unemployment and particularly having regard to the fact that the Petitioner belongs to the Schedule Caste. I am of the view that Respondents imposed extreme punishment, without having any reasonable ground therefore. The Petitioner has not been charged with obtaining illegal gratification. Even there is a lapse, such lapse could have been dealt with by minor punishment.

(c) The removal of the petitioner from service is shockingly disproportionate to the offences charged and alleged to have been proved.

(d) For the reasons aforesaid, this application is allowed. The order of dismissal and the order of the Appellate Authority are set aside. The Petitioner shall be treated as on duty for the entire period. The Petitioner shall be entitled to all benefits including the service benefits and monetary benefits. The Petitioner shall be allowed to attend his duty forthwith on a signed copy of the operative part of the judgment. It is further made quite clear that this order will not prevent the Respondent to consider afresh, whether, having regard to the facts and circumstances and the observations made in the judgment, any minor penalty that might be imposed on the Petitioner. Let the arrears be paid'' within two weeks from the date of communication of this order.

A Letters Patent appeal having been preferred against the said judgment, the Division Bench, consisting of M. N. Roy and S. K. Guin JJ. by Their longish judgment dated'' September 5, 1989, observed as, follows:

We have indicated earlier the judgment and order as made by the learned trial Judge and the respective directions as he has given, with some details and so also the findings as arrived at by him on the basis of available materials before him. It is true that the initial enquiry officer could not complete the enquiry because of his unfortunate disablement and the Appellant Bank got the enquiry continued from the stage, not by another officer, but by the authorities as mentioned earlier. On scrutiny of Rule 50(2)(xx) of the said Rules, as quoted earlier, we feel that when an enquiry authority has been appointed and after hearing the matter and recordings made in the proceedings, either in whole or in part, the said officer ceases to exercise jurisdiction for any reasons whatsoever then he is required to be succeeded by another enquiry authority and such inquiring authority, so succeeding, may act on the evidence so recorded by the predecessor or partly recorded by him and partly by itself and the proviso under Rule (xx) makes it quite clear that if the succeeding enquiry authority is of the view that further examination of any of the witnesses, whose evidence has already been recorded is necessary in the interest of justice, it may recall and cause them to be examined, cross-examined and re-examined, as provided earlier.

But before parting, the Division Bench expressed ''no opinion'', about the validity, propriety or otherwise of the other findings of the learned Single Judge and observed as follows:

In view of the above, we feel that we are not required to go into or consider the validity, propriety or otherwise of the other findings as arrived at by the learned trial Judge and, as such, we dispose of the appeal by directing as hereinbefore stated and we further direct that during the, continuance of such enquiry, the order dated 12th December, 1987 as modified on 21st December, 1987, as made in this appeal, will continue.

The second enquiry was completed by the Enquiring Officer in terms of provisions of r. 50(2)(xx) of the said Rules, from the stage it was left by the previous Enquiry Officer, but the enquiry was held ex parte, as the Petitioner did not comply with the direction of the Enquiry Officer by submitting his defence, nor appeared before him.

By a final order dated December 22, 1990, the Chief General Manager, after going through all the exhibits, enquiry proceeding, all other connected papers as also the findings of the Enquiry Officer was of the opinion that the charges have been conclusively proved and held that the order of removal would meet the ends of justice.

Although the said order was passed on December 22, 1990, which has been set out at p. 189 of the writ petition, the same was to take retrospective effect from April 21, 1986.

Mr. Bimal Kumar Chatterjee, learned Advocate appearing for the Petitioner, submitted that the purported fresh enquiry proceeding (second enquiry proceeding) was held in contravention of the direction passed by the learned Single Judge, which was not disturbed even by the Court of Appeal.

Mr. Chatterjee further submitted that the second enquiry could not be initiated without first re-instating the Petitioner and paying him all back wages, in view of the clear finding of the learned Single Judge, as well as the Court of Appeal.

Mr. Chatterjee further submitted that although the Court of Appeal stayed the judgment of the learned Single Judge, but the Appeal Court in not interfering with the ordering portion and/or finding of the said judgment, it should be presumed that the Petitioner should be re-instated first and then the enquiry proceeding could be continued from the stage it was left.

It was also contended by Mr. Chatterjee that the fresh enquiry and/or de novo enquiry, as ordered by the Appellate Court was erroneous and contrary to Article 311 of the Constitution of India, inasmuch as, the charges once failed need not be further examined to set at right, the proceeding already quashed.

Regarding this Ground No. VIII, which has been taken in support of the present writ petition, this Court is of the view that the writ Petitioner is not entitled to challenge the validity of the observations of the Court of Appeal. But, at the same time, the writ Petitioner can be benefited if ipse dixit reasons are given by the Court of Appeal, namely, by one hand without expressing any opinion ''on merit'' and without setting aside the finding of the learned Single Judge, but staying operation of the judgment of the learned Judge.

Mr. Biswarup Gupta, learned Advocate appearing on behalf of the Bank, put much emphasis on the point that since the judgment of the learned Judge has been stayed by the Court of Appeal, re-instatement of the Petitioner was not necessary.

He further submitted that although the second order of dismissal dated December 22, 1990, was to taKe effect from April 21, 1986, at least it has to take effect from the date of the order and it should be deemed that it had prospective operation.

In support of this branch of submission, he has placed strong'' reliance on a decision of the Hon''ble Supreme Court in the case of R. Jeevaratnam Vs. The State of Madras, wherein Bachawat J., speaking for the Supreme-Court, observed as follows:

An order of dismissal with retrospective effect is in substance an order of dismissal as from the date of the order with the superadded direction that the order should operate retrospectively as from an anterior date. The two parts of the order are clearly severable. Assuming the second part of the order mentioning that dismissal would operate retrospectively is invalid, there is no reason why the first part of the order starting that the Appellant is dismissed, should not be given the fullest effect. The Court cannot pass a new order of dismissal but surely it can give effect to the valid part of the order.

Same principle has been followed by the Supreme Court in the case of The Gujarat Mineral Development Corporation Vs. Shri P.H. Brahmbhatt, wherein Supreme Court observed as follows:

An order purporting to terminate the services of an employee from an anterior date should be treated as one discharging the services of the employee from the date of the order with a superadded direction that the order should operate retrospectively from an anterior date. Even if the superadded part is invalid, that part being severable will not affect the validity of the first part of the order.

In reply to this, Mr. B. K. Chatterjee submitted that the second Enquiry Officer cannot sit over the judgment of the learned Single Judge of this Court, whose judgment has not been interfered by the Court of Appeal, as would be evident from the observations quoted hereinabove.

He has further submitted that the second Enquiry Officer was duty bound to recommend ''minor punishment'', as directed by the learned Single Judge, as well as, the Disciplinary Authority was also bound to pass ''minor punishment order'', in respect of the Petitioner, as admittedly at the material time of inflicting punishment, the Petitioner has repaid the whole amount, as stated hereinbefore.

Therefore, this Court has to decide whether in view of the finding of the learned Single Judge and the observations of the Court of Appeal, the Petitioner can be removed from service with ''retrospective effect''..

In my view, since the Division Bench had not expressed any opinion into the validity, propriety or otherwise of the other findings arrived at by the learned Judge and as the appeal was disposed of by directing continuance of such enquiry and order dated December 12, 1987, as modified on December 21, 1987, made in the appeal, was directed to continue, the Respondent authorities was duty bound to pass any ''minor penalty'' as undoubtedly penalty of dismissal is too harsh and disproportionate in view of the judgment of the Supreme Court in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others, wherein the Supreme Court observed as follows:

It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution.

Since, the said judgment was passed on the basis of the judgment of the House of Lords, in the case Council Service Union v. Minister for State (1984) 3 W.L.R. 1174 wherein Lord Diplock observed that anything disproportionate should be discarded, in my view, the punishment of dismissal, which was imposed for the second time, with retrospective effect, cannot be sustained in law.

Although the observations made in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others, has been clarified by the later judgment of the Supreme Court, in the case of Union of India (UOI) Vs. Parma Nanda, where the Supreme Court was of the opinion that since the power vested with the Supreme Court under Article 136 of the Constitution is not same that the with the power under Article 226 of the Constitution, in the facts of the said case. Supreme Court was of the view that High Court was not justified in reducing the sentence.

But, in my view, on the basis of the observations made by the Supreme Court, in the case of Bhagat Ram Vs. State of Himachal Pradesh and Others, this Court exercising power under Article 226 of the Constitution is not powerless to reduce the punishment and proposes to reduce the major punishment to minor punishment by reducing 1 increment for 2 years.

On the basis of the Bhagat Ram''s case, this Court had already delivered a judgment in the case of Sudhangsu Sekhar Routh v. Union of India 1988 (2) C.L.J. 439 by interfering with the punishment, as according to this Court the punishment imposed was disproportionate and this Court interfered accordingly.

This Court is further of the view that the doctrine of severability from the prospective part with the retrospective part, introduced by the Supreme Court for the first time, in the case of R. Jeevaratnam v. State of Madras (Supra) cannot be applied in the facts of the present case, as the Respondents did not act in accordance with the directions given by the learned Single Judge in his judgment, wherein the learned Single Judge specifically directed to impose ''minor punishment'' in view of the nature of the charge and the said finding has not been altered by the Court of Appeal.

In the premises, in my view, the order of dismissal dated December 22, 1990, passed by the Chief General Manager (Appointing Authority), is liable to be set aside and the Respondent Bank authorities are directed to reduce 1 increment of the Petitioner by re-instating the Petitioner, with all back wages.

Following the observations in the case of Bhagat Ram v. State of Himachal Pradesh (Supra) this Court is further of the view that since after the issuance of the charge-sheet the Petitioner has repaid the money, the charge No. 1 of the charge-sheet dated February 20, 1984, of misusing the official position does not and could not arise, and cannot be sustained.

In the facts of the present case, this Court is of the view that the Petitioner should be re-instated back to the service forthwith, preferably within a week, from communication of the operative part of this judgment and should be paid all arrear salaries for the intervening period in accordance, with this judgment, within a period of one month from communication of this judgment.

Let a writ in the nature of mandamus be issued commanding the Respondents to allow the Petitioner to resume his duties forthwith, within a week from communication of xerox copy of this judgment.

The writ petition is allowed to the extent indicated above.

There will be no order as to costs.

Let xerox copies of the operative part of this judgment be supplied to the learned Advocates for both the parties, upon observing all necessary formalities.

Prayer for stay of operation of this judgment, made on behalf of the Respondent Bank is considered, but in view of the chequered career of the case, the said prayer is rejected.