JUDGMENT Sudhir Narain, J.
1. This writ petition is directed against the order dated 6.4.1984 passed by Assistant General Manager (Personnel Department), United Bank of India, respondent No. 2, imposing punishment on the petitioner of withholding one increment permanently and the order passed by the Appellate Authority, respondent No. 1, dated 15.4.1993, affirming the said order in appeal and the order of respondent No. 3 dated 24/28.6.1994, partly allowing the review application filed by the petitioner.
2. The facts in brief are that the petitioner was appointed as clerk in the erstwhile Hindustan Mercantile Bank Ltd., Kanpur on 4th October, 1973. The liabilities of Hindustan Mercantile Bank Ltd., Kanpur were taken over by the United Bank of India on 22.12.1973. In the year 1975 the petitioner was posted as an officer in the Nayaganj Branch, United Bank of India, Kanpur. A First Information Report under Section 120B read with Sections 420, 467, 468 and 471 of the Indian Penal Code and Sections 5(2) and 5(1)(d) of the Prevention of Corruption Act, 1947 was lodged by the United Bank of India with the allegation that the petitioner has allowed some irregular Bill Purchase Facility to one M/s. Suraj Bhan and Company. The petitioner was placed under suspension along with other persons against whom the F.I.R. were lodged. The police submitted final report which was accepted by the Additional Chief Judicial Magistrate. The petitioner thereafter made representation to the respondent Bank for his reinstatement and payment of salary during the period of suspension.
3. The United Bank of India started disciplinary proceedings against the petitioner. An Enquiry Officer was appointed. The petitioner was given the chargesheet. He denied that he was guilty of any of the charges. The Enquiry Officer found that the petitioner was guilty of negligence in purchasing the documentary Bills submitted by M/s. Suraj Bhan and Company. The receipt submitted by the Company was fake and there was many irregularities in the Bill itself and more particularly the transport receipt was submitted by a blacklisted Transport Operator. The Bank suffered financial loss of Rs. 1300. The Disciplinary Authority, respondent No. 1, considering the report of the Enquiry Officer found that the petitioner was guilty of misconduct. He imposed the punishment of withholding one increment permanently. The petitioner filed appeal against this order before the Appellate Authority, respondent No. 1 who dismissed the appeal vide order dated 15.4.1993. The petitioner preferred a review petition before respondent No. 3. The review petition was partly allowed to the extent that the petitioner was permitted to withdraw 75 percent of the total salary as subsistence allowance during the period he remains under suspension. The petitioner has challenged this order in the present writ petition.
4. The first submission of learned Counsel for the petitioner is that the petitioner cannot be held guilty for any negligence which was not deliberate or caused any serious irreparable loss to the respondent Bank. He has placed reliance upon the decision of the Apex Court in Union of India and Ors. v. J. Ahmad, AIR 1979 S.C. 1022, wherein the facts were that the delinquent officer was posted as Deputy Commissioner and District Magistrate, Nowgong district. While he was holding the post there was large scale disturbance in Nowgong City and district. The basic charge against the officer was that the failed to take effective preventive measure against widespread disturbance breaking out in Nowgong District inspite of adequate warning being conveyed to him. In the disciplinary proceedings he was removed from service. The High Court set aside the order of removal which was upheld by the Supreme Court. The contention raised on behalf of the Union of India that the officer was guilty of misconduct was not accepted for the reason that the negligence in performance of duty per se may not amount to misconduct. It was observed as follows :-
"It is, however, difficult to believe that lack of efficiency or attainment of highest standards in discharge of duty attached to public office would ipso facto constitute misconduct. There may be negligence in performance of duty and a lapse in performance of duty or error of judgment in evaluating the developing situation may be negligence in' discharge of duty but would not constitute misconduct unless the consequences directly attributable to negligence would be such as to be irreparable or the resultant damage would be so heavy that the degree of culpability would be very high. An error can be indicative of negligence and the degree of culpability may indicate the grossness of the negligence. Carelessness can often be productive of more harm than deliberate wickedness or malevolence. Leaving aside the classic example of the sentry who sleeps at this post and allows the enemy to slip through, there are other more familiar (examples) instances of which (are) a railway cabinman signalling in a train on the same track where there is a stationary train causing headlong collusion a nurse giving intravenous injection which ought to be given intramuscular causing instanceous death; a pilot overlooking an instrument showing snag in engine and the aircraft crashing, causing heavy loss of life. Misplaced sympathy can be a great evil [see Navinchandra Shakerchand Shah v. Manager Ahmedabad Co. Op. Department Stores Ltd., (1978) 19 Guj. LR 108 at p. 120]. But in any case, failure to attain the highest standard of efficiency in performance of duty permitting an inference of negligence would not constitute misconduct nor for the purpose of Rule 3 of the Conduct Rules as would indicate lack of devotion to duty."
The Apex Court itself made it clear that the negligence may amount to misconduct and noted the various examples where the negligence may amount to misconduct namely, the sentry who sleeps at his post and allows the enemy to slip through a railway cabinman signalling in a train on the same track where there is a stationary train, causing headlong collision etc. The case where District Magistrate has not been able to control the disturbance will only indicate that he was lacking efficiency or attainment of highest standards in the discharge of the duty. It will not amount to misconduct.
5. In Shatrughan Singh, Sup-Inspector of Police v. The Circle Officer Vth, Allahabad and Ors., 1993 Labour and Industrial Cases 1325, wherein the Sub-Inspector of Police had, on completion of investigation, submitted a chargesheet against one person relying on his concession made to him and recorded by him, the disciplinary proceedings were taken against him and adverse entry was recorded on the ground that he wrongly chargesheeted the person only on the basis of concession made to him which was inadmissible in evidence. The Division Bench held that this mistake was mere error of judgment and again a single culpable act or omission on the part of an officer would not ordinarily constitute a misconduct unless it results in serious consequences. The meaning of misconduct has been defined in Stroud's Judicial Dictionary as under :-
"Misconduct means, misconduct arising from ill motive; acts of negligence errors of judgments, or innocent mistake, do not constitute such misconduct."
The fact as to whether the negligence in a given set of circumstances will amount to misconduct has to be considered taking into consideration all the attending circumstances and facts.
6. The petitioner was working in the Bank and was under a duty to grant Bill Purchase Facility. It was his duty to examine all the documents relating to the Bill Purchase Facility and also the customer with whom he is dealing and thereafter purchase the Bill. The Enquiry Officer found that M/s. Suraj Bhan and Company had submitted the fake receipts. It was also a black-listed Transport Operator. The Bank suffered also a loss of Rs. 1300/-. The quantum may not always be relevant. It is the care in performance of duty which his relevant. If the Bank Officer does not take the required care in discharge of duty, it shall amount to misconduct. The petitioner was rightly held guilty of misconduct.
7. The second submission of learned Counsel for the petitioner is that the petitioner was suspended in the year 1975. He was given chargesheet in the year 1981 but he was promoted to higher scale i.e. scale II on 22.12.1982 and on such promotion, the negligence if any of the petitioner, shall be treated to have been condoned. He has placed reliance upon the decision Lal Audhraj Singh v. State of Madhya Pradesh, AIR 1967 SC 284. In this case the person was holding the post of Range Officer. On 27th January, 1984, he was charged for negligence in the discharge of his duties as he failed to inspect a coupe between 13th May, 1952 and 22nd February, 1953 which resulted in illicit extraction and removal of material from the coupe by a Forest Contractor. The petitioner submitted his reply and thereafter nothing happened till 15th April, 1963 when he was given a fresh notice. In the intervening period he was promoted and continued to get his increments in the pay scale. He was also permitted to cross the Efficiency Bar. The Court after considering the various facts and circumstances observed as follows :-
"In our opinion, having regard to the circumstances in which the petitioner was promoted to the post of Assistant Conservator of Forest and given annual increments and crossed Efficiency Bar, it must be held that the negligence which formed the basis of notice issued to the petitioner on 27th January, 1954, was condoned by the Government. The negligence having been condoned could not clearly be used subsequently for awarding any punishment to the petitioner."
8. In Subal Chandra Saha v. Union of India, 1993 Labour and Industrial Cases 1594, the employee of Calcutta Dock Labour Board was promoted to various posts but was compulsorily retired just 17 days prior to his retirement upon attaining the age of superannuation with stipulation as to reduction in pensionary benefits. In this case the article of charges related to the incidents which had taken place during the years 1976 to 1978. The employee was given chargesheet on 23rd December, 1986 which culminated in the order of compulsory retirement on 13th September, 1988, 17 days prior to the date of his retirement on attaining the age of superannuation. On the facts of the case it was held that the employee having been promoted between the period 1976 to 1986 and was paid the increments also during this period, the negligence, if any, shall be treated to have been condoned. It was an order of compulsory retirement in which the question as to whether the person was efficient in working was a relevant factor. If an employee is given promotion and crossed efficiency bar subsequently the order of compulsory retirement on the ground of his inefficiency will not be justifiable punishment unless there is any other' exceptional reason for it. The respondent Bank had lodged F.I.R. against the petitioner. The police submitted the final report. It is only thereafter that the. departmental proceedings had taken place. The petitioner was given charge sheet in the year 1981. The Enquiry Officer had already been appointed. As the proceedings had not become final, the petitioner was given a higher scale. The respondent Bank could not withhold the grant of higher scale as no finding had been recorded against the petitioner. This grant of the higher pay scale itself does not establish that the negligence of the petitioner was condoned.
9. The third submission of learned Counsel for the petitioner-is that the punishment awarded to the petitioner is disproportionate to the charges levelled 'Against him and on the findings recorded by the Enquiry Officer.
10. It is urged that the Enquiry Officer suggested that the petitioner may be given a caution advising him to be more careful in discharging Bank's work in future. He, however, further made an observation that the matter imposing punishment rests entirely with the Disciplinary Authority and he had no jurisdiction to recommend any punishment. The Disciplinary Authority took the view that the petitioner was liable to be punished with major penalty under Regulation 4 of the United Bank of India Officer Employees' (Discipline and Appeal) Regulations. 1976, but he imposed punishment under Regulation 7/3 of the Regulations by reducing his basic pay one stage lower in the present scale of pay. The appeal, filed by the petitioner was dismissed. The review application was partly allowed in respect of the quantum of subsistence allowance. Respondent No. 3, in review petition, rejected the contention of the petitioner that the negligence was excusable' and 'pardonable' and maintained the order. The respondents, however, did not take into consideration the extenuating circumstances which were referred in the report of the Enquiry Officer against the petitioner namely, that the petitioner was the Assistant Accountant of Nayaganj Branch dealing with the advance pledge of goods, F.D.R. etc. and he worked in that particular Bill Department on the sole occasion when these documentary bills were purchased and in absence of Sri S.D. Tandon who was Assistant Accountant dealing with the Bill Department at the material time.
11. The question of imposition of penalty is to be considered by the Disciplinary Authority. In State Bank of India and Ors. v. Samrendra Kishore Endow and Anr., JT 1994 (1) SC 217, the Apex Court held that the Tribunal or the High Court has no power to substitute its own discretion for that of the Disciplinary Authority. On consideration of facts the matter was sent to the Appellate Authority. Considering the fact that the extenuating circumstances, as mentioned by the Enquiry Officer, having not been considered it will be appropriate that the matter may be remanded to the Executive Director, respondent No. 3, who has passed the final order reviewing the punishment matter.
12. The last submission of learned Counsel for the petitioner is that respondent No. 3 has enhanced the punishment. In paragraph 40 of the writ petition the petitioner has stated that the Reviewing Authority has allowed the Review Petition partly by granting 25 percent of the day and allowances for the period of suspension over and above the subsistence allowance already paid to the petitioner. In the writ petition it has nowhere been stated that this amounts to enhancement of the punishment. As the matter regarding the imposition of enhanced punishment is being directed to be considered by respondent No. 3 afresh, this matter can be examined by such Authority.
13. The writ petition is partly allowed to the extent that respondent No. 3 shall consider the quantum of punishment against the petitioner taking into consideration the extenuating circumstances if it is established by the petitioner before such Authority on production of a certified copy of this order along with the representation. In case such representation is made, as stated above, respondent No. 3 shall dispose of the same possible within three months from the date of its submission.