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Babulal Ajmera Vs. the State Bank of Bikaner and Jaipur Through Its General Manager and anr. - Court Judgment

LegalCrystal Citation
SubjectService
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular First Appeal No. 83 of 1972
Judge
Reported in1974WLN288
AppellantBabulal Ajmera
RespondentThe State Bank of Bikaner and Jaipur Through Its General Manager and anr.
DispositionAppeal dismissed
Cases ReferredK.M. Mukherjee v. Secretary and Treasurer
Excerpt:
.....latter also made a demand from the plaintiff to make good the amount of rs. 3. the opportunity of personal hearing though asked for by the plaintiff was not afforded by the agent sad therefore the order of dismissal is against the mandatory requirements of para no. that apart, the very fact that the bank's money which was admittedly in the custody of the plaintiff and was lying in his drawer disappeared in his presence clearly shows that but for the negligence or carelessness of the plaintiff, the money could not have disappeared. it is not in dispute that the plaintiff was given a charge-sheet clearly setting forth the circumstances appearing against him. (a) an employee against whom disciplinary action is proposed or likely to be taken shall be given a charge sheet clearly setting..........agent of the defendant-bank, sawai man singh highway branch, dismissing the plaintiff from bank services is illegal, unauthorised, improper, unjust and devoid of all principles of natural justice. the plaintiff is entitled to be re-instated.(b) that a decree for rs. 10,000/- be passed in favour of the plaintiff against the defendants.(c) that the defendants be further directed to pay the plaintiff, his salary, dearness allowance, city allowance etc. till he is not reinstated in service with interest @ 1 % per month.(d) any other relief which the court deems proper and favourable to the plaintiff be also awarded.(e) cost of that suit be also taxed on the defendant-bank.the main grounds on which he based the suit are firstly, that the order of dismissal was wrongly passed in as.....
Judgment:

S.N. Modi, J.

1. This appeal by the plaintiff Babulal is directed against the judgment and decree of the Additional District Judge No. 1, Jaipur City, dated 11 3-72. Briefly stated, the relevant facts leading to this litigation are as follows.

2. The plaintiff was appointed as a temporary cashier by the Manager of the then Bank of Jaipur Ltd. vide his letter dated 22 11 66. He was confirmed as a cash clerk on 27 5 67. In accordance with the terms and conditions sanctioned by the Central Government under Section 38 of the State Bank of India (Subsidiary Banks) Act, 1959, the assets and liabilities of the Bank of Jaipur Ltd. were taken over by the State Bank of Bikaner and by virtue of the notification dated 18 12-t2 issued by the Central Government under Section 3(A) of (be said Act, the name of the State Bank of Bikaner was changed into the State Bank of B leaner and Jaipur from 11-63 The plaintiff then became an employee of the State Bank of Bikarer and Jaipur, hereinafter called as the Bank, from M ?3. On 3 10 64 the plaintiff was working as a receiving cashier at the Sawai Mansingh Highway Branch. Jaipur. At about 115pm he found a bundle of 102 currency notes of Rs. 100 each missing from his drawer A report about this shortage was lodged to the police by the Agen' of the Bank. The latter also made a demand from the plaintiff to make good the amount of Rs. 10,200. The plaintiff did not deposit the amount On 10-10-64 the plaintiff was suspended and on 27-11-64 he was served with a notice to show cause why disciplinary action should not be taken against him. A departmental enquiry was then held on the charges levelled against the plaintiff by Shri K.B. Tiivedi who submitted his report recommending dismissal of the plaintiff On 3 6-65 the plaintiff was asked to show cause why be should not be dismissed from the service. A detailed reply was submitted by the plaintiff in answer to the notice wherein a request was also made for personal hearing. The Agent ignored the request fur personal hearing and passed the order of dismissal on 6 3 65. Aggrieved by the said order of dismissal, the plaintiff went in appeal to the Chief Accountant who dismissed the appeal. The plaintiff ultimately after due notice instituted the present suit on 6 8-68 and prayed for grant of the following reliefs:

(a) That the plaintiff's suit be decreed against the defendants and a declaration be made that the order dated 6-8 65 passed by Shri B.M. Agarwal, Agent of the defendant-Bank, Sawai Man Singh Highway Branch, dismissing the plaintiff from Bank services is illegal, unauthorised, improper, unjust and devoid of all principles of natural justice. The plaintiff is entitled to be re-instated.

(b) That a decree for Rs. 10,000/- be passed in favour of the plaintiff against the defendants.

(c) That the defendants be further directed to pay the plaintiff, his salary, dearness allowance, city allowance etc. till he is not reinstated in service with interest @ 1 % per month.

(d) Any other relief which the court deems proper and favourable to the plaintiff be also awarded.

(e) Cost of that suit be also taxed on the defendant-bank.

The main grounds on which he based the suit are firstly, that the order of dismissal was wrongly passed in as much as there was no negligence or carelessness or want of due diligence on the part of the plaintiff in dealing with the Bank's cash as a receiving cashier on 3.10 64, secondly, that while the appointing authority of the plaintiff was the Manager, he has been dismissed by the Agent Shri B.M. Agarwal, an officer below the rank of the appointing authority and thirdly, that the impugned order was passed in contravention of the requirements of para No. 521 of the Shastri Award The suit was resisted by the Bank. It was admitted that the plaintiff was appointed by the Manager of the then Bank of Jaipur Ltd. It was also admitted that the plaintiff informed about the shortage of on 3.10.64. It was pleaded that the shortage was due to negligence on the part of the plaintiff. The Bank asserted that the departmental enquiry was just and proper and dismissal order was passed by a competent authority. The learned Additional District Judge found in favour of the Bank & dismissed the suit. Hence this appeal.

3. Arguing the appeal, Mr. P.N. Datt, the learned advocate for the plaintiff-appellant, raised the following three points : 1. The enquiry officer and other officers of the Bank erroneously held that the shortage in cash on 3.10.64 was occasioned due to the negligence of the plaintiff. 2. The appointing authority being the Manager, the order of dismissal passed by the Agent, an officer subordinate to the Manager, is illegal and null and void. 3. The opportunity of personal hearing though asked for by the plaintiff was not afforded by the Agent sad therefore the order of dismissal is against the mandatory requirements of para No. 521 (10) of the Shastri Award.

4. The first contention of Mr. Datta cannot be accepted on the short ground that the Court is not entitled to go into the facts to find out as to whether the finding of negligence arrived at by the enquiry officer and confirmed by the Agent and the Chief Accountant on appeal is correct and not, I am of the view that the Court is not entitled to reconsider on the facts the decision given in the domestic enquiry The Court is not concerned with the question whether before the officer or authority passing the order there was sufficient evidence to justify the order. That apart, the very fact that the Bank's money which was admittedly in the custody of the plaintiff and was lying in his drawer disappeared in his presence clearly shows that but for the negligence or carelessness of the plaintiff, the money could not have disappeared. The learned Additional District Judge has considered the entire evidence on this point and I entirely agree with him that the charge of negligence against the plaintiff stands fully established.

5. The second contention of Mr. Datt is equally devoid of merits. It is abundantly clear from the notice Ex A/4 issued by the General Manager of the Bank on 17.7.64 that Shri B.M. Agarwal, Agent, SMS Highway, Jaipur, was appointed as the authority empowered to take disciplinary action and to pass original order in respect of all employees and officers at the Bank whose total emoluments did not exceed Rs. 500 per mensem. The genuineness of the notice Ex A/4 is not challenged before me. In view of the notice Ex. A/4 which was issued in accordance with para No. 521 (12) of the 'Sastry Award' as approved by the Desai Award, it cannot be said that Shri B.M. Agarwal was not competent to pass the impugned order.

6. It is, however, contended by Mr. Datt that since the Agent is subordinate in rank to the Manager, the order of dismissal passed by an officer subordinate to the appointing authority is illegal. Suffice it to say that there is no cogent evidence on the record to show that the post of the Agent is subordinate in rank to the post of the Manager PW 5 Dulicband & PW 6 Nirmal Kumar who are the employees of the Bank, have stated that they were appointed as cashiers in the year 1956 by the Manager* They have further stated that they were appointed as cashiers in th'e year 1956 by the Manager. They have further stated that at that time Shri A.R. Sakoor was the Manager and Shri N.K. Acharya was the agent and that the post of Manager was senior in rank to the post of Agent, The learned Additional District Judge has not placed reliance on the testimony of PW 5 and PW 6 as they showed ignorance about the Schedule of powers of Managers and Agents. The finding of the learned Additional District Judge that both these posts were of equal rank is supported by the statement of DW 1 Shri B.M. Agarwal. He has deposed that after the merger of the Bank of Jaipur Ltd., with the Bank of Bikaner on 1.1 63, the post of Manager was abolished and all Managers were designated as Agents. He has further deposed that 'he post of Manager and that of Agent are of the same cadre and rank. I see no reason to disbelieve the statement of DW 1. The requirement that the dismissing authority should not be subordinate to the appointing authority operates when the former appointing authority exists and some other authority subordinate to it has exercised the power of dismissal over an employee. This requirement has no application to a situation when the authority dismissing the employee was not subordinate but of equal rank and the former appointing authority had ceased to exist. There is thus no substance in the second contention.

7. The last point advanced by Mr. Datt is that the plaintiff was refused a personal hearing even though he had asked for it. It is not in dispute that the plaintiff was given a charge-sheet clearly setting forth the circumstances appearing against him. It is not further in dispute that before the enquiry officer the plaintiff was given personal hearing to represent his case, & to cross-examine the witnesses who gave evidence against him and to produce his own evidence. He was also permitted at his request to be defended by a representative of a registered Union of Bank Employees. When the report of the enquiry officer went to the Agent Shri B.M. Agarwal, he issued notice of the proposed punishment. The plaintiff showed cause against the proposed punishment and further prayed that he be heard personally The short point before me is whether Shri B.M. Agarwal was bound to give a personal hearing at the stage of the show-cause notice before imposing actual punishment arid after finding the guilt of the plaintiff proved by the enquiry officer, where he was personally heard. It is argued that the 'Sastry Award' requires personal hearing expressly at this stage of the show-cause notice and since no opportunity of personal hearing was afforded to the plaintiff, the impugned order violated the requirements of para No 521 (10) of the 'Sastiy Award' (as approved by the 'Desai Award') under which the impugned order purports to have been made.

8. Para No 521 (10) of the 'Sastry Award' runs as follows:

Para 521.--A person against whom disciplinary action is proposed or likely to be taken should, in the first instance, be informed of the particulars of the charge against him; he should have a proper opportunity to give his explanation as to such particulars. Final orders should be passed after due consideration of all the relevant facts and circumstances. With this object in view, we give the following directions:

(1) to (9) xx xx xx(10) The procedure in such cases shall be as follows:(a) An 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, sufficient time being given to him to enable him to prepare and give his explanation as also to produce any evidence that be may wish to tender in his defence, He shall be permitted to appear before the officer conducting the enquiry, to cross-examine any witness on whose evidence the charge rests and to examine witness and produce other evidence in his defence. He shall also be permitted to be defended by a representative of a registered union of bank employees, or, with the bank's permission, by lawyer. He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him. XX XX XX XX XX.

The emphasis is laid on the last sentence of this para namely, 'He shall also be given a hearing as regards the nature of the proposed punishment in case any charge is established against him.' It is argued that this is a mandatory provision and it was incumbent upon the punishing authority to give a hearing before passing the actual punishment. Assuming that the authority passing the impugned order violated the requirements of para No. 521 (10) of the Sastri Award, the question arises whether the relief by way of declaration regarding continuity of service and reinstatement after holding the order dismissing the plaintiff to be null and void can be granted by the Court In Dr. S. Dutt v. University of Delhi : [1959]1SCR1236 , the question of legality of an award directing that the order of dismissal was ultra vires, malafide and of no effect and that the appellant (in that case) continued to be a Professor of Chemistry, arose before the Supreme Court. In that case, appellant Dr. Dutt was dismissed from service by the University of Delhi. The dispute regarding his dismissal was later referred to arbitration under Section 45 of the Delhi University Act. An award was made by the sole arbitrator that the appellant's dismissal was ultra vires, malafide and had no effect on his status and he will continue to be a Professor of the University. This award was filed in the Court of Sub Judge who passed a decree making the award a rule of court, The University of Delhi challenged this decision in appeal and the Punjab High Court set aside the award on the ground that such a declaration amounted to specific enforcement of a contract of personal service forbidden by Section 21 of the Specific Relief Act. Dr. Dutt then approached the Supreme Court which agreeing with the High Court observed as under:

There is no doubt that a contract of personal service cannot be specifically enforced. Section 21 Clause (b) of the Specific Relief Act, 1877, and the second illustration under this clause given in the section makes it so clear that further elaboration of the point is not required. It seems to us that the present award does purport to enforce a contract of personal service when it states that the dismissal of the appellant 'has no effect on his status' and 'He still continues to be a Professor of the University'. When a decree is passed according to the award which if the award is unexceptionable, has to be done under Section 17 of the Arbitration Act after it has been filed in Court, that decree will direct that the award be carried out and hence direct that the appellant be treated as still in the service of the respondent. It would then enforce a contract of personal service for the appellant claimed to be a professor under a contract of personal service, and so offend Section 21(b).

A similar question regarding the right of a distressed employee to get a declaration of his right to continue in employment came up for consideration before the Supreme Court in S.R. Tewari v. The District Board, Agra : (1964)ILLJ1SC wherein the position of law was summed up as under:

Under the common law the Court will not ordinarily force an employer to retain the services of an employee whom he no longer wishes to employ. But this rule is subject to certain well recognized exceptions. It is open to the Courts in an appropriate case to declare that, a public servant who dismissed from service in contravention of Article 311 continues to remain in service, even though by so doing the ' State is in effect forced to continue to employ the servant wham it does not desire to employ. Similarly under the industrial law, jurisdiction of the labour and industrial tribunals to compel the employer to employ a worker whom he does not desire to employ, is recognised. The Courts are also invested with the power to declare invalid the act of a statutory body, if by doing the act the body has acted in breach of a mandatory obligation imposed by statute, even if by making the declaration the body is compelled to do something which it does not desire to do.

The same principles were reiterated by the Supreme Court in Executive Committee of U.P. State Warehousing Corporation Lucknow v. Chandrakiran Tyagi : (1970)ILLJ32SC . Relying upon its earlier decisions in Dr. S. Dutt's case and S.R. Tewari's case (supra), their lordships observed as under:

From the two decisions of the Court, referred to above, the position in law is that no declaration to enforce a contract of personal service will be normally granted. But there are certain well recognised exceptions to this rule and they are : to grant such a declaration in appropriate cases regarding (1) a public servant, who has been dismissed from service in contravention of Article 311(2) Reinstatement of a dismissed worker under Industrial Law by Labour or Industrial Tribunals. (3) A statutory body when it has acted in breach of a mandatory obligation, imposed by statute.

The case of the plaintiff, in the present case, does not come under the first category for Article 311 of the Constitution has no application to the employees of the Bank. The Bank is a Corporation constituted under Section 3 of the State Bank of India (Subsidiary Banks) Act, 1959 Section 41 of the said Act enacts that every Bank constituted under Section 3 (new Bank) shall be a body corporate with perpetual succession and a common seal and shall sue or be sued in its name. Section 42 enacts that the body corporate constituting each of the new Banks shall consist of the State Bank and other share-holders, if any, for the time being, of the new Bank A dismissed employee of a bank like the plaintiff cannot be said to have held a civil post under the Union Government or the State Government and therefore Art. 311 of the Constitution has no application. I am supported in my view by a Bench decision of the Patna High Court in Baleshwarprasad v. Agent, State Bank of India, Gaya : AIR1958Pat418 . No question therefore arises that the plaintiff was dismissed from service in contravention of Article 311 of the Constitution of India.

9. The case of the plaintiff also does not fall within the second category as no reinstatement order in favour of the plaintiff was passed under the Industrial Law by Labour or Industrial Tribunal*

10. The question arises whether the plaintiff is entitled to the relief under the third category. The plaintiff's case is that the authority competent to dismiss him violated the requirements of Paragraph 521 (10) of the 'Shastri Award' as approved by the 'Desai Award'. These Awards, in my opinion have no statutory force. The history of these Awards is found in the Introductory Chapter of the Report of the 'Desai Award'. By a notification dated 5-1-52 the Central Government under Section 7 of the Industrial Disputes Act, 1947, constituted an Industrial Tribunal consisting of Shri S. Panchapagesa Sastry, a retired Judge of the Madras High Court, as Chairman and Shri M.L. Tappan and Shri V. L. D'souza as Members and referred to this Tribunal for edjudication disputes lelatirg to numerous banks including backs situated in in the then Part B States and their workmen under Section 10 of the Industrial Disputes Act. The said Tribunal gave its Award in the month of March 1953 which is known as the 'Sastiy Award'. In 1960 a National Industrial Tribunal predict over by Desai J. of the Bombay High Court was set up by the Government of India and several disputes relating to Banking Companies and their employees were referred to this Desai Tribunal under Section 10 of the Industrial Disputes Act, 1947. The Award given by this Tribunal in the year 1962 is known as the 'Desai Award'. It modified and substituted the terms of the 'Sastry Award' in certain respects, the details of which I need not mention hare. The 'Sastry Award' lays down the terms and conditions of the relationship between the Bank and its employees. Paragraph 521 (10) of the 'Sastri Adward' prescribes the procedure to be followed in case of termination of the services of the employees of the Bank. The terms and conditions laid down in the 'Sastry Award are no doubt binding on all the banks and their employees which were parties to the dispute. But the terms and conditions laid down therein have no statutory force. I am supported in my above view by a decision of the Calcutta High Court in K.M. Mukherjee v. Secretary and Treasurer, S.B.I. and Ors. : (1969)ILLJ50Cal wherein it was laid down by D. Basu J. that the Sastry Award has no legal force superior to that of the award of a statutory arbitration. The relevant observations are found at page 61:

It is needless to say (hat the Award of an Industrial Tribunal is the decision of an industrial adjudication by a statutory tribunal and can have no more statutory force than the decree of a civil court. Either may be executed or otherwise implemented in the manner laid down in the relevant law, but it cannot be enforced by the prerogative writ of mandamus as an instrument having the force of law of itself.

An order of dismissal made without following the procedure laid down in paragraph 521 (10) of the 'Sastry Award' would be contrary to the terms and conditions of the said Award but it cannot amount to breach of a mandatory obligation imposed by the Statute so as to bring it within the third category. The utmost that can be said is that the order of dismissal was wrong and the Bark was liable to pay damages for wrongful dismissal. Even so, the order of dismissal cannot be held to be one which has not terminated the services of the plaintiff. The plaintiff therefore cannot ignore his dismissal from service and pay for the relief to treat him still in service or claim arrears of pay or reinstatement. What he can claim is damages for wrongful dismissal. I am not concerned here with damages as no such prayer was made by the plaintiff in the plaint.

11. It may also be made clear that apart from the 'Sastry Award' the plaintiff has not been able to lay his hands upon any provision of the State Bank of India (Subsidiary Banks) Act, 1959 or any other statutory provision which requires the punishing authority to afford an opportunity for oral hearing to the employee before actual punishment is imposed against him.

12. In view of my above conclusion, it is not necessary for me to go into the question whether it was obligatory under para 521 (10) of the Sastry Award to afford opportunity of oral hearing to the plaintiff at the stage of show cause notice for the proposed punishment, and before imposing the actual punishment. It may, however, be recapitulated here that the plaintiff was admittedly personally present and was afforded full opportunity to cross examine the witnesses examined on behalf of the Bank and produce his own evidence in defence. He was also assisted by a representative of the Bank Employees Union during the course of enquiry. When the report of the enquiry officer reached the Agent he issued the notice regarding the proposed punishment. A detailed reply was submitted by the plaintiff in answer to the notice. The Agent before passing the impugned order fully considered each and every ground narrated in the written reply submitted by the plaintiff. It is difficult to see as to what difference does it make if the cause against punishment is shown in a petition or is heard orally from the employee coming up in person and explaining his position. Again, the plaintiff went in appeal against the impugned order which was dismissed after due consideration by the Appellate Authority. In these circumstances, in my opinion, the requirement of hearing of the employee contained in paragraph 521 (10) of the 'Sastry Award' was substantially complied with and refusal of personal hearing even if irregular caused no prejudice to the plaintiff specially when this Court has found negligence on the part of the plaintiff fully established.

13. Looked at from whatever angle, the result is that the appeal is without any merits It is accordingly dismissed with costs.


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