THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY and THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM
WRIT APPEAL No.714 of 2014
% 27.06.2014
Between:
# The State Bank of India and others.
Versus $ T.V.S.Brahmachary.
...
APPELLANTS ...RESPONDENT < Gist:
> Head Note:
! COUNSEL FOR THE APPELLANTS :- Sri K.Srinivasa Murthy ^COUNSEL FOR RESPONDENT :-Sri V.Hari Haran ? Cases Referred:
THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY AND THE HON’BLE SRI JUSTICE CHALLA KODANDA RAM WRIT APPEAL No. 714 of 2014
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
The respondents in W.P.No.1611 of 2003 filed this writ appeal. The sole respondent herein filed the writ petition feeling aggrieved by the order of removal, dated 03.10.2001, as confirmed in the appeal. A learned Single Judge of this Court allowed the writ petition by modifying the punishment.
Briefly stated, the facts are that the respondent joined the services of appellant No.1-Bank as a Clerk-cum-Cashier on 10.03.1979. He worked as Deputy Head Assistant (Cash) at Kothapet Branch of Vijayawada between 1995 and 1998. Disciplinary proceedings were initiated against him. He was placed under suspension on 06.10.1998, followed by a show cause notice, dated 11.05.2000. The allegation against the respondent was that he resorted to acts of misconduct of temporary misappropriation by purchasing certain demand drafts, credited the amount from the account of the account- holder, but failed to send the demand drafts for clearance.
The appellants were not satisfied with the explanation offered by the respondent. Departmental enquiry was conducted and the Enquiry Officer submitted his report holding that the charges are proved. After giving another show cause notice to the respondent, the Disciplinary Authority passed an order, dated 03.10.2001 dismissing the respondent from service. The appeal preferred before appellant No.3 was rejected on 05.02.2002. Challenging the order of dismissal, the writ petition was filed. The plea of the respondent was that it was the duty of the superior Officers to send the demand drafts for clearance and that there was no lapse on his part. The appellants, on the other hand, pleaded that having credited the amount covered by the demand drafts to his own account, the respondent failed to take steps for sending the instruments, for clearance.
The learned Single Judge observed that there were some lapses on the part of the respondent. However, by taking into account, the fact that other officials were also involved and that the punishment was too harsh, he allowed the writ petition setting aside the order of removal. It was also observed that the appellant shall be treated to have been compulsorily retired from service from the date of the judgment, if he is in service, and if he had already attained the age of superannuation, it shall be considered that he had attained the age of superannuation in the usual course.
We heard Sri K.Srinivasa Murthy, learned counsel for the appellants and Sri V.Hari Haran, learned counsel for the respondent at length. The relevant Service Regulations and certain precedents are placed before us.
The order of dismissal passed against the respondent was preceded by a departmental enquiry. No defect whatever was pointed out in that enquiry. The Enquiry Officer furnished cogent reasons in support of his conclusions. As a matter of fact, most of the case is the subject matter of records and there is hardly any scope for the subjective assessment.
Once it emerged that there were lapses on the part of the respondent, the mere fact that the lapse existed on the part of the other employees also, did not make much of difference. At the most, it may be a case for compelling the Bank to initiate proceedings against the other employees, those who exhibited negligence or collusion.
The learned Single Judge appears to have found that the punishment of dismissal ordered against the respondent was highly disproportionate. To that extent, there cannot be any serious objection. However, the manner in which the punishment was substituted does not appear to be correct.
The punishment of dismissal from service was imposed under Clause 5-A of the Disciplinary Action Procedure for Workmen contained in a Memorandum of Settlement, dated 01.08.2002 (for short ‘the Settlement’). Such punishment can be imposed only when the employee is found guilty of gross misconduct. The Settlement provides for alternative punishments such as removal from service with superannuation benefits (Clause 5-B), compulsory retirement with superannuation benefits (Clause 5-C) discharge from service with superannuation benefits (Clause 5-D). Once the learned Single Judge felt it appropriate to impose the punishment of compulsory retirement, it can be only in terms of Clause 5-C of the Settlement. Secondly, the substituted punishment would take effect from the date of the order of dismissal. It cannot be postponed to a later date. If it is postponed to a subsequent date, several complications, in the context of treating the interregnum period would arise, apart from being not in conformity with the Settlement.
The question as to whether the respondent shall be entitled to be paid pension would depend upon his satisfying the requirements under the relevant provisions of law.
Therefore, the writ appeal is partly allowed modifying the order of the learned Single Judge to the effect that the punishment of compulsory retirement shall be strictly in terms of Clause 5-C of the Settlement and it shall take effect from 03.10.2001 i.e. the date of the order of dismissal. The question as to the eligibility of the respondent to be paid the pension is left open to be determined by the concerned authority, as per the relevant provisions of law. There shall be no order as to costs.
The miscellaneous petition filed in this writ appeal shall also stand disposed of.
L.NARASIMHA REDDY,J CHALLA KODANDA RAM,J Dt:27.06.2014 Note: L.R. copy to be marked. kdl