High Court of Judicature at Allahabad
Case Law Search
Komal Singh v. General Manager (P) Syndicate Bank & Others - WRIT - A No. 48010 of 2000  RD-AH 15380 (5 September 2006)
Judgment Reserved on 21.8.2006
Judgment delivered on 5.9.2006
Civil Misc. Writ Petition No. 48010 of 2000
General Manager, (P) (Appellate Authority), Syndicate Bank, & Ors.,
Hon. Dilip Gupta, J.
This writ petition has been filed for quashing the order dated 18th March, 2000 passed by the Assistant General Manager, Syndicate Bank by which the petitioner has been removed from the services of the Bank with immediate effect without disqualification for future employment. The petitioner has also sought the quashing of the order dated 15th September, 2000 by which the appeal filed by the petitioner against the aforesaid order of removal from service was dismissed by the General Manager of the Syndicate Bank. The consequential reliefs of salary, increments and other benefits to which the petitioner would have been entitled to, if he had not been removed from service have also been claimed.
The petitioner was working as a Clerk in the Meerut Cantt. Branch of the Syndicate Bank (hereinafter referred to as the ''Bank'). On 30th December, 1998 some burglars broke upon the strong room of the Bank in the night and burgled Rs. 7,30,000/- after murdering Sri Banwari Lal who was working as the Security Guard of the Bank. During the investigation of this incident by the police, it was found that the petitioner along with Sri Vijay Attender, Sri Manoj Kumar Water Boy, late Sri Banwari Lal Security Guard in the Bank and Sri Raj Kumar and another person known as ''Photographer' used to assemble after office hours as well as holidays and on Sundays in a room behind the premises of the Bank for drinking liquor and womanizing. The petitioner and others admitted participation in such activities during the course of police investigation. The petitioner was thereafter suspended by the order dated 21st December, 1998 in contemplation of the disciplinary proceedings.
A charge-sheet dated 1st February, 1999 was thereafter issued to the petitioner by the Bank mentioning therein that he had indulged in highly indecent behaviour on the premises of the Bank and such action on his part, besides being seriously subversive of discipline, also tarnished and seriously impaired the image of the Bank in the eyes of public. The petitioner was, therefore, charged for committing gross misconduct of indecent behavior on the premises of the Bank under Clause 19.5 (c) of the Bipartite Settlement (hereinafter referred to as the ''Settlement') and also for committing gross misconduct by doing acts prejudicial to the interest of the Bank under Clause 19.5 (j) of the Settlement. The petitioner submitted a reply dated 19th February, 1999 denying the charges levelled against him. The departmental enquiry was then held and the Inquiry Officer submitted a detailed report dated 9th October, 1999 which was sent to the petitioner by the communication dated 10th October, 1999 for his comments. The petitioner submitted his comments by the letter dated 30th November, 1999. The Disciplinary Authority after examining the entire records found that the inquiry had been conducted in accordance with the procedure prescribed in the Settlement and that ample opportunity had been granted to the petitioner to defend his case. The Disciplinary Authority also found that there was overwhelming evidence in support of the charges and the Inquiry Officer had relied upon the evidence adduced in the enquiry in arriving at his conclusion that the petitioner was at guilty of the charges levelled against him. The Disciplinary Authority, therefore, concurred and accepted the findings of the Inquiry Officer. It also noticed that the charges levelled against the petitioner were serious in nature and constituted gross misconduct under Clauses 19.5(c) and 19.5(j) of the Settlement. It also observed that for Financial Institutions its image was of paramount importance and anything done to impair its image had disastrous and far reaching consequences and that the conduct of employees who indulge in such activities should be viewed seriously. The Disciplinary Authority was of the opinion that the misconduct of the petitioner was of serious nature which had affected the image of the Bank adversely. Therefore, taking into consideration the gravity of the charges proved against the petitioner it passed the following order:-
"For committing Gross misconduct of indecent behaviour on the premises of the Bank vide clause no. 19.5 (c) of the Bipartite Settlement.
Sri Komal Singh be and is hereby removed from the service of the Bank with immediate effect and without disqualification for future employment.
for committing gross misconduct of doing acts prejudicial to the interest of the Bank vide clause No. 19.5 (j) of BPS.
Sri Komal Singh be and is hereby removed from the service of the Bank with immediate effect and without disqualification for future employment.
Further his period of suspension will not be treated as on duty and he is not eligible for any back wages etc. except for the subsistence allowance already paid to him."
The petitioner preferred an appeal before the General Manager before whom the petitioner was also given a personal hearing. The Appellate Authority was satisfied that there was sufficient evidence on record to sustain the charges and, therefore, concurred with the Disciplinary Authority in holding the petitioner guilty of the charges levelled against him. It also held that the punishment awarded by the Disciplinary Authority was not disproportionate to the gravity of the misconduct.
Sri J.N. Tiwari learned Senior counsel for the petitioner submitted that as the charge levelled against the petitioner was that he along with others used to assemble after office hours as well on holidays and on Sundays for drinking liquor and womanizing in a room behind the premises of the Bank, the petitioner could not be held to be guilty of the misconduct contemplated under Clause 19.5 (c) of the Settlement since it deals with drunkenness or riotous or disorderly or indecent behaviour on the premises of the Bank. He further submitted that even otherwise, the aforesaid allegations relates to his private life and cannot amount to misconduct and in support of his contention he placed reliance upon a judgment of this Court in the case of Pravina Solanki Vs. State of U.P. & Ors., reported in 2001 (2) ESC 719. In respect of the second charge, he submitted that the act of drinking and womanizing in a room behind the premises of the Bank cannot be said to be an act prejudicial to the interest of the Bank and, therefore, the charge under Clause 19.5 (j) was also not made out. He, therefore, submitted that as act did not fall within the definition of misconduct enumerated in the Settlement, the order for removal could not have been passed as was observed by the Supreme Court in Rasiklal Vaghajibhai Patel Vs. Ahmedabad Municipal Corporation & Anr., AIR 1985 SC 504.
Sri P.K. Singhal learned counsel appearing for the Bank, on the other hand submitted that the inquiry against the petitioner had been held in accordance with the procedure prescribed in the Settlement and the Disciplinary Authority after giving cogent reasons had found the petitioner guilty of both the charges and, accordingly, awarded the punishment of removal from service. The Appellate Authority had also considered the submissions and had also rejected the appeal. He, therefore, submitted that in such circumstances when the petitioner had indulged in such gross misconduct, no interference was called for and in support of his contention he placed reliance upon a Division Bench judgment of the Madras High Court in State of Tamil Nadu Vs. P.M. Belliappa reported in 1984 (3) SLR 534.
I have carefully considered the submissions advanced by the learned counsel for the parties.
Chapter 19 of the Settlement deals with disciplinary action and procedure. Clause 19.5 defines ''gross misconduct' and is as follows:-
"19.5 By the expression "gross misconduct" shall be meant any of the following acts and omissions on the part of an employee:
(a) engaging in any trade or business outside the scope of his duties except with the written permission of the bank;
(b) unauthorised disclosure of information regarding the affairs of the bank or any of its customers or any other person connected with the business of the bank which is confidential or the disclosure of which is likely to be prejudicial to the interests of the bank;
(c) drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank;
(d) willful damage or attempt to cause damage to the property of the bank or any of its customers;
(e) willful insubordination or disobedience of any lawful and reasonable order of the management or of a superior;
(f) habitual doing of any act which amounts to "minor misconduct" as defined below, "habitual" meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions encsure or warnings have been administered or an adverse remark has been entered against him:
(g) willful slowing down in performance of work;
(h) gambling or betting on the premises of the bank;
(i) speculation in stocks, shares, securities or any commodity whether on his account or that of any other persons;
(j) doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss;
(k) giving or taking a bribe or illegal gratification from a customer or an employee of the bank;
(l) abetment or instigation of any of the acts of omissions above-mentioned."(emphasis supplied)
The petitioner was charged under Clauses 19.5 (c) and (j) of the aforesaid Settlement. Sub-clause (c) of Clause 19.5 deals with drunkenness or riotous or disorderly or indecent behaviour on the premises of the Bank while sub-clause (j) deals with doing any act prejudicial to the interests of the Bank.
Both the charges require to be dealt separately but before that it is necessary to refer to the enquiry report. The inquiry report dated 9th October, 1999 shows that on behalf of the Management, the report dated 23rd January, 1999 submitted by Sri G.S. Rawat, Sub Inspector of Police to the Superintendent of Police City and a copy of the First Information Report dated 1st December, 1998 in respect of the burglary were filed and two witnesses namely Sri G.S. Rawat, Sub-Inspector of Police and Sri Keshav Rao Manager of the Bank were examined while on behalf of the petitioner the letter dated 3rd August, 1998 of the Bank was filed and Sri Rajeev Kumar Clerk in the Saket Branch of the Syndicate Bank was also examined. The Inquiry Officer elaborately dealt with the evidence of the Sub-Inspector of Police and the cross-examination. The Sub-Inspector of Police made statements regarding the reports submitted by him to the Superintendent of Police and the fact that the persons involved in the act including the petitioner admitted their involvement in womanizing and consumption liquor in the room behind the premises of the Bank. He further stated that in his report to the Superintendent of Police City, he had recommended for departmental action against these persons. The Enquiry Officer also dealt with the evidence of the Manager of the Bank and the cross-examination. The Manager of the Bank also clearly stated that the Superintendent of Police took him to the room at the backyard of the Bank premises where items were found which clearly indicated that liquor was consumed in addition to womanizing. He also stated that in his presence, the investigating officer read out the statement of Sri Vijay recorded by him wherein he stated that he had consumed liquor and indulged in womanizing on many occasions along with other staff members and the petitioner. The entire statement was read out in the presence of Sri Vijay and he admitted in the presence of the Manager that he had given the statement out of his own freewill and no pressure of any kind was exerted on him. The Manager of the Bank also stated that at Lal Kurti Police Station a woman sitting there in the presence of the Additional Superintendent of Police and Station House Officer identified Sri Manoj and others and Sri Manoj also confirmed that she was brought to that room on many occasions. After a careful analysis of the evidence on record, the Inquiry Officer observed that there was sufficient evidence to conclude that the petitioner was involved in the activity of liquor consumption and womanizing in the room behind the premises of the Bank. In respect of the first charge, the Inquiry Officer was of the opinion that as the room was at the backyard of the premises of the Bank it cannot be said that it was not within the premises of the Bank and in respect of charge no. 2, the Inquiry Officer was of the opinion that the act was prejudicial to the interest of the Bank.
The contention of Sri J.N. Tiwari, learned Senior counsel for the petitioner in respect of the first charge is that there cannot be any gross misconduct under Clause 19.5 (c) of the Settlement since the petitioner had not indulged in any act on the premises of the Bank as even the charge-sheet mentions that the petitioner had indulged in drinking liquor and womanizing in a room behind the Bank premises. Sri Tiwari further submitted that there was no evidence on the record to indicate that the room behind the premises of the Bank had also been let out to the Bank.
Sri P.K. Singhal learned counsel appearing for the respondent Bank, however, submitted that since the room was situated at the backyard of the premises of the Bank such a strict interpretation of the provisions of Clause 19.5 (c) of the Settlement should not be given and it must be taken that the petitioner had been indulging in activities on the premises of the Bank.
It is true that a strict interpretation of ''gross misconduct' as defined in Clause 19.5 (c) of the Settlement would require that the employee should be involved in drunkenness or riotous or disorderly or indecent behaviour on the premises of the Bank and, therefore, in the present case when the portion behind the premises of the Bank was not actually let out to the Bank the act would not amount to ''gross misconduct' but it is not disputed by the learned Senior counsel for the petitioner that the room was situated just behind the premises of the Bank in the backyard. It has, therefore, become necessary to consider whether even in such circumstances, when the act was committed in the immediate or close proximity of the premises of the Bank, it may still fall within the definition of ''gross misconduct' under Clause 19.5 (c) of the Settlement. The Supreme Court has repeatedly observed that the range of activities which may amount to act of ''gross misconduct' are so varied that it may not possible for the employer to exhaustively enumerate them. An employee cannot, therefore, be permitted to wriggle out of the clutches of the definition of ''gross misconduct' by shifting the activities to the immediate neighbourhood of the premises and then claim that in view of the definition of ''gross misconduct' he cannot be punished.
This aspect was highlighted by the decision of the Supreme Court in Central India Coalfields Ltd., Calcutta Vs. Ram Bilas Shobnath, AIR 1961 SC 1189, as the question involved therein was whether the charge of misconduct could be made out even if the misbehaviour mentioned in the standing order had taken place outside the working hours as well as outside the place of employment. The workman was employed to perform his duties as an underground Munshi in the colliery. Complaints had been received that the workman went to the quarters of his co-workmen drunk and in a state of heavy intoxication and then abused his co-workmen by using dirty and filthy language. He also entered the room and threw the articles hither and thither. The Tribunal took the view that Standing Order No. 29(5) which deals with drunkenness, fighting, riotous or disorderly or indecent behaviour strictly did not apply because, though the workman was guilty of the misbehaviour mentioned in the said Standing Order, his misconduct had taken place outside the working hours as well as outside the pit where he had to discharge his duties. Repelling this view, the Supreme Court observed:-
"It is common ground that quarters are provided by the appellant to its employees and they are situated on the coal bearing-area at the distance of about 200 feet from the pit-mouth according to the appellant and at a distance of 2000 feet according to the respondent. Standing Order No. 29(5) provides that drunkenness, fighting, riotous or disorderly or indecent behaviour constitutes misconduct which entails dismissal. Normally this Standing Order would apply to the behaviour on the premises where the workmen discharge their duties and during the hours of their work. It may also be conceded that if a quarrel takes place between workmen outside working hours and away from the coal premises that would be a private matter which may not fall within Standing Order No. 29(5); but in the special circumstances of this case it is clear that the incident took place in the quarters at a short distance from the coal bearing area and the conduct of the respondent which is proved clearly amounts both to drunkenness as well as riotous, disorderly and indecent behaviour. In fact, as the enquiry officer in substance has found, unless the appellant took some action against the respondent, breach of peace was threatened and that is not a matter which the appellant could consider with complacence."(emphasis supplied)
Applying the same principle to the facts and circumstances of the present case, it has to be held that the petitioner was guilty of ''gross misconduct' as defined in Clause 19.5 (c) of the Settlement as the act of consumption of liquor and womanizing had taken place in a room just behind the premises of the Bank. This is precisely what the Enquiry Officer in his report dated 9th October, 1999 had observed as he clearly mentioned that since the room was at the backyard of the premises, it cannot be said that it was not within the premises of the Bank. There is, therefore, no infirmity in the view taken by the Disciplinary Authority. The contention advanced by the learned Senior counsel for the petitioner cannot be accepted.
This charge is in respect of the ''gross misconduct' enumerated under Clause 19.5(j) of the Settlement dealing with an act prejudicial to the interest of the Bank but before proceeding to discuss it, it is necessary to refer to certain decisions of the Supreme Court dealing with the high standards of honesty, integrity and conduct exerted from the employees of a Bank.
In Disciplinary Authority-cum-Regional Manager & Ors. Vs. Nikunja Bihari Patnaik, (1996) 9 SCC 69 the Supreme Court observed :-
"................If each officer/employee is allowed to act beyond his authority, the discipline of the organisation/bank will disappear; the functioning of the bank would become chaotic and unmanageable. Each officer of the bank cannot be allowed to carve out his own little empire wherein he dispenses favours and largesse. No organisation, more particularly, a bank can function properly and effectively if its officers and employees do not observe the prescribed norms and discipline. Such indiscipline cannot be condoned on the specious ground that it was not actuated by ulterior motives or by extraneous considerations. ............As mentioned hereinbefore, the very discipline of an organisation and more particularly, a bank is dependent upon each of its employees and officers acting and operating within their allotted sphere." (emphasis supplied)
In Tara Chand Vyas Vs. Chairman & Disciplinary Authority and others (1997) 4 SCC 565 the Supreme Court observed:-
"The nationalised banks, therefore, are the prime sources and pillars for establishment of socio-economic justice for the weaker sections. The employees and officers working in the banks are not merely the trustees of the society, but also bear responsibility and owe duty to the society for effectuation of socio-economic empowerment. Their acts and conduct should be in discharge of that constitutional objective and if they derelict in the performance of their duty, it impinges upon the enforcement of the constitutional philosophy, objective and the goals under the rule of law. Corruption has taken deep roots among the sections of the society and the employees holding public office or responsibility equally became amenable to corrupt conduct in the discharge of their official duty for illegal gratification. The banking business and services are also vitally affected by catastrophic corruption. Disciplinary measures should, therefore, aim to eradicate the corrupt proclivity of conduct on the part of the employees/officers in the public offices including those in banks. It would, therefore, be necessary to consider, from this perspective, the need for disciplinary action to eradicate corruption to properly channelise the use of the public funds, the live wire for effectuation of socio-economic justice in order to achieve the constitutional goals set down in the Preamble and to see that the corrupt conduct of the officers does not degenerate the efficiency of service leading to denationalisation of the banking system. What is more, the nationalisation of the banking service was done in the public interest. Every employee/officer in the bank should strive to see that banking operations or services are rendered in the best interest of the system and the society so as to effectuate the object of nationalisation. Any conduct that damages, destroys, defeats or tends to defeat the said purposes resultantly defeats or tends to defeat the constitutional objectives which can be meted out with disciplinary action in accordance with rules lest rectitude in public service is lost and service becomes a means and source of unjust enrichment at the cost of the society." (emphasis supplied)
In Ganesh Santa Ram Sirur Vs. State Bank of India and another (2005) 1 SCC 13 the Supreme Court observed:-
"......... Mr. Salve submitted that the appellant, the Branch Manager of a Bank is required to exercise higher standards of honesty and integrity when he deals with the money of the depositors and the customers and, therefore, he is required to take all possible steps to protect the interest of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. According to Mr. Salve, good conduct and discipline are inseparable for the functioning of every officer, manager or employee of the bank, who deals with public money and there is no defence available to say that no loss or profit resulted in the case, when the manager acted without authority and contrary to the Rules and the Scheme which is formulated to help the educated unemployed youth. Mr. Salve's above submission is well-merited acceptance and we see much force in the said submission.
The bank manager/officer and employees of any bank, nationalsed/or non-nationalised, are expected to act and discharge their functions in accordance with the rules and regulations of the bank. Acting beyond one's authority is by itself a breach of discipline and trust and misconduct." (emphasis supplied)
In State Bank of India & Anr., Vs. Bela Bagchi & Ors., (2005) 7 SCC 435 the Supreme Court observed:-
"A bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/employee of the bank." (emphasis supplied)
The aforesaid decisions of the Supreme Court clearly emphasise that for a Bank to function properly and effectively, it is imperative for its officers and employees to observe the prescribed norms and discipline and any conduct that damages, destroys, defeats or tends to defeat the said purposes should be meted out with disciplinary action. Good conduct and discipline are inseparable for the functioning of every officer, Manager or employee of the Bank and every officer or employee of the Bank must take all possible steps to protect the interest of the Bank and do nothing which is unbecoming of a Bank officer/employee.
It is in the light of the aforesaid observations made by the Supreme Court for the maintenance of high standards by the employees of the Bank that it has to be examined whether the act of the petitioner in assembling in the room behind the Bank premises along with some other persons for drinking and womanizing can be said to be an act that is prejudicial to the interest of the Bank and, therefore, within the definition of ''gross misconduct' under Clause 19.5 (j) of the Settlement. It must also be remembered that ''Womanizing' has been defined to mean ''pursue or associate illicitly with woman' while ''prejudicial' has been defined to mean ''tending to injure or impair, damaging detrimental'.
The meaning and scope of misconduct was examined by the Supreme Court in M.M. Malhotra Vs. Union of India & Ors., (2005) 8 SCC 351. The charges levelled in the show-cause notice issued to the appellant were in respect of having illicit relations with Miss Anna Suja John; ill-treatment meted out and criminal force used by the appellant on his wife and having contracted ''plural marriage' with Miss Anna Suja John. The Inquiry Officer on a consideration of the materials observed that there was irrefutable evidence of plural marriage and disgraceful conduct of not only sleeping with Miss Anna Suja John but also using criminal force against his wife. This brought about an order of compulsory retirement which was challenged in the High Court. The High Court dismissed the writ petition and held that the conduct of the appellant was unbecoming of a member of the disciplined force and held that he was guilty of an act which was prejudicial to the good order and discipline. The Supreme Court observed that the subsequent marriage with Miss Anna Suja John was not a case of plural marriage but then it also examined the other contention regarding cruelty and torture having been meted out to his wife since the High Court had highlighted how such acts were prejudicial to good order and discipline. In this context, the Supreme Court observed as follows:-
"The range of activities which may amount to acts which are inconsistent with the interest of public service and not befitting the status, position and dignity of a public servant are so varied that it would be impossible for the employer to exhaustively enumerate such acts and treat the categories of misconduct as closed. It has, therefore, to be noted that the word "misconduct" is not capable of precise definition. But at the same time though incapable of precise definition, the word "misconduct" on reflection receives its connotation from the context, the delinquency in performance and its effect on the discipline and the nature of the duty. The act complained of must bear a forbidden quality or character and its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the statute and the public purpose it seeks to serve."
The Supreme Court, therefore, held that though the charge of plural marriage could not be established, yet taking into account the other allegations, it was an act prejudicial to good order and discipline.
In State Bank of India Vs. K.C. Tharakan & Ors. (2005) 8 SCC 428 the Supreme Court examined as to what conduct would affect the interest of the Bank. In the said case a Clerk-cum-typist of the Bank was appearing at an examination conducted by the Indian Institute of Bankers. One of the Senior Officers of the Bank was the Invigilator during the examination. The Clerk-cum-typist wrote three letters to the Institute of Bankers making allegations against the said Invigilator. The Bank issued a charge-sheet dated 8th April, 1969 to him on the ground that he had misconducted himself by making serious allegations against a senior officer and, therefore, indulged in a conduct which was prejudicial to the interest of the Bank. He was discharged from the services of the Bank. The Clerk raised a preliminary objection that the framed charge did not constitute misconduct. This was rejected by the Tribunal against which a writ petition was filed in the High Court, which was allowed. The learned Judge held that no charge had been made out as under the Standing Orders disciplinary action could only be taken provided the act was prejudicial to the interest of the Bank and since the letters written by the Clerk were in respect of the conduct as an Invigilator and not as an Officer of the Bank, no charge could be made out. The appeal filed before the Division Bench of the High Court was also dismissed. The Supreme Court, however, allowed the Appeal and observed:-
"An allegation of corruption against a senior officer would affect the interest of the Bank. In our view, it makes no difference whether the allegation of corruption is in respect of the work of the Bank or in respect of the conduct/work of the officer outside the Bank. The reputation of the Bank gets affected if an allegation is made that its officer(s) are corrupt. Thus, an allegation of corruption against a senior officer is one which would affect the interests of the Bank. The learned Single Judge was thus absolutely wrong in holding that no charge had been made out."(emphasis supplied)
It would also be useful to refer to the decision of the Supreme Court in S. Govinda Menon Vs. Union of India AIR 1967 SC 1274 wherein it was observed:-
"Rule 4 (1) does not impose any limitation or qualification as to the nature of the act or omission in respect of which disciplinary proceedings can be instituted...............................It does not say that the act or omission must have been committed in the discharge of his duty or in the course of his employment as a Government servant. It is, therefore, open to the Government to take disciplinary proceedings against the appellant in respect of his acts or omissions which cast a reflection upon his reputation for integrity or good faith or devotion to duty as a member of the Service................. In our opinion, it is not necessary that a member of the Service should have committed the alleged act or omission in the course of discharge of his duties as a servant of the Government in order that it may form the subject-matter of disciplinary proceedings. In other words, if the act or omission is such as to reflect on the reputation of the officer for his integrity or good faith or devotion to duty, there is no reason why disciplinary proceedings should not be taken against him for that act or omission even though the act or omission relates to an activity in regard to which there is no actual master and servant relationship. To put it differently, the test is not whether the act or omission was committed by the appellant in the course of the discharge of his duties as servant of the Government. The test is whether the act or omission has some reasonable connection with the nature and condition of his service or whether the act or omission has cast any reflection upon the reputation of the member of the Service for integrity or devotion to duty as a public servant."(emphasis supplied)
In this context reference may also be made to the following observations of Lopes, L.J. in Pearce v. Foster, (1886) 17 QBD 536 at p. 542.
"If a servant conducts himself in a way inconsistent with the faithful discharge of his duty in the service, it is misconduct which justifies immediate dismissal. That misconduct, according to my view, need not be misconduct in the carrying on of the service or the business. It is sufficient if it is conduct which is prejudicial or is likely to be prejudicial to the interests or to the reputation of the master, and the master will be justified, not only if he discovers it at the time, but also if he discovers it afterwards, in dismissing that servant."(emphasis supplied)
In P.M. Belliappa (supra) the Division Bench of the Madras High Court examined what moral turpitude is and in this context observed:-
"There is a reference to the petitioner's conduct amounting to moral turpitude. We have to point out that the expressions "moral turpitude or delinquency" are not to receive a narrow construction and it would include conduct contrary to and opposed to good morals and which is unethical. The said expressions have not found a categoric definition anywhere, but we can safely take it that it would include anything done contrary to justice, honesty, modesty or good morals and contrary to what a man owes to a fellow man or to society in general. It would imply depravity and wickedness of character or disposition of the person charged with the particular conduct. It may also include an act which shocks the moral conscience of society in general. It is by now well settled that the misconduct or unbecoming conduct or conduct of moral turpitude need not necessarily relate to an activity in the course of the employment and it could relate to an activity outside the scope of the employment. Considering the high nature of the office, the incumbent is placed in and the reputation of integrity that is required for the discharge of the duties annexed to that office, if the act of the Government servant brings down the reputation of not only himself but also the office which he occupies, the employer, the Government, can definitely set the rule in motion for disciplinary action. If the Government servant is found indulging in a conduct which is unworthy or unbecoming of an official of the State, definitely, we cannot put a fetter on the discretion of the State with regard to the action to be taken by it in this context. The State, keeping its administration well pruned, cannot be told by the Court as to what type of officers it should entertain and what type of conduct it should tolerate and ignore. The discretion is that of the State in these matters and unless the discretion exercise and the decision taken could come within the mischief of any of the well settled principles, this Court should not superimpose its ideas and scuttle down the discretion to an illusion."(emphasis supplied)
The aforesaid decisions clearly emphasise that for an act to be prejudicial to the interest of the Organisation it is not necessary that it should be only in respect of his duties in the Organisation but could be for acts committed somewhere else, if it reflects on the reputation of the officer or his integrity, good faith or devotion to duty and it would be sufficient if the misconduct is prejudicial or is likely to be prejudicial to the interest or reputation of the employer.
In the present case, the petitioner along with others use to assemble after office hours in the room behind the premises of the Bank for consumption of liquor and for womanizing. The petitioner was charged under Clause 19.5 (j) of the Settlement that this highly indecent behaviour, apart from being subversive of discipline had also tarnished and seriously impaired the image of the Bank in the eyes of public and, therefore, was prejudicial to the interest of the Bank. While analyzing Charge No. 1, I have observed that the activities carried out by the petitioner in the room behind the premises of the Bank should be taken to have been carried out on the premises of the Bank but even if it is assumed that the activities were not carried out on the premises of the Bank then too in view of the aforesaid decisions of the Supreme Court, it is not necessary to establish the charge under Clause 19.5(j) of the Settlement that the activities should be carried out on the premises of the Bank and all that has to be examined is whether such activities prejudicially affect the interest of the Bank.
The Disciplinary Authority noticed that for Financial Institutions its image is of paramount importance and anything done to impair its image has disastrous and far reaching consequences and, therefore, the conduct of an employee who indulges in such activities should be viewed very seriously as it affects the image of the Bank adversely. The Appellate Authority was also of the view that the activities of the petitioner in a room at the backyard of the premises of the Bank had tarnished the image of the Bank before the public. Clause 19.5 (j) of the Settlement does not require that such activities should be carried out on the premises of the Bank. It merely provides that any act prejudicial to the interest of the Bank would amount to gross misconduct for which action can be taken. The Supreme Court in the case of M.M. Malhotra (supra) observed that the act of an Air Force Officer in using criminal force against his wife and sleeping with another lady in the presence of his wife amounted to an act which was prejudicial to the good order and discipline. In K.C. Tharakan & Ors (supra) the Supreme Court observed that an allegations of corruption against a senior officer would also affect the interest of the Bank even though it may not be in respect of the conduct/work of that officer in respect of the work of the Bank. In S. Govinda Menon (supra) the Supreme Court observed that action could be taken for an act even if it was committed somewhere else if it reflects on the reputation of the officer or his integrity, good faith or devotion to duty.
The petitioner had indulged in drinking and womanizing in a room behind the premises of the Bank. The activities carried out by the petitioner clearly impair the image of the Bank and have far reaching consequences. It is for this reason that it has been repeatedly observed by the Supreme Court that every employee of the Bank would strive to see that the banking operations or services are rendered in the best interest of the system and any conduct that damages, destroys, defeats or tends to defeat the said purposes should be meted out with disciplinary action. The act committed by the petitioner in associating illicitly with woman is clearly forbidden and would tend to lower the image of the Bank in the eyes of the public. The reputation of the Bank would obviously get affected. Thus, in view of the aforesaid decisions of the Supreme Court, it is evident that the act committed by the petitioner was an act prejudicial to the interest of the Bank. It cannot, therefore, be said that Clause 19.5 (j) was not attracted.
The decision in the case of Pravina Solanki (supra) relied upon by the learned Senior Counsel for the petitioner is not applicable because in the present case, the Disciplinary Authority and the Appellate Authority had clearly come to the conclusion that the conduct of the petitioner had adversely affected the image of the Bank before the public.
Sri J.N. Tiwari learned Senior counsel for the petitioner then submitted that the charge of consumption of liquor and womanizing in the room behind the Bank premises cannot be said to be made out as there is no clinching evidence in this regard. This contention of the learned Senior counsel cannot also be accepted. The Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Shri Udaysingh s/o Ganpatrao Naik Nimbalkar & Ors reported in JT 1997 (5) SC 298 held that disciplinary proceedings are not a criminal trial and, therefore, the scope of enquiry is entirely different from that of a criminal trial in which the charge is required to be proved beyond doubt. In the case of disciplinary enquiry, the technical rules of evidence have no application and preponderance of probabilities and some material on record would be necessary to reach a conclusion whether or not the delinquent has committed misconduct. The test laid down is to see whether there is evidence on record to reach the conclusion that the delinquent has committed misconduct and whether as a reasonable man, in the circumstances, would be justified in reaching that conclusion. The same view was reiterated by the Supreme Court in the case of Depot Manager, A.P. State Road Transhport Corporation and Mohd. Yousuf Miya reported in 1997 (77) F.L.R. and in the case of Lalit Popli Vs. Canera Bank and others reported in (2003) 3 SCC 583. It was held that strict standard of proof or applicability of the Evidence Act stands excluded and the standard of proof in the departmental proceedings is not the same as of the criminal trial. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him.
The observations made by Supreme Court in the case of Shri Udaysingh (supra) regarding re-appreciation of evidence by the High Court must also not be forgotten. It was observed as follows:-
"..... In judicial review, it is settled law that the Court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is the consistent view of this Court vide B.C. Chaturvedi vs. Union of India (1995) 6 SCC 749, State of Tamil Nadu vs. T.V. Venugopalan JT 1994 (5) SC 337=(1994) 6 SCC 302 (SCC para 7), Union of India vs. Upendra Singh JT 1994 (1) SC 658 = (1994) 3 SCC 357 (SCC para 6), Government of Tamil Nadu vs. A. Rajapandian JT 1994 (7) SC 492 = (1995) 1 SCC 216 (SCC para 4) and B.C. Chaturvedi vs. Union of India (at pp. 759-60)"
The Supreme Court in Rae Bareli Kshetriya Gramin Bank Vs. Bhola Nath Singh & Ors, (1997) 3 SCC 657 held as follows:-
" Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained."
In R.S. Saini Vs. State of Punjab (1999) 8 SCC 90, the Supreme Court observed as follows:-
"Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.
A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring authority has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions, in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise, the High Court has looked into the material based on which the enquiry officer has come to the conclusion, within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."
In the case of Lalit Popli Vs. Canara Bank & Ors., (2003) 3 SCC 583 the Supreme Court observed as follows:-
"While exercising jurisdiction under Article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an appellate authority."
In the present case, the Inquiry Officer, on the basis of evidence on the record both documentary and oral has recorded a categorical finding that the petitioner had been consuming liquor and indulging in womanizing in a room behind the Bank premises. The Disciplinary Authority and the Appellate Authority have also examined the matter in detail and have concurred with the findings recorded by the Inquiry Officer. Learned Senior counsel for the petitioner has not been able to substantiate that the aforesaid finding is either arbitrary or perverse. It is also not possible for this Court to re-appreciate the evidence and record a different finding.
Sri P.K. Singhal learned counsel appearing for the respondent Bank raised an alternative argument that even if the Charge No. 1 is held to be not made out in the sense that the activities were not carried out on the premises of the Bank then too the order of removal of service can be sustained in view of the findings in respect of Charge No. 2. There is merit in this contention. In the first instance, it must be noted that the Disciplinary Authority has awarded separate punishment in respect of charge No. 1 and charge No. 2. Therefore, even if charge No. 1 is not made out then too the punishment of removal from service can be sustained under Charge No. 2. This apart, this question was also considered by the Supreme Court in P.D. Agrawal Vs. State Bank of India & Ors., 2006 AIR SCW 2504. The Supreme Court after taking into consideration its earlier decision in State of Orissa & Ors., Vs. Bidyabhushan Mohapatra AIR 1963 SC 779 held that even if the charges which have been proved justify the imposition of punishment of dismissal from service, the Court can sustain the order of punishment. In the present case, Charge No. 2 against the petitioner is very serious and, therefore, the order removing the petitioner from service cannot be set aside even if it is assumed that Charge No. 1 is not made out.
Thus, as none of the contentions advanced on behalf of the petitioner have any force, the writ petition is liable to be dismissed and is, accordingly, dismissed.
Double Click on any word for its dictionary meaning or to get reference material on it.