By order dated 07.02.2001, the petitioner was imposed with a penalty of reduction of basic pay by one stage for one year. The appeal dated 24.03.2001, filed by the petitioner was rejected on 11.05.2001. Both the orders are under challenge in this writ petition.
2. It is the case of the petitioner that while he was working at Palayamkottai Branch of the State Bank of India, on 05.08.1998 about 4.30 p.m., he went inside the cabin of Assistant General Manager in his absence and started reading the tapals and zonal office letters kept on the table. On seeing this, the Branch Accountant Mr.S.Mohan, instructed the petitioner not to read the tapals and zonal office letters in the absence of Assistant General Manager. There was exchange of words between them. The said Accountant instructed the petitioner to leave the room.
3. Alleging that the petitioner has used unparliamentary words and attacked the said Accountant Mr.S.Mohan, the bank initiated disciplinary proceedings against the petitioner, by way of formulated charges dated 16.04.1999. Explanation was offered and not satisfied with the same, the Branch Manager, Tirunelveli was appointed as enquiry officer. In his report dated 21.10.2000, the enquiry officer held the charges as proved. Thereafter, the petitioner was instructed to submit his written submission on the findings of the enquiry. The petitioner submitted his further representation on 10.11.2000.
4. It is the grievance of the petitioner that without considering the evidence in proper perspective and the further defence put up by the petitioner on the findings recorded by the enquiry officer, the 2nd respondent by his order dated 11.01.2001, proposed to inflict a punishment of "Reduction of Basic Pay by one Stage". Personal hearing was provided on 24.01.2001. Thereafter, the 2nd respondent imposed a penalty of reduction of basic pay by one stage for one year. His appeal dated 24.03.2001, was rejected.
5. The Assistant General Manager of State Bank of India, Human Resource Department, Chennai in his counter affidavit has submitted that the petitioner is a workman and covered under the provisions of Industrial Disputes Act and in view of the efficacious and alternate remedy available under the I.D. Act, the writ petition is not maintainable.
6. He further submitted that the petitioner had committed the following acts of mis conduct.
(1) unauthorisedly read Tapals of Zonal Office and when questioned by Mr.S.Mohan, Deputy Manager, who was incharge, made disparaging and unparliamentary statements.
(2) The petitioner, who left the branch premises after the above said incident came back and picked up quarrel with the Deputy Manager in the banking hall and attacked him.
7. The respondents have further submitted that six witnesses were examined on the side of the management and 4 witnesses were examined on behalf of the defence. The petitioner was also represented by a defence representative. Both the petitioner as well as the Accountant Mr.S.Mohan were not examined as witnesses. The enquiry officer submitted his report dated 21.10.2000 holding both the charges as proved. After providing sufficient opportunity to the writ petitioner and on consideration of the material evidence on record and the defence put up by the petitioner, the findings of the enquiry officer, the disciplinary authority has imposed the punishment.
8. The respondents have further submitted that the appellate authority has given an opportunity of personal hearing and the objections on the findings recorded by the enquiry officer were also considered. It is the further case of the respondents that as the disciplinary authority had concurred with the findings, he did not reproduce the entire facts, but has considered the materials on record before passing the impugned order of penalty. Therefore the said order cannot be found fault with.
9. As regards the order passed by the appellate authority, the 2nd respondent has further submitted that all the points raised in the appeal were duly considered. It is the further contention of the respondents that the petitioner cannot compel the management to examine the said Mr.S.Mohan, when the charges could be proved otherwise. The respondents have submitted that there is no procedural violation and therefore the findings recorded by the enquiry officer and as accepted by the disciplinary and appellate authorities need not be interfered with. For the above said reasons the respondents prayed for dismissal of the writ petition.
10. Inviting the attention of this Court to the charges and the evidence let in by the management, Mrs.Elizabeth Ravi, learned counsel for the writ petitioner submitted that the allegations of behaviour in a very indecent manner inside the premises of the bank and attack on the branch Accountant on his left chest and the further allegation of beating him inside the branch premises were not substantially proved by the management witnesses and therefore the findings recorded are purely on surmises and conjectures.
11. Taking this Court through the defence evidence of D.W.3, she submitted that it was Mr.S.Mohan who attacked the writ petitioner and the said fact has not been properly considered, by the enquiry officer as well as the disciplinary authority. Learned counsel for the petitioner further submitted that the defacto complainant, Mr.S.Mohan, against whom unparliamentary words were stated to have been made and attacked, was not examined in the domestic enquiry, inspite of a request made by the petitioner to the enquiry officer and therefore the petitioner was not given adequate opportunity to cross examine him.
12. It is the further submission of the learned counsel for the writ petitioner that when the evidence let in by the witnesses is only to the extent of exchange of words and dashing against each other, the enquiry officer in the absence of any direct evidence has, come to an erroneous conclusion that the petitioner had used derogatory language and attacked the said complainant. Pointing out the analysis of the enquiry officer as regards the contention of the defence that Mr.S.Mohan's evidence was vital to prove the charges, learned counsel for the writ petitioner submitted that the findings are perverse and therefore, the resultant penalty is liable to be set aside. In these circumstances, she submitted that an adverse reference has to be drawn against the department for not letting in evidence through Mr.S.Mohan.
13. Inviting the attention of this Court to the order of the penalty dated 07.02.2001, learned counsel for the writ petitioner submitted that the disciplinary authority has failed to advert to the explanations / further representation on the findings recorded by the enquiry officer, but in a cryptic manner has rejected the same and imposed the penalty. She therefore submitted that there is a total non application of mind on the part of the disciplinary authority.
14. Taking this Court through the appellate order, she submitted that the observation of the appellate authority that the petitioner ought to have summoned Mr.S.Mohan as a defence witness in course of the enquiry proceedings and the further observation that there was no evidence on record that any such request was made and denied by the enquiry officer, as improper, for the reason that it is for the management to let in prosecution evidence through the said individual to prove the allegation of using unparliamentary words and physical attack on him. She stressed that unless the said individual was examined, in the domestic enquiry, the act of misconduct cannot be proved through other evidence. For the above said reasons, she submitted that the appellate authority has also failed to consider the impropriety in the conduct of disciplinary proceedings
15. Per contra, Mr.K.S.Sundar, learned counsel appearing for the respondents made objections to the maintainability of the writ petition on the ground that the petitioner is a workman covered under the I.D. Act and therefore, the writ petition has to be dismissed in limine. Without prejudice to the above, he submitted that the charges levelled against the petitioner comprises of the following acts of mis conduct.
(1) unauthorisedly read Tapals of Zonal Office and when questioned by Mr.S.Mohan, Deputy Manager, who was incharge, made disparaging and unparliamentary statements.
(2) The petitioner, who left the branch premises after the above said incident came back and picked up quarrel with the Deputy Manager in the banking hall and attacked him.
16. Taking this Court through the evidence let in by the management, he submitted that the charges have been proved beyond doubt and therefore the findings cannot be said as perverse. In this regard, he referred to the evidence of P.W.6 Mr.S.R.Raviselvan.
17. Learned counsel for the respondents further submitted that non-examination of Mr.S.Mohan, the Branch accountant, is not vital to the proceedings, when the charges are proved by other management witnesses. He also submitted that the petitioner who was only an Assistant in the Bank ought not to have entered the cabin of the Assistant General Manager of the Branch, in his absence and that he has no authority to go through the tapals and Zonal office letters kept on his table. The said aspect has been clearly proved in the oral enquiry by the petitioner's own admission and therefore, it is not open to the petitioner to contend that there is no substantial evidence for the act of misconduct of behaving in a indecent manner inside the premises of the bank.
18. Placing reliance on the judgment of the Supreme Court in State Bank of Bikaner & Jaipur and others Vs. Prabu Dayal Grover reported in 1995 (6) SCC 729, learned counsel for the respondents submitted that when the disciplinary authority concurs with the findings of the enquiry officer, there is no need to reproduce the entire facts with evidence and it is suffice, when the order of penalty indicates application of mind, with the findings recorded by the enquiry officer. Even assuming that the disciplinary authority has failed to record detailed reasons, still the order cannot be held to be bad, as before concurring the findings of the enquiry officer, the disciplinary authority had gone through the entire materials and the defence by the writ petitioner.
19. Learned counsel for the respondent further submitted that if the petitioner was aggrieved over the non-examination of the said Mr.S.Mohan, in the enquiry proceedings, he should have made a request to the enquiry officer, which was not done in this case. When the petitioner, had raised an objection before the appellate authority regarding the propriety of the enquiry officer, the said aspect has been considered by the appellate authority and therefore, the contention that the petitioner was not given an effective opportunity to defend the charges is liable to be rejected. He submitted that when the findings are based on evidence and in absence of any serious procedural irregularity, the punishment awarded to the writ petitioner is proportionate to the gravity of the acts of his conduct and therefore prayed to sustain the orders.
20. Heard the learned counsel for the parties and perused the materials available on record.
21. The charges levelled against the petitioner are as follows:
Charge 1:
While you were working at our Palayamkottai Branch on 05.08.1998 at about 4.30p.m. you went inside the cabin of the Assistant General Manager of the Branch in his absence and started reading the Tapals and Zonal office Letters available on the table. On seeing this Shri.S.Mohan, Deputy Manager (Accounts) at the Branch instructed you not to read the Tapals & Zonal Office letters in the absence of Assistant General Manager. You immediately argued with him as under:
"eP ahuh ,Ue;jhy; vdf;bfd;d.
ehd; mg;goj;jhd; gog;ngd;
cd;dhy; Koe;jijr; bra;Jf;f"
At this juncture, Shri.S.Mohan advised you to leave the room. Instead of obeying the reasonable orders of your superior, you, abused the Branch Accountant as under:
"eP ahUlh vd;id btspna nghfr;
brhy;y. eP Kjy;y btspna thlh"
Thus you have behaved in a very indecent manner inside the premises of the Bank. Your above action if proved, would amount to an act of "Gross Misconduct" in terms of paragraph 521(4) (c) of Sastry Award read with paragraph 18.28 of Desai Award.
Charge:2 After the above cited incident, you left the Branch premises at the request of some of the staff members working at the Branch. But after some time you came back to the Branch and picked up quarrel with Shri.S.Mohan in the Banking Hall once again. You also attacked the Branch Accountant on his left chest and started beating him inside Branch premises. As as result of your attack on Mr.Mohan, his spectacles and some other contents like coin, etc. in his pocket fell down on the ground. Thus you acted riotously behaved in an indecent manner and attacked you superior inside the Bank's premises."
22. On the basis of the findings recorded by the enquiry officer, the punishment of reduction in basic pay by one stage for one year has been imposed on 07.02.2001. The appeal preferred against the same has been rejected on 11.05.2001. The writ petition challenging the above orders is pending on the file of this court for nearly eight years.
23. Though the respondents have raised a preliminary objection to the maintainability of the writ petition, contending inter-alia that the petitioner being a workman ought to have approached the forum constituted under the I.D. Act, this Court is not inclined to accept the said submission, for the reason that driving out the petitioner to approach an alternative remedy, at this length of time would cause prejudice to the writ petitioner.
24. Besides, perusal of the evidence let in by the management goes to show that the witnesses were not able to recollect the events and the words alleged to have been exchanged between the petitioner and Mr.S.Mohan, the Branch Accountant. P.W.6 in his evidence has stated that he could not reproduce the words alleged to have been used, as the incidence had occurred 1 = years ago. Therefore, this Court deems it fit to decide the writ petition on the basis of the materials available on record. Further, violation of principles of natural justice has been raised as one of the grounds by the writ petitioner. Courts have consistently held that if there is violation of principles of natural justice as pointed out, the aggrieved person need not be non-suited on the grounds of availability of an alternative remedy. Re-appreciation of evidence is not permissible in writ proceedings, but at the same time, the evidence let in in the oral enquiry should satisfy the test of preponderancy of probability.
25. It is the contention of the petitioner that the allegations of using unparliamentary words and physical attack on Mr.S.Mohan, the Branch Accountant, were not substantiated by the management. It is also the contention of the writ petitioner that the enquiry officer as well as the disciplinary authorities have failed to consider the defence put up by the petitioner. Reverting back to the charges, the petitioner has been alleged to have entered into the cabin of the Assistant General Manager of the branch, in his absence and started reading the tapals and Zonal office letters available on the table. On seeing this, Mr.S.Mohan, Deputy Manager (Accounts) of the branch is said to have instructed him not to read the Tapals and zonal office letters, in the absence of the Assistant General Manager, for which, the petitioner seemed to have picked up a quarrel with him and alleged to have used the following unparliamentary words, "eP ahuh ,Ue;jhy; vdf;bfd;d.
ehd; mg;goj;jhd; gog;ngd;
cd;dhy; Koe;jijr; bra;Jf;f"
At this juncture, the Deputy Manager is stated to have advised the petitioner to leave the room. Instead of obeying the orders of the superior officer, it is alleged that the petitioner abused the branch accountant as, "eP ahUlh vd;id btspna nghfr;
brhy;y. eP Kjy;y btspna thlh"
The above said indecent manner inside the premises of the bank is termed as an act of mis conduct in terms of 521(4) (c) of Sastry Award read with paragraph 18.28 of Desai Award.
26. It is not in dispute that the petitioner has gone inside the cabin of the Assistant General Manager in his absence and started to read the tapals. In his defence, he has stated that the petitioner is habituated to seeing the tapals in the routine manner and that it cannot be termed as a misconduct. He has denied the use of unparliamentry words. Mr.S.Mohan, who is alleged to have been abused was not examined in the enquiry proceedings. Therefore the enquiry officer has recorded his findings on the basis of the evidence and materials on record.
27. Material on record shows that while recording the findings with regard to charge-1, the enquiry officer has recorded the evidence of P.W.6, as follows:
"First Part: eP ahuh ,Ue;jhy; vdf;bfd;d. ehd; mg;goj;jhd; gog;ngd;. cd;dhy; Koe;jijr; bra;Jf;f"
It has been deposed by Shri.Raviselvam in Recorded Proceedings Folio 74 as under:
"mg;g Kj;J Re;juk; Manager Cabin DoorI tpl;L btspna te;J "eP';f ahu; nfl;fpwJf;F" mg;gobad;W nfs;tp nfl;fpwhu;///// Mdhy; ,uz;L ngUnk heated exchangey; ,Uf;fpwhu;fs;. both Mr.Muthusundaram and Mr.Mohan mtu;fs; ,UtUnk exchanged words, mtu;fs; vd;d brhd;dh';f bjhpahJ. Vbdd;why; 1 = year Mfptpl;lJ".
It has been deposed by Shri.Ramasamy PW3 in Recorded Proceedings Folio 45 as under:
"Evening 5 kzp mstpy; AGM cabin cs;spypUe;J rj;jk; nfl;lJ/ mijj; bjhlu;e;J jpU/nkhfDk; jpU/Kj;J Re;juKk; xUtiu xUtu; ghu;j;J rg;jk; nghl;Lf; bfhz;nl btspna te;jhu;fs;/ Mr.Mohan mijg; ghu;f;f TlhJ vd;whu;/ jpU Kj;J Re;juk; mg;goj;jhd; ghu;g;ngd; vd;W rj;jkhfr; brhd;dhu;"
The above conclusively prove that
1. The Delinquent Employee did argue with Shri.Mohan, his superior,
2. That he used the words in 1 and 2 above viz. "eP';f ahu; nfl;fpwJf;F ehd; mg;goj;jhd; ghu;g;ngd;".
28. The enquiry officer has further recorded that the incident has occurred on 05.08.1998 and that the deposition of the witnesses was recorded in January / February 2000, about 1 = years later and that there is every possibility of the witness forgetting the exact words used during the heated exchange of words between the writ petitioner and Mr.S.Mohan, Deputy Manager (Accounts). The enquiry officer has also recorded that though none of the witnesses individually have verbatim reproduced the exact words purported to have been used by the delinquent employee, the enquiry officer was of the opinion that there is a preponderance of probability of employee having uttered the words as contained in the charge sheet.
29. The said finding has been recorded on the basis of evidence that there was an argument between the delinquent and the Deputy Manager and due to lapse of time, between date of occurrence and the date of deposition of witnesses, there is every possibility of the witness forgetting the exact words.
30. Scrutiny of the 1st charge shows that it was not for the unauthorised entry of the writ petitioner into the cabin of the Assistant General Manager of the branch in his absence and for reading the tapals and zonal office letters kept on the table, but, the charge levelled against the petitioner is for his indecent behaviour inside the premises of the bank and for abusing the branch accountant in unparliamentary words. That be the case, the enquiry officer, on examination of the evidence ought to have ascertained, as to whether there was usage of unparliamentary words, as alleged or indecent behaviour in the premises of the bank. Just because, there is evidence to prove that there was Exchange of words, not exactly reproduced by the witnesses, it cannot be presumed that unparliamentary words were used, or there was an indecent behaviour. The finding recorded by the enquiry officer is based on surmises on the sole ground that there was an argument inside the cabin.
31. To stigmatize that an employee has misconducted himself in an disorderly or indecently behaviour, the evidence should be more clinching and it should be noted that the person namely Mr.Mohan, against whom the indecent behaviour is alleged to have been exhibited has not been examined by the management for reasons best known to them. When the Deputy Manager was very much available in the bank, no reasons have been assigned as to why was not subjected to examination in the domestic enquiry. Therefore, this Court is unable to subscribe to the contention of the learned counsel for the respondents that the findings recorded satisfies the test of preponderance of probability.
32. The second charge levelled against the petitioner is that after the incident of an heated argument, the petitioner left the branch premises on the request of some of the staff members working in the branch and after some time, he came back to the branch, picked up a quarrel with Deputy Manager and also attacked the branch accountant on his left chest and started beating him inside the branch premises. It is further alleged that as a result of the petitioner's attack on Mr.S.Mohan, his spectacle and some other contents like coins, etc. in his packet fell down on the ground and, thus the petitioner has acted riotously in an indecent manner and attacked his superior inside the bank premises. To test the findings recorded by the enquiry officer, on the principles of preponderance of probability, in the absence of evidence of Mr.Mohan, the person who is alleged to have been physically attacked, this Court deems it fit to examine the evidence.
33. Perusal of the material on record shows that the enquiry officer has proceeded to analyse the evidence on the basis of the finding recorded by him with reference to Charge No.1. The evidence as recorded in the report is as follows:
"The Defense witness Shri.P.Arumugam, DW3 has deposed as under.
Recorded Proceedings Folio 97 -
" ///Kj;J Re;juk; vd;d rhu; ,or;rpl;L nghwP';f vd;W nfl;lhu;/ "Mdh mtu; nfhgj;JlDk; Mf;nuh!c&j;JlDk;" cd;id ,og;gjw;bfd;d. mof;ff; Tlr; bra;ntd;. eP ahulh nfl;gjw;F/"
Recorded Proceedings Folio 98 " /// jpU/nkhfd; jdJ iffis Kj;JRe;juj;jpd; be";rpd; nky; itj;jhu;. epiy jLkhwp Kj;JRe;juKk; bghd;dk;gyKk; fPnH tpGe;J tpl;lhu;fs;"
The Delinquent Employee, who has claimed in PEX1 that 'in fact it is Shri.Mohan who abused and attacked him', has only offered the following with regard to the points amplified by DW3 above.
"When questioned by me for his misbehaviour towards me, he forcibly pushed me by placing his hand on my chest." (Penultimate para of page 1 of PEX 1) It is notable here that the Delinquent Employee has not submitted that Shri.Mohan used the words deposed above by Shri.Arumugam, DW3.
It is also notable that DW3 has claimed that the Delinquent Employee was pushed by Shri.Mohan when he (the Delinquent Employee) was being held by Shri. Ponnabalam, in contradiction of the submissions made by the Delinquent Employee himself.
3. The Defence Witness Shri.B.Sudalaimani, DW4 has deposed in Recorded Proceedings Folio 107 as under:
" //// jtput[k; Mohan mtu;fSila bray;ghl;ilg; ghu;f;Fk; bghGJ jhf;fntz;Lk; vd;w nehf;fj;Jld; jhd; ntfkhf tUfpwhu; vd;W bjhpe;J bfhz;nld;".
34. Perusal of the evidence let in by the management does not in categorical terms lead to any conclusion that the said Mr.S.Mohan was physically attacked on his left chest and in the result, he fell down on the ground. On the contra, the defence witness D.W.3, E.Arumugam has deposed that the said Mr.S.Mohan has dashed against the petitioner and that it was Mr.S.Mohan, who attacked the petitioner, on his chest and in the result, both of them fell down on the ground. There is no direct evidence that Mr.S.Mohan has been attacked. Besides, the said individual has not been examined in the enquiry.
35. Perusal of the enquiry officer's report does not bring about any acceptable evidence, in so far as the charge of physical attack is concerned. No doubt, there is evidence to show that both persons had fallen on the ground. Mere falling on the ground on account of dashing against each other, cannot be a substantive evidence, to arrive at the conclusion that the petitioner has attacked the Dy. Manager. While recording the above observation, this Court is conscious that re-appreciation of evidence is not permissible in writ proceedings. But at the same time there should be atleast some evidence to prove that there was physical attack by the petitioner, which is a serious misconduct, warranting a grave penalty.
36. The enquiry officer while rejecting the evidence of D.W.3, has simply observed that it is intentionally false. No reasons have been recorded for his conclusion. No positive evidence has been let in by the management leading to the conclusion that there was a physical attack. Moreover, as stated supra, Mr.S.Mohan has not been examined to prove the said charge. Taking into consideration of the totality of the case, this Court is of the considered view that the enquiry officer has come to an erroneous conclusion, with regard to charge No.2 also.
37. The next contention to be considered is with regard to the non consideration of the defence put up by the petitioner, against the findings recorded by the enquiry officer. The disciplinary authority in his order dated 07.02.2001 has recorded as follows:
"2. We have considered all aspects of the case, the gravity of misconduct committed by you, your written submission, your past record or service. We are satisfied with the quantum of punishment proposed by us, viz., "reduction of basic pay by one stage" for one year as per provision contained in Paragraph 521 (5) (c) of Sastry Award read with Paragraph 18.28 of Desai Award is just and proper to meet the ends of justice. It has therefore been decided to confirm the above punishment and your Basic Pay is reduced by one Stage for one year and pass orders accordingly."
Reading of the above, makes it abundantly clear that the disciplinary authority has failed to advert to the further representation of the petitioner on the findings recorded by the enquiry officer and he has merely recounted the sequence of events, from the stage of initiation of disciplinary proceedings and come to the conclusion of guilt.
38. Courts have consistently held that both the disciplinary as well as the appellate authorities, the fact finding authorities, have to primarily consider as to whether the basic facts which lead to the formulation of the charges substantiated, whether the procedure has been properly followed? whether the facts established afford sufficient ground for taking action. It is apparent from the order of penalty, the disciplinary authority has failed to consider the above said aspect in the order. When the impropriety in the conduct of domestic enquiry, non examination of the said Mr.S.Mohan, to prove the charge and the failure to provide sufficient opportunity to cross examine him with reference to the allegation of personal attack, and use of unparliamentary words, and other aspects are pointed out, the appellate authority ought to have considered the same in proper perspective. When insubordination and alleged physical attack were brought to the notice of the appellate authority, he has merely observed that the delinquent employee ought to have taken steps to examine Mr.S.Mohan, as a witness during the course of enquiry proceedings, as was done in the case of one Mr.Theertharaman, D.W.1.
39. The appellate authority has further observed that there was no evidence on record that such a request was made and denied by the management. He has also observed that the petitioner ought to have insisted the presenting officer for the presence of Mr.S.Mohan as witness. It is well known in a disciplinary proceedings, it is the duty of the management to produce witnesses on their side to prove the charge. To expect that the delinquent employee should have summoned the defacto complainant to let in defence evidence to disprove the charges made against him is unknown to service jurisprudence.
40. The impropriety in the conduct of the domestic enquiry and the resultant violation of the principles of natural justice to the delinquent employee, so as to effectively defend the charges of physical attack on the defacto complainant, has been totally lost sight of by the appellate authority. Though some evidence has been let in during the domestic enquiry, this Court is of the considered view that the findings recorded do no stand the test of preponderance of probability. Therefore, the contentions of the learned counsel for the respondents that there is no procedural impropriety and violation of principles of natural justice are not countenanced.
41. There is no quarrel over the proposition that the disciplinary authority while concurring with the findings recorded by the enquiry officer, need not reproduce the entire facts with the evidence. But at the same time he must indicate the application of mind, however brief the reasons may be, and that the same should reflect in the order. As regards the factors to be considered in the appeal, useful reference can be made to the decision of this Court in N.Sivakumaran Vs. State of Tamilnadu, rep. by its Secretary to the Government, Chennai and others reported in (2009) 1 MLJ 701, wherein it is held as follows:
"In the case of an appeal against the order of imposing any penalty under Rules 8 and 9 of Rule 23 gives a mandate to the appellate authority to consider (a) Whether the facts on which the order was passed have been established (b) Whether the facts established afford sufficient ground for taking action and (c) Whether the penalty is excessive, adequate or inadequate/ and pass orders confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority which imposed the penalty, with such direction as it may be deemed fit in the circumstances of the case. Clause II of the Rule 234(1) any error or defect in the procedural violation in imposing penalty may be disregarded by the appellate authority if such authority considers for the reason to be recorded in writing that the error or defect was not material and had neither caused injustice to the person concerned or affect the decision of the case. The order of the Appellate Authority must therefore ex facie show that the matters referred to Rule 23 have been considered by the Appellate Authority Penalty suffered by a government servant affects his service promotion and monetary benefits and casts a stigma in his career. [para 32] The Appellate Authority must not only give a hearing to the government servant concerned but also pass a reasoned order dealing with the contention raised in the appeal. [para 12] In the interest of justice, the delinquent officer is entitled to know atleast the mind of the appellate or revisional authority in disposing of the appeal or revision. [para 20] If the Appellate Authority merely confirmed the order of the Disciplinary Authority stating no new points had been urged without considering the contentions raised by the appellant by application of independent mind, such order cannot be sustained. [para 15] The right of appeal is a substantive right and the appellate authority is the final fact finding authority and essentially an appeal is a continuation of the original proceedings. QA judicial review under
Article 226 of the Constitution is restricted to the decision making process and the High Court cannot substitute the findings of the disciplinary or appellate authority. [para 26] If there is a statutory provision dealing with the exercise of powers by the original or appellate authority, the same has to be examined in the manner provided in the statute and not otherwise. [para 27] The Appellate Authority in dealing with the appeal merely stated that the opinion of the Public Service Commission had been independently considered. The punishment of removal awarded by the Principal Commissioner for Revenue Administration is not excessive and therefore, the Government had decided to reject the appeal and accordingly rejected the appeal. The impugned order is unsustainable and has to be set aside and matter remitted to the Appellate Authority for consideration of the appeal on merits according to Rule 23."
42. In yet another decision, while testing the correctness of the order passed by the Appellate Authority, wherein the said authority has merely rejected the appeal, stating that no fresh points were raised, a Division Bench of this Court, in K.Elayaperumal Vs. The Deputy Inspector General of Police, Madurai Range, Madurai and another reported in 2009 Writ L.R 112 has held that, "Order of the disciplinary authority and the subsequent order passed by the appellate authority are bereft of any reasons-Order passed by appellate authority should indicate the application of mind and reasons, however brief they may be, should be incorporated in the order-Appellate authority by a very laconic order has merely recounted the allegations and observed that no new point has been brought to the notice".
43. For the above said reasons, this Court is of the view that the impugned orders are liable to be set aside and accordingly are set aside. The writ petition is allowed. No costs.
Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar ars To
1. The Deputy General Manager, (Appellate Authority), State Bank of India, Zonal Office, Madurai 625 002.
2. The Assistant General Manager, (Disciplinary Authority), State Bank of India, Region-3, Zonal Office, Madurai 625 002.
+ 1 cc to Mr.S.Subbiah, Advocate, Sr 67298 + 1 cc to Mr.K.S.Sundar, Advocate, SR 66950 W.P.No.18233 of 2001 DM (CO) RH (3.2.10)