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80DRI NARAIN versus UCO BANK & ORS

High Court of Rajasthan

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80DRI NARAIN v UCO BANK & ORS - CW Case No. 3813 of 1992 [2004] RD-RJ 493 (1 November 2004)

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

ORDER

Badri Narain. VS. UCO Bank, Head Office,

Calcutta and others.

S.B. CIVIL WRIT PETITION NO. 3813/92 under Article 226 of the Constitution of India.

Date of order : 1st Nov., 2004

PRESENTS

HON'BLE MR. JUSTICE RAJESH BALIA

Mr. Sunil Benilwal for

Mr. M.S. Singhvi for the petitioner

Mr.Girish Joshi for Mr.M.R.Singhvi for the respondents.

-------

BY THE COURT:-

The petition is directed for multiple reliefs. Firstly, for quashing the order dated 29.6.1992 (Annex.12) by which the petitioner was informed the reasons for his non-promotion inspite of qualifying in the departmental examination for promotion to the post of junior officers' grade.

According to the petitioner, the posts were advertised in 1989 and the result was declared on 31.8.1991 of the examination held in 1990. In spite of finding place in the list of successful candidates, when he was not promoted, the petitioner made a representation and he was informed that:-

"Immediately after issuing the Circular

CHO/PAS/8/91 dated 31/8/91 it was detected that Shri B.N. Meena was served upon a charge sheet dated 11/10/90 for his gross misconduct and subsequently he was punished by the

Disciplinary Authority. Hence he was disqualified for promotion under clause 3.5(a) of the Promotion Policy

Settlement dated 13/4/1988."

The another contention raised in the petition is for quashing the order dated 9.5.1991

(Annex.6) warning the petitioner and order dated 3.3.1992 (Annex.8) dismissing the appeal preferred by the petitioner as barred by time and order dated 30th

May, 1992 (Annex.10) rejecting the application for review of dismissal of appeal as barred by time.

Originally, it has also been urged that the order dated 9.5.1991 warning the petitioner to remain careful be not considered as penalty and the direction contained in para No.3.5 and 3.8.4 of the Promotion

Policy Settlement for Workman Staff of 1988 of UCO bank be declared illegal.

The chain of events which appears from the material on record is that some altercations took place between the petitioner then working as clerk in the chambers of Senior Manager of UCO Bank, Jodhpur

Branch when the petitioner was required to work on

OBC/BP Counter as a permanent clerk of the counter was on leave. While allegation of the officer was that the petitioner has abused him in unparliamentary language and after great deal of repeated requests he started functioning only at 12 noon for which salary of petitioner was also deducted for non-functioning for 2 hours. This led to issuing of charge sheet dated 11th Oct., 1990 after stating the details of charges. It was pointed out that the allegations construed gross misconduct on the part of the petitioner.

This was duly replied to by the petitioner denying the charges.

On that basis, the petitioner's case was that he being a member of Schedule Caste, the Senior

Manager has tried to undermine his status by calling him by name and he too has lodged a complaint under

Prevention of Atrocities against the Scheduled Caste and Scheduled Tribes Act. It appears that subsequent thereto some good sense have prevailed as appear from the following letter which was issued by the petitioner to the management:- '' , { .} ,

- " :

( ) " , - .0 . "

- . )" - , : . . " . @ { ) } . 1, ''

The further case of the petitioner shows that the matter has been considered closed and he was not to be punished. The impugned order dated 9th May, 1991 did not amount to punishment but was only an advice and he did not move an appeal immediately but it appears that subsequent thereto, he has realised that his promotion chance is likely to be disturbed, he moved an appeal after the result of departmental examination was declared on 31st Oct., 1991 stating that he was under the impression that warning was not a punishment and he, therefore, did not submit his appeal in time. The petitioner's prayer for considering the appeal in time and deciding it on merit was not accepted and by order dated 3.3.1992, the petitioner was informed by the appellate authority about its inability to condone the delay in filing the appeal and the review petition was also rejected vide order dated 30th May, 1992 advising to treat the matter as closed. Subsequent thereto, when the petitioner was not promoted and in spite of making the representation when he was informed the reasons for his non-promotion as aforesaid, this petition has been filed.

From the material placed on record, it appears that punishment of warning has been provided both for gross misconduct as well as for misconduct which is not considered gross and the same has also been detailed in the rules governing the disciplinary proceedings which have been submitted as Annex.16 by the petitioner showing the punishment which can be imposed under the Rules. The full text has been placed on record as Annexure R/2 by the respondents.

The combined effect of reading of two

Annexures is that the recorded warning, censure or adverse remark against an incumbent is included as a penalty for gross misconduct. In other words, the recorded warning is to be considered as punishment for gross misconduct and mere warning and advising to be careful in future without entering into the records is considered to be a punishment for minor misconduct.

Viewed in the aforesaid light, if I read the order of punishment Annex.6, it does not give clue whether it is in respect of misconduct simplicitor or gross misconduct. In the annex.6 there is no finding disclosing whether the Disciplinary Authority found the petitioner guilty of gross misconduct or simple misconduct and stated that the petitioner has been warned to be careful in future which may please be noticed. It is also stated that no direction was issued that this is to be recorded in his service record. On the other hand, it does show that warning is given with a note of being careful in future on the recommendations to take lenient view of the matter.

It is apposite here to quote the punishment of warning imposable under para 19.6 for gross misconduct and punishment of warning imposable under para 19.8:-

"19.6. An employee found guilty of gross misconduct may

(a) be dismissed without notice; or

(b) be warned or censured, or have an adverse remark entered against him; or

(c) be fined; or

(d)have his increment stopped; or

(e) have his misconduct condoned and be merely discharged."

"19.8. An employee found guilty of minor misconduct may

(a) be warned or censured; or

(b) have an adverse remark entered against him; or

(c) have his increment stopped for a special not longer than six months."

Be that as it may, from the perusal of the order of punishment, I found that there is no specific finding of gross misconduct against the petitioner.

In the background of the dispute which has given rise to the charge sheet, I am further of the opinion that it has to be considered as a punishment for minor misconduct, if at all it has to be construed as a punishment. It may be noticed that mere charge of gross misconduct cannot be considered to be a finding of gross misconduct recorded by the Disciplinary

Authority on enquiry. In the present case, no enquiry was conducted by the competent authority on the basis of the alleged disrespectful temper shown by the petitioner. The purported apology which has gone into consideration has also been produced as Annexure 5 on record which falls short of admission of incident as alleged in the charge sheet. It denies the incident in the manner stated in the charge sheet but still as a subordinate, the petitioner, as a matter of goodwill gesture, has shown his willingness to offer apology to hurt feelings. It appears from the record that for the incident which has occurred, it may be on account of some mis-understanding which is also clear from the fact that Annex.5 clearly shows that the incident that the petitioner has assured that he has not committed or done anything which may cause harassment to anybody but still he tenders his apology, if anyone has been put to inconvenience due to him. In these circumstances, I am of the opinion that Annex.6 cannot be considered on its face value to be a punishment for gross misconduct as defined in the disciplinary rules.

As a punishment for gross-misconduct warning censure and adverse remark has been grouped together with condition of its entry into service record. But as a punishment for minor misconduct censure and warning has been grouped together distinct from adverse remarks and only punishment of adverse remark is qualified with entry in record.

Even if it be taken that in both cases, punishment imposed is identical, the bar against promotion, as a consequence of punishment, depends upon a finding of gross-misconduct as compared to minor misconduct. For imposition of punishment for minor misconduct, no restriction in promotion is envisaged.

In these circumstances, if without going into the merit of the imposition of punishment or treating the warning as punishment even it takes note of disqualification prescribed for considering the promotion, the specific case which may disqualify an employee from promotion is punishment for gross misconduct and not otherwise. Clause 3.5 to which reliance has been placed reads as under:-

"3.5 DISQUALIFICATIONS:

An employee shall not be eligible for promotion to the officers' cadre, if he suffers from any one or the other of the disqualifications mentioned hereunder-- a) He has been punished for any gross misconduct and a period of three years has not elapsed from the date of issue of relative charge-sheet to him; or b) He is under suspension or a charge-sheet for gross misconduct is pending against him for less than three years from the date of issue of charge- sheet. (This is to be read with NOTE below). c) The employee in the clerical cadre who opts to work only in the Accounts or the Cash Department as per the provisions set out under para 1.3 above shall be debarred from the promotion to the Officers' cadre. d) He is certified by a Medical

Officer of the Bank's choice not lower in rank than a Civil Surgeon, to be permanently disabled physically or mentally for supervisory duties and responsibilities. Subject, however, that his clause will not apply to those employees who had been appointed in the

Bank regardless of their being physically handicapped or who after their appointment have become physically handicapped but are not disabled by such handicaps from performing supervisory duties and/ or shouldering supervisory responsibilities.

NOTE: However, an employee suffering from disqualification under clause(b) above shall be allowed to appear in the written test or associate himself with the promotion process, but if he is selected for promotion, the Bank shall empanel him along with others selected but withhold his promotion until completion of the disciplinary proceedings, in case, on completion of the disciplinary proceedings he is not found guilty of gross misconduct he will be promoted with retrospective effect from the date on which the others in the same promotion panel are promoted within three months from the date of the order acquitting his from charge(s) involving gross misconduct against him. In case, however, the employee is found guilty of gross misconduct he will not be eligible for promotion and his name will be removed from the panel under intimation to him.

In respect of an empanelled employee who has not been placed under suspension unless the delay in completion of the departmental enquiry is attributable to him, promotion shall be released on completion of the period of three years from the date of issue of relative charge sheet."

Apparently, clause (b), clause (c ) and clause (d) does not tell in clear terms whether clause

(a) of para 3.5 come into operation only provided delinquent has been punished for gross misconduct then he is delinquent for a period of three years from the date of issuance of relative charges.

As I have come to the conclusion that from the order of punishment, it is not squarely discernible that the petitioner has been punished for gross-misconduct and from the background the punishment has been imposed, it appears to me to be a case of punishment for minor misconduct without going into the details which took place in the chamber of

Senior Manager and which has led to the cross complaints, there is no justification in invoking clause 3.5 for keeping the petitioner's case out from consideration for promotion to the Unit Manager cadre.

Even otherwise, this could have related back from the date of charge sheet being issued beyond the maximum period upto which promotion has been withheld in 1993.

In the aforesaid circumstances, I deem it just and proper to direct the respondents to consider the petitioner's case for promotion from the date when he had passed the departmental examination vide

Annex.11 dated 30th August, 1991 by treating the aforesaid warning, which has been given as advise, a punishment for minor misconduct only, and, if he is otherwise found suitable, to accord him promotion w.e.f. the date other persons have been accorded promotion who have been found less meritorious to him.

However, this promotion, if takes place, will not make the petitioner entitled to arrears, but he is entitled to seniority and fixation on notional basis with effect from that date. [ RAJESH BALIA ], J. babulal/


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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