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Natavarbhai S. Makwana Vs. Union Bank of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Case NumberSpecial Civil Application No. 5228/83
Judge
Reported in(1985)IILLJ296Guj
AppellantNatavarbhai S. Makwana
RespondentUnion Bank of India and ors.
Cases ReferredMahendra Singh v. Hindustan Motors
Excerpt:
.....for which there is no specific charge - punishment imposed upon petitioner cannot be sustained as chargesheet given to petitioner not in accordance with provisions of settlement - admission relied upon does not form part of charge-sheet - petitioner held guilty and punished for which there was no charge and no evidence - conviction and punishment in such circumstances cannot be sustained. - - the said provision in so far as it is relevant reads as follows :employee against whom disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry. as per the provisions of para 19.12 of the settlement, the charge-sheet should specify clearly the circumstances appearing..........against shri j. k. shah, acting-in-charge of the staff training centre, ahmedabad, and in turn shri arya threatened shri j. k. shah over telephone to withdraw the relieving memorandum of shri makwana (the petitioner) otherwise he would get shri shah transferred out from ahmedabad and he would also cut off his hands. the petitioner was required to give written explanation within a period of seven days from the date of receipt of the memo. the petitioner submitted written explanation. he denied the allegations made in the memo. he has further explained that there was no intention to cut the hands, but the phrase was, used to indicate the harassment caused by the issuance of such a written memo. at the end of the explanation, the petitioner sincerely expressed his regret for the fact.....
Judgment:

1. In a departmental inquiry held against a bank employee, he was chargesheeted for certain misconduct. Sufficient details regarding the misconduct alleged were not given in the chargesheet. He confessed and admitted something which did not form part of the charge. Without there being any evidence or proof of the misconduct alleged, he has been convicted and punished solely on the basis of his confession. Can this order imposing punishment be sustained This, in short, is the question which awaits answer.

2. The petitioner is an employee of the respondent which is a nationalised bank. He is serving as a Clerk-cum-Cashier at Amreli Branch of the Bank. He was selected as a candidate for induction course for a period commencing from 18th June, 1982 to 6th July, 1982. When the induction course was going on, the petitioner was found to be irregular in his attendance and, therefore, he was relieved from the training course before the expiry of the training period. He was served with a memo dated 14th July, 1982, wherein it was inter alia stated that after the petitioner was relieved from training centre, he (petitioner) approached Shri R. J. Arya of Bank of Baroda, Dhanlaxmi Branch, Ahmedabad, and made certain unwarranted complaints against Shri J. K. Shah, acting-in-charge of the staff Training Centre, Ahmedabad, and in turn Shri Arya threatened Shri J. K. Shah over telephone to withdraw the relieving memorandum of Shri Makwana (the petitioner) otherwise he would get Shri Shah transferred out from Ahmedabad and he would also cut off his hands. The petitioner was required to give written explanation within a period of seven days from the date of receipt of the memo. The petitioner submitted written explanation. He denied the allegations made in the memo. He has further explained that there was no intention to cut the hands, but the phrase was, used to indicate the harassment caused by the issuance of such a written memo. At the end of the explanation, the petitioner sincerely expressed his regret for the fact that the complaint was made before the union leader. The explanation was not accepted by the Bank authorities. The authority concerned informed him that it was decided to hold departmental enquiry against him. The Petitioner was served with a chargesheet and pursuant thereto the enquiry was held. The petitioner pleaded guilty to the charge and thereupon it was held that the misconduct alleged was proved.

3. The enquiry officer proposed punishment as follows :

'Misconduct proved Proposed punishment

1. Doing acts prejudicial to Stoppage of one increment

he interest of the Bank. with cumulative effect.

2. Doing acts subversive of Stoppage of one one increment

discipline. with cumulative effect.

3. Disorderly behaviour with Stoppage of one increment with

his superiors during working cumulative effect.

hours.

4. Intimidation to cause Stoppage of one increment

physical harm to his superior. with cumulative effect.'

The above punishment will have cumulative effect and as such in all his next four increments will be stopped with cumulative effect which will have effect of postponing all his future increments by four years.

4. Thereafter, the petitioner was granted personal hearing with regard to the quantum of punishment proposed to be imposed upon him. After hearing the petitioner the final order imposing punishment has been passed to the following effect :

'Shri N. S. Makwana's next three annual increments be and are hereby stopped with cumulative effect.'

As per the calculation made by the Bank, the total monetary loss to the petitioner would be Rs. 2,686/-. But apparently this figure does not take into account the loss of interest during the period of punishment and future loss of interest, loss in P.F. and other terminal benefits. Thus calculated, the cumulative and effective loss to the petitioner at the end of service tenure would be to the tune of scores of thousands of rupees. Apparently, the punishment looks trivial, but if properly calculated even in terms of money it becomes enormous and it has far reaching consequences even otherwise.

5. The aforesaid order was passed on 6th October, 1982. The petitioner preferred this petition under Art. 226 of the Constitution challenging the legality and validity of the order of imposing punishment. When the petition came up for hearing on 23rd December, 1983, an order was passed directing the petitioner to submit an appeal before the appellate authority of the Bank and the appellate authority of the Bank was required to consider and decide the same latest by 14th February, 1984. The petitioner accordingly filed appeal before the appellate authority. The appellate authority of the respondent-Bank has considered the appeal and decided the same as per his order dated 13th February, 1984. The appellate authority has confirmed the finding and order passed by the disciplinary authority. The aforesaid orders are being challenged by the petitioner herein.

6. It is contended by the counsel for the petitioner that the petitioner could have been dealt with as per the provisions of Bipartite Settlement. It governs the industrial disputes between the respondent-Bank and its workmen. Therein the procedure for taking disciplinary action is also laid down. As per the memorandum of settlement dated 19th October, 1966, the departmental proceedings are governed. Chapter XIX deals with disciplinary action and procedure thereof. Para 19.12 deals with the giving of chargesheet to an employee. The said provision in so far as it is relevant reads as follows :

'Employee against whom disciplinary action is proposed or likely to be taken shall be given a charge-sheet clearly setting forth the circumstances appearing against him and a date shall be fixed for enquiry.

7. In this case, the charge-sheet is dated 14th July, 1982. This is clear from the letter dated 12th September, 1982. By this letter, the petitioner has been informed that his explanation was not accepted and in pursuance of the charge-sheet bearing No. DP/IR/7898/82, dated 14th July, 1982, the enquiry was to be held. Now the charge-sheet may be examined. The charge-sheet is in two parts. The first part deals with the misconduct when the petitioner was undergoing training at Staff Training Centre, Ahmedabad, between 18th June, 1982 to 6th July, 1982. It is then observed that :

'a) petitioner was irregular in attendance,

b) was staying out unauthorisedly, and

c) in spite of being advised, he did not show any improvement in his attendance, and behaviour and continued to stay out unauthorisedly.

Therefore, before the end of the training programme, he (the petitioner) was relieved from the training centre. This can be seen from the first part of charge-sheet. (Whether it is only by way of preface to the main charge or otherwise may be considered later on.)

In the second part of the charge-sheet, it is alleged that when the petitioner was relieved, he approached one Mr. Arya of Bank of Baroda, Dhanlaxmi Branch, Ahmedabad, and made certain unwarranted complaints against Shri J. K. Shah, Acting-in-charge of the Staff Training Centre at Ahmedabad and in turn Shri Arya threatened Shri J. K. Shah to withdraw the relieving memorandum of Shri Makwana otherwise he would get Shri Shah transferred out of Ahmedabad and he would also cut off his hands.'

8. On the basis of the aforesaid details of the charge-sheet, the following acts of misconducts have been mentioned in the charge-sheet :

1. Doing acts prejudicial to the interest of the Bank.

2. Doing acts subversive of discipline.

3. Disorderly behaviour with his superiors during his working hours.

4. Intimidation to cause physical harm to his superior.

9. The learned counsel for the petitioner submits that when one reads the details of the charge, it becomes clear that there is no charge of intimidation to cause harm to superior officers. The charge is that the petitioner made certain unwarranted complaints to Mr. R. J. Arya, who in turn threatened Shri J. K. Shah. The charge is not that the petitioner himself intimidated to cause harm to his superior. As per the provisions of para 19.12 of the settlement, the charge-sheet should specify clearly the circumstances appearing against the delinquent. In the charge, there is no circumstance or no details whatsoever which indicate that the petitioner himself intimidated to cause harm to his superiors. Therefore, he is convicted for something which did not form part of the charge. The charge is that he made unwarranted complaints to the Union leader Shri R. J. Arya and in turn Shri Arya threatened Shri J. K. Shah. This is the substance of the charge. On the other hand, it is contended that the petitioner has, knowing fully well admitted the guilt. He was given opportunity of being heard. He made voluntary confession. He was later on represented by a departmental representative. The departmental representative also said that the petitioner as realised his mistakes and confessed his guilt. The only prayer was to look at the family circumstances and his backgrounds. (It may be noted that the petitioner belongs to a backward class community.) On this ground, the prayer for leniency was made. A pointed attention was drawn to the admission made by the petitioner which is reproduced at pages 33 and 34 of the compilation. The respondent-Bank relies upon the following sentences :

'I had approached my friend Shri R. J. Arya and on my advice he telephoned to Shri J. K. Shah, Acting-in-Charge of the Staff Training Centre and threatened him.'

10. The petitioner does not back-out from this statement. His contention is that this aspect, i.e., threatening or intimidating the superiors, was not the subject-matter of the charge at all. The charge was that he made unwarranted complaints and in turn Shri Arya threatened. It was not even the charge that the petitioner either instigated Shri Arya to give threats. Therefore, whatever be the admission that which did not form part of the subject-matter of the charge cannot be made the basis of conviction. To repeat, the charge was that when the petitioner was relieved from the training centre, he approached Shri Arya, the Union Leader and 'made certain unwarranted complaints against Shri J. K. Shah, Acting-in-Charge of the Staff Training Centre, Ahmedabad and in turn Shri Arya threatened on telephone'. The charge is very clear. It is to the effect that the petitioner made unwarranted complaints. The latter part is ascribed to Shri Arya. There is no charge of instigating Shri Arya against Shri Shah nor there is any charge of causing intimidation by the petitioner.

11. The counsel for the respondent-Bank has submitted that here is a delinquent who is well educated. He is serving as a Cashier-cum-Clerk. He is not an illiterate person. He knew English language and the contents of the charge. He knew the implications of confession. Therefore, when he has made admission, he must be knowing what the bank officers were doing when they laid charges against the petitioner. However, the provisions of para 19.12 of the settlement enjoins duty upon the disciplinary authority issuing charge-sheet to clearly set forth the circumstances appearing against the delinquent. In the charge-sheet, there is no charge of instigation or causing intimidation. The fact that the petitioner is well educated and, therefore, presumption that he must have understood the charge, on the contrary, goes against the respondent-Bank. Simply because he is educated and literate, he cannot be held guilty for which there is no charge. Had he, in the same breath admitted other misconduct - say theft of bank money - could he have been held guilty for theft without there being any such theft or loss of any amount to the bank Admission has got to be correlated with the charge only. Moreover, in this case there is no other evidence at all. Once this is accepted, the punishment on the basis that the petitioner has admitted the guilt cannot be sustained.

12. The counsel for the respondent-Bank has submitted that the charge-sheet should be read as a whole. It cannot be read in piece-meal and if read properly, it should be construed that there were charges regarding irregularity and non-attendance. In order to understand whether first part of the charge-sheet also amounted to any charge against the petitioner or not, the said part of the charge-sheet may be referred to. That part of the charge-sheet reads as follows :

'Shri Makwana was nominated to attend 3rd Induction Course for Clerks (Special) being conducted from 18th June, 1982 to 6th July, 1982 at Staff Training Centre, Ahmedabad. During the said training course it was observed that Shri Makwana was irregular in his attendance and was staying out unauthorisedly and in spite of being advised he did not register any improvement in his attendance and behaviour and he also continued to stay out unauthorisedly. Therefore, on 5th July, 1982, i.e., before the end of said training programme, he was relieved from the Training Centre.'

Therefore, the charge-sheet proceeds and states that when he was relieved, he approached one Mr. Arya, etc. The entire reading of the chargesheet makes it clear that first para reproduced hereinabove is by way of preface only. The first part indicates, what was the reason for the petitioner to approach Shri Arya. If we read first part closely, it is also indicated therein that so far as the petitioner was irregular in attendance and was staying out unauthorisedly, the bank had already taken action against him. He was relieved from the Training Centre even before the expiry of the Training Programme. Therefore, to say that this part also forms the basis of the charge cannot be accepted.

13. The counsel for the respondent-Bank has fairly conceded that so far as the fourth act of misconduct mentioned in the charge-sheet (i.e., intimidation to cause physical harm to his superior) is concerned, the same has not been specifically mentioned and enumerated as a misconduct in the settlement. The settlement paras 19.5 and 19.7 enumerates certain acts and omissions which would be either gross misconduct or minor misconduct. Intimidation to cause physical harm to superiors is not included in either gross misconduct or minor misconduct. The counsel for the respondent-Bank submitted that even though the aforesaid count is not enumerated as one of the acts of misconduct, the same can be taken into consideration and on that basis, the penalty can be imposed. The respondent-Bank has relied upon a decision of the supreme Court in the case of Mahendra Singh v. Hindustan Motors [1976-II L.L.J. 259] wherein it has been held as under : (in para 22)

'Even though a given conduct may not come within the specific terms of misconduct described in the Standing Orders, it may still be a misconduct, in the special facts of a case, which it may not be possible to condone and for which employer may take appropriate action.'

The counsel for the petitioner tried to distinguish his case on the basis that in the case before the Supreme Court, the Standing Orders were to be taken into consideration while this case arises out of settlement between the parties. That distinction is of no consequences to my mind. If misconduct is not enumerated in the acts and omissions mentioned in the relevant provisions of settlement or that Standing Orders, it cannot be said that even when such misconduct is proved, no action whatsoever can be taken.

14. However, the pertinent question is, whether such a misconduct is major or minor one This should be decided. In the instant case, the authorities have not indicated anywhere that the said misconduct has been considered to be a gross misconduct or par with the gross misconduct mentioned in para 19.5 of the settlement. The counsel for the respondent-Bank has submitted that having regard to the nature of the misconduct, the same should be considered to be a gross misconduct. But this is the explanation given by the counsel for the respondent-Bank. There is nothing on record to show that disciplinary authority as well as appellate authority has considered this aspect at all. The disciplinary authority as well as appellate authority appear to have proceeded on the footing that it is a misconduct already enumerated and it is a gross misconduct. This basis, itself is erroneous. This particular misconduct is neither enumerated nor mentioned specifically in the settlement. There is no basis for considering that it is per se a gross misconduct. Even so if the authorities wanted to consider it to be a gross misconduct, they should have been given reasons and the petitioner should have been explained that he is charged with a major misconduct. But this is not done. Therefore, it can be said that this omission on the part of the departmental authorities of the respondent-Bank has resulted into a serious prejudice to the petitioner-employee.

15. Assuming that I am wrong in my finding with regard to the first part of the charge-sheet, this part pertains to irregularity and unauthorised staying out by the petitioner during the course of training. Now, para 19.7 which enumerates minor misconduct may be seen. In this para, it is inter alia mentioned that absence without leave or overstaying sanctioned leave without sufficient grounds, unpunctual or irregular attendance is a minor misconduct. For minor misconduct, the punishment provided for in the settlement is as under :

a) be warned or censured; or

b) have an adverse remark entered against him; or

c) have his increment stopped for a period not longer than six months. Thus this count of charge is definitely a minor misconduct, and for that a punishment of stoppage of one increment with cumulative effect cannot be imposed.

16. It is sought to be suggested by the counsel for the respondent-Bank that in the first three counts of the charge, this should be covered and it would form a major misconduct as included in paragraphs 19.5(c), 19.5(e) and 19.5(i) of the settlement. According to the counsel for the respondent-Bank, count No. 1 (doing acts pre-judicial to the interests of the Bank) could be covered by paragraph 19.5(i). i.e., doing any act prejudicial to the interests of the Bank or gross negligence or negligence involving or likely to involve the Bank in serious loss. Further, according to the learned counsel for the respondent-Bank, count No. 2 could be covered by para 19.5(e), i.e., wilful insubordination or disobedience of any lawful and reasonable order of the management or of a superior. However, if we read the charge-sheet, there is no such specific charge at all. Therefore it cannot be said that there was any such charge of wilful insubordination or disobedience of any lawful and reasonable order of the management.

17. Then remains the question of petitioner's alleged misbehaviour with superiors during working hours. This according to the respondent-Bank, would be covered by para 19.5(c) which reads as follows :

'drunkenness or riotous or disorderly or indecent behaviour in the premises of the bank.'

If one reads the charge there is no specific charge whatsoever on this count.

18. Now the position which emerges is like this -

The petitioner has been held guilty of the following charges -

(1) Doing acts prejudicial to the interest of the Bank.

(2) Doing acts subversive of discipline.

(3) Disorderly behaviour with his superiors during working hours.

(4) Intimidation to cause physical harm to his superior.

It was proposed that on each of the count, one increment with cumulative effect be withheld. This is as per the Enquiry Officer's report dated Oct. 5, 1982. On the basis the explanation of the petitioner was called for. After considering the reply of the petitioner, the order imposing final penalty, that is stoppage of next three annual increments with cumulative effect was passed. Therefore, the petitioner has been held guilty for all the counts.

19. As stated hereinabove, one of the counts of charge is not specifically enumerated as misconduct, i.e. count No. 4 (intimidation to cause physical harm to his superior). There is no finding or no mention whatsoever whether this misconduct is considered as a major or a minor misconduct. The order and the enquiry proceedings are completely silent on this point. So far as count Nos. 2 and 3 of the charge are concerned, there is no specific mention whatsoever of these charges in the charge-sheet. The net result is that there is only one count of charge in respect of which by stretching the reasoning, it can be said that the petitioner's attention was drawn to that particular misconduct, i.e. doing any acts prejudicial to the interest of the bank as enumerated in para 19.5 of the settlement. Regarding this also, there are no specific details.

20. Thus, in the above view of the matter, the petitioner has been held guilty of misconduct for which there is no specific charge and hence the punishment imposed upon the petitioner cannot be sustained because the charge-sheet given to the petitioner is not in accordance with the provisions of para 19.5 of the settlement. The admissions relied upon by the respondent-Bank is with respect to something which did not form part of the charge-sheet. Moreover, three of the counts of charges do not flow from the details of charges given in charge-sheet. Therefore, the result is that the petitioner has been held guilty and punished for which there was no charge and no evidence. Conviction and punishment in such circumstances cannot be sustained.

21. Counsel for the petitioner contended that the so-called admission or confession cannot be made the sole basis of conviction and punishment as is sought to be done by the respondent-Bank. In his submission, even though there may be clear-cut admission and/or confession about certain alleged misconduct, no conviction and punishment can be based on such admission alone, if there is no evidence to prove the factum of misconduct. In this case it is an undisputed position that there is no evidence with regard to the allegation that Shri R. J. Arya, the Union Leader was requested to threaten and/or intimidate Shri J. K. Shah, Acting-in-Charge of the Staff Training Centre, Ahmedabad. In the departmental proceedings Shri R. J. Arya has not been examined. No other evidence has been led in this behalf. The Enquiry Officer has submitted the report on the basis of admission alone. It is contended that admission made by the delinquent cannot be made the sole basis for conviction and imposition of punishment. It is contended that if a person is charged with the misconduct of theft of bank money, and if he confesses the misconduct, can such a person be convicted and punished only on the basis of his confession If so can the possibility be ruled out that there may not be an occurrence of theft at all Therefore in his submission first of all the factum of the offence or that of misconduct should be proved. After the misconduct is established, either by documentary evidence or by oral evidence the further question as to whether the employee concerned is guilty of the misconduct charged or not may be required to be examined. At that stage, if the employee concerned makes admission, then further evidence may not be necessary. In a given case where the delinquent officer/employee makes admission immediately after the charge-sheet is served, even then the departmental authorities would not be relieved of their duty to establish the factum of offence or the facts constituting the misconduct by producing oral or documentary evidence. This may be proved even by an affidavit of certain persons.

22. There is much force in the contention and arguments advanced by the counsel for the petitioner. It may happen that the Bank authorities may bona-fide believe that there is theft or misappropriation of bank money. The delinquent officer charged with misconduct of theft or misappropriation may be induced to confess the guilt for one reason or another - say informal understanding that he shall be dealt with leniently. Or that he himself might have been lost in the jungle of account books and he himself may not be sure as to whether he has committed any mistake or not. He may be on the verge of retirement and may be desirous to put an end to any such inquiry. He may not have resources to fight the case put against him. For any of these reasons say on account of mere foolishness, he may confess the misconduct charged against him and be punished for the same without there being any evidence or proof for the same, i.e. theft/misappropriation. Later on in audit it may be discovered that there was only accounting mistake and no theft/misappropriation whatsoever. To avoid such possibility, it is always necessary that the factum of misconduct be established. Moreover disciplinary proceedings by the department are in the nature of quasi-criminal proceedings - much more so from the view point of consequences of such proceedings. An employee may be visited with the penalty of removal or dismissal from service death sentence. Therefore, proof of the facts constituting misconduct has got to be emphasised. Ordinarily, admission alone of the delinquent officer cannot be regarded as sufficient proof of misconduct as well as the facts constituting misconduct.

23. In the instant case, as stated hereinabove, there is no charge to the effect that the petitioner himself gave threat to Shri J. K. Shah or he intimidated Shri J. K. Shah. Thus, there is twofold infirmity in this case. There is no evidence with regard to the threat or intimidation and there is no charge to this effect. Moreover, sufficient details are not mentioned in the chargesheet. In such a situation, when conviction and punishment is based solely on the admission made by the delinquent officer/employee, the same cannot be sustained.

24. In the result, the petition is allowed. The order passed by the respondent-Bank authorities imposing punishment as per order dated Oct. 6, 1982 Annexure 'F' which is confirmed by the appellate authority as per his order dated Feb. 7, 1984 is quashed and set aside. Rule made absolute with no order as to costs.

25. Petition allowed.


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