JUDGMENT A.K. Yog and Umeshwar Pandey, JJ.
1. Shri S.K. Kakkar, advocate informs that this writ petition was decided in the past by this Court, Respondents have taken away file from him and at present he has no instruction in the matter.
2. The record shows that the matter went to the Supreme Court against the High Court judgment and order dated May 1, 1996. The Bank contested the matter in Supreme Court. It had a review petition wherein Apex Court passed order dated March 27, 2003, the relevant extract is reproduced:
"...... The High Court is requested to dispose of the matter within six months from the date of receipt of this order ........"
We do not appreciate the conduct of the Respondent Bank.
3. It was incumbent upon the Respondent Bank to have instructed Sri R.K. Kakkar, advocate or engaged another counsel (if so advised) immediately on the rendering of the aforesaid judgment and order dated March 27, 2003, if they were serious to contest the matter. The Bank has done nothing of the kind. Such practice is not uncommon, when a party is to gain by ensuring to delay the hearing of the case. It may be one of that kind of case.
4. We, therefore, decline to adjourn the case. Proceed further with the hearing of the case more so because the petitioner has retired, and no detailed arguments are required to decide the question of quantum of punishment only on the basis of facts already ascertained by the Court while adjudicating and holding petitioner guilty of the charge.
5. Having perused the record of the case we wish to extract relevant portion of the judgment of the Apex Court which is as follows:
"......... The disciplinary authority found that some charges had been proved, i. e., the appellant had not taken proper care in obtaining collateral security etc. However, there is no finding recorded by the authority that he has done this for his personal gain or with corrupt motive. It would mean that he was slack in the performance of the duty. For this, the major punishment of dismissal from service is not the appropriate remedy. On the fact and circumstances of the case, we think that the appropriate punishment would be stoppage of three increments with cumulative effect. The order of dismissal stands set aside. Instead, the authority is directed to calculate his pension and other benefits on the basis of the stoppage of three increments with cumulative effect.
The appeal is accordingly allowed. No costs.
SD/. (K. RAMASWAMY, J.), (D.P. WADHWA, J.)"
New Delhi May 5, 1997
6. Review Petition (C) No. 284/1998 filed against the aforesaid judgment was allowed by the Supreme Court vide judgment and order dated March 2, 1998 which is as follows:
"Heard both sides in the Review Petition.
There is an error apparent on the face of the impugned order which has not been taken into account the settled position of law, as propounded by this Court in State Bank of India and Anr. v. Samarendra Kishore Endow and Anr. 1994 (2) SCC 537 : 1994-I-LLJ-872. The impugned order is set aside and the Special Leave Petition shall be placed for consideration.
In view of our order in the Review Petition, the contempt Petition is dismissed."
7. After review, the Apex Court again disposed of the appeal and made following observations:
"...... In the background of what has been stated above, one thing is clear that the power of interference with the quantum of punishment is extremely limited. But when relevant factors are not taken note of, which have some bearing on the quantum of punishment, certainly the Court can direct re-consideration or in an appropriate case to shorten litigation, indicate the punishment to be awarded. It is stated that there was no occasion in the long past service indicating either irregularity or misconduct of the appellant except the charges which were the subject matter of his removal from service. The stand of the appellant as indicated above is that though small advance may have become irrecoverable, there is nothing to indicate that the appellant had misappropriated any money or had committed any act of fraud. If any loss has been caused to the Bank (which he quantifies at about Rs. 46,000/-) that can be recovered from the appellant. As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligent to warrant the extreme punishment of dismissal from service.
These aspects do not appear to have been considered by the High Court in the proper perspective. In the fitness of things, therefore, the High Court should examine these aspects afresh. The consideration shall be limited only to the quantum of punishment and not to any other question. As the appellant would have superannuated in the normal course in the year 1994, and the matter is pending for a long time, the High Court is requested to dispose of the matter within six months from the date of receipt of this order. It is made clear that no opinion has been expressed by us as to what would be the appropriate punishment. In this view, the impugned order is set aside. The writ petition is remitted to the High Court for disposal in the light of what is stated above. The appeal stands disposed of in the above terms with no order as to costs.
(Sd/- SHIVARAJ V. PATIL, J.) (Sd/- ARIJIT PASAYAT, J.)"
New Delhi March 27, 2003.
(Italicised by us to lay emphasis)
8. The observations made by the Apex Court in the aforequoted passage extracted from the judgment and order dated March 27, 2003 are to the following effect:
(1) Interference with the quantum of punishment is extremely limited. Quantum of punishment can be the subject matter of re- consideration by the Authority or the Court itself in an appropriate case to shorten litigation.
(2) Factors relevant for deciding the issue of quantum of punishment will be -(i) gravity of the offence (ii) previous antecedent of the employee in question.
Supreme Court, in the above context, took note of the following:
(i) There has been no other complaint/charge of misconduct or otherwise except the subject matter of the disciplinary enquiry in question leading to removal of his service.
(ii) The appellant's case (which has not been disbelieved) that in the charge with respect to unrecoverable small advances, there is nothing to indicate that the appellant had misappropriated himself the said money or guilty of committing any fraud.
(iii) If loss has been caused to the Bank (quantified at Rs. 46,000/-) that can be recovered, from the appellant; apparently in view of the fact that loss to the Bank was not because of any mal-intention, or negligence in duty. Supreme Court has noted- "As the reading of the various articles of charges go to show, at the most there is some procedural irregularity which cannot be termed to be negligence to warrant the extreme punishment of dismissal from service."
9. In view of the above observations of the Apex Court, the circumstances, relevant for consideration in order to settle quantum of punishment, we take into account the following:
(A) The petitioner had throughout an unblemished service record.
(B) Infraction of duty, if any, responsible for loss to the Bank was not of a grave or of serious/extreme nature which warranted dismissal from service.
(C) The appellant can be called upon to mitigate seriousness of lapse on his part and restore the interest of the Bank by depositing the amount in question, in the instant case as observed by the Apex Court, about Rs. 46,000/-. (Rupees Forty Six Thousand only).
(D) The petitioner (employee in question) has already attained the age of superannuation on August, 1994 and in that view of the matter he is not going to be reinstated in the service of the Bank so as to give rise to apprehension on the part of the employer of any nature like loss of trust and confidence or recurrence of similar lapse in future. On the other hand, the minor punishment in the nature of awarding adverse entry like, warning and/or censure entry, even if now awarded shall be of no relevance and will serve no purpose because the petitioner has already retired.
(E) The employee was subjected to disciplinary enquiry in the year 1987 and he has been compelled to enter into litigation upto the Apex Court. This petition is part of second innings. Thus, it is evident that petitioner has spent considerable amount on this litigation.
In view of the above, our conclusions are-
(1) The petitioner is entitled to be notionally reinstated forthwith since the order of dismissal has already been set aside by the Apex Court vide judgment and order dated March 27, 2003 in Civil Appeal treating the petitioner in continuous service till he attained the age of superannuation.
(2) The petitioner will be entitled to all benefits, privileges in terms of money, arrears of salary, etc., had he continued in service without taking into account the order of dismissal and later set aside by the Supreme Court along with 10% per annum simple interest from the date amounts became due till the date of actual payment.
(3) The petitioner will be entitled to all post retiral benefits treating as if there has been no break in service and he continued throughout, as indicated above. Relevant papers shall be submitted by the petitioner forthwith along with certified copy of this judgment within six weeks from today before the concerned authority for necessary compliance as above within three months of receipt of certified copy of this judgment.
(4) The petitioner shall deposit Rs. 46,000/-along with 10% simple interest per annum from the date of dismissal till the date of actual payment. The Bank shall be entitled to deduct and account for the aforesaid amount while making payment of any arrears to the petitioner from 1987 till he attained the age of superannuation, provided the loan amounts or part thereof, in respect of which, petitioner was charged, has not been refunded by the borrower or realised by the Bank so far.
10. The petition stands partly allowed to the extent and subject to the directions indicated above.
11. No order as to costs.