1. The facts in this case arc shortly as follows : The petitioner was previously employed under the Imperial Bank of India, which has now become the State Bank of India, At the relevant time, he was employed as a Money-Teller or Money-Tester, in the branch of the State Bank of India at Howrah. On the 22nd October, 1956 he was suspended by the Agent, State Bank of India, Howrah and in January, 1957 he was served with a chargesheet. I shall mention briefly what the charges were about. It is a practice of the Howrah Branch of the State Bank for currency notes to be sorted in packets of various denominations, stitched together with a slip known as a 'poddar' slip, signed by the Cashiers or Money tester. These bundles contain notes aggregating to rupees one hundred in each bundle and where there is a shortfall) they are re-adjusted by transferring notes from one bundle to another. When the notes become dirty, they are sent to the currency for being changed into clean notes. During the process of making the bundles, sending then to the currency etc., the petitioner used to handle the same. About the end of August, 1956, it was reported that in these bundles considerable shortages were being detected. It was suspected that the petitioner was responsible for such shortages and indeed, upon being confronted, he made a written confession, a copy whereof is annexed to the petition of Brij Kishore Kacker affirmed on the : 12th August 1959 and marked with the letter 'B'. Later on, he has tried to explain away the confession by saying that this was done in order to assist the Head Cashier. However, after this, the petitioner was suspended, & was charge-sheeted. A copy of the chargesheet is annexure 'C' to the said petition. It was stated therein that the deficiency aggregated to Rs. 2,724/-, which amount was later on slightly reduced. The, petitioner showed causearid thereafter on the 19th September, 1958 there was an order of discharge passed by the respondent No. 2, the Agent, State Bank of India, Howrah. There was an appeal, preferred by the petitioner and on the 13th March, 1959, that appeal was dismissed. Now this application has been made.
2. A number of grounds have been taken in the petition, but the ground that has been pressed is to the effect that the petitioner was not given a proper opportunity of defending himself, inasmuch as no copy of the report of the Enquiry Authority was ever made available to him, so that he was not put in a position to show cause and to defend himself. Actually when this application was made, this point was not specifically taken, in the petition and I allowed an amendment to be made, whereupon fresh affidavits have been filed. I have before me a supplementary affidavit by Brij Kishore Kacker affirmed on the 11th July 1961. In this, the position with regard to this report has been fully dealt with It seems to be as follows:
A copy of the enquiry report has been annexed to the said supplementary affidavit and appears at page 9. It is not described as a 'report' but as 'proceedings of the Departmental Enquiry held at the State Bank of India, Howrah, etc.' This enquiry report, which consists of a number of pages, was submitted to the Agent of the Howrah Head Office. It was first perused by Mr. S.K. Dutta of the Staff Section, who prepared a note based thereon for the Deputy Secretary and Treasurer. A copy of that note is annexure 'B' to the said affidavit. The part relevant for our purposes is paragraph 4 and I must set it out:
'In view of the findings of the Enquiry Officer, the employee does not appear to be a deserving person to be retained in the Bank's service, Shri Mukherjee has completed only 2 1/2 years' sendee and has proved Himself to be an undesirable employee, On whose integrity complete reliance cannot be placed by the Bank. Though a cast-iron case has not been possible to he made out against Shri Mukherjee and there is no direct conclusive evidence available to sustain the Bank's charge against him, strong suspicions attach to his conduct and we may discharge him under the provisions of paragraph 521 (10) (c) of the Sastry Award; in terms of this paragraph, discharge may be given to an employee where evidence is found to be insufficient to sustain the charge and the Bank does not, for some reason or other, consider it expedient to retain the employee in question any longer in service.'
3. This recommendation was approved in writing by the appropriate authorities. On the 20th December, 1957 a show cause notice was issued on the petitioner in the following terms : 'With reference to the departmental enquiry held at this branch on the 6th, 13th and 15th July and on the 23rd August 1957 I have to inform you that the report of the Enquiry Officer in your case has been considered by the Bank and it is proposed that you be discharged on payment of a month's pay and allowance in lieu of notice, as provided in paragraph 521(10) (c) of the Sastry Award.
Accordingly you are hereby required to appear personally before me on Thursday, 26th December 1957 at 11-15 a.m. and show cause, why the proposed punishment should not be imposed upon you by the Bank.'
4. The petitioner showed cause, and on the 19th September, 1958 an order was passed by the Agent of the State Bank of India, Howrah discharging the petitioner from service. A copy of that letter is annexure 'P' to the petition. The petitioner has now come to this Court.
5. So far as the appeal, is concerned, it was pointed out that the petitioner was not dismissed by way of disciplinary action and he had no right to a personal hearing. The matter was, therefore, decided on the record and the appellant was dismissed. So far as the report is concerned, it is admitted that no copy of the report was served upon the petitioner. What is, however, said is that he was allowed to inspect the report, save and except that portion of it which is headed 'findings'. It is said that the Bank never gives inspection of the findings, because third parties may be involved, and the bank may become involved in libel actions.
6. Now, if the provisions of Article 311(1) applied in the case of the petitioner, then I would not have approved of the procedure that has been adopted. The punishment was given after reading the report, and the show cause notice itself refers to the report. Therefore, if he could not look into the most material part of the record, namely, the 'findings', I would not have held that the petitioner had sufficient opportunity of defending himself. The question is, however, as to whether Article 311(1), or analogous principles apply to the case of the petitioner.
7. So far as the State Bank is concerned, it was brought into existence by the State Bank of India Act (23 of 1955) and, as I shall presently show, it is not a Governmental body. There are provisions in the said Act for the framing of rules. . If rules had been framed under statutory powers and such rules had been violated, it might conceivably be the subject-matter of an application for a writ in the nature of mandamus. Here, however, We find that no statutory rules have been framed. The facts are as follows:
8. Many years ago there was an industrial dispute between the bank and its workers. This dispute was referred to adjudication and there was mi award called the 'Sastry Award' which became binding on the banks, which were parties to it and their workmen. At the relevant time, this award was in force. This award, inter alia, dealt with the question of disciplinary action, punishment and discharge of employees of the bank. The relevant clauses in the award are Clauses 521 and 522. Clause 521 lays down the procedure for taking disciplinary action and is more or less on the same lines as Art, 311, providing for the issue of a chargesheet, for an enquiry etc. The relevant portion is Rule 521(10}(c) which runs, as follows:
'In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the 'gross' type he may be merely discharged, with or without notice or on payment of a mouth's pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not he deemed to amount to disciplinary action,'
9. I have already cited from the enquiry report and the order of the authorities to show that the order that was made was an order of discharge on the ground that the evidence was insufficient to sustain the charges preferred against the petitioner. It therefore comes within the last part of Clause 521(10)(c) of the Sastry Award, which clearly states that such an order of discharge made under that rule will not be taken to be by way of disciplinary action. If it is not a discharge by way of disciplinary action, clearly the question of serving the enquiry report upon the petitioner or giving him adequate opportunity of defending himself do not arise. It seems that this case is fully covered by a Division Bench decision of the Patna High Court, Baleshwar Prasad v. Agent, State Bank of India, Gaya, : AIR1958Pat418 . There also, a certain employee of the State Bank of India working at the Gaya Branch was discharged under the provisions of Clause 521 (10)(c) of the Sastry Award. He made an application under Article 226 before the High Court of Patna. The first point contended was that the petitioner was holding a permanent civil post ;under 'the Union Government, and that the order of discharge was violative of the provisions of Articles 311 and 320 of the Constitution of India. Choudhary J. stated as follows :
'The first ground on which the petitioner based his case for issue of a writ is that he was holding a permanent civil post under the Union Government and that the order of discharge has been made in violation of the provisions of Articles 311 and 320 of the Constitution of India. The State Bank of India is a corporation incorporated 'under the State Bank of India Act (Act 23 of 1955) to take over the undertaking of the Imperial Bank of India. Sub-section (2) of Section 3 of that Act enacts that the Reserve Bank together with such other persons as may from time to time become shareholders in the State Bank in accordance with the provisions of this Act, shall so long as they are shareholders in the State Bank constitute a body corporate with perpetual succession and a common seal under the name of the State Bank of India, and shall sue and be sued in that name. It is, therefore, contended on behalf of the opposite party that the petitioner could not be said to have held a civil post under the Union Government and Articles 311 and 320 of the Constitution of India, have no application. The contention is perfectly correct and must prevail as being supported by a Bench decision of this Court in Subodh Ranjan Ghosh v. Sindri Fertilisers andChemicals Ltd., : (1957)IILLJ686Pat , in which it was held that the Sindri Fertilisers and Chemicals Limited Company is a separate legal entity, has separate legal existence and is a different person altogether, from the subscribers to the memorandum, namely, the President or the Secretary to the Government of India, and that in the eye of the law it is not the agent of the Union Government or trustee for them, and therefore, Articles 311 and 320 of the Constitution of India have no application to the case of the servants of that company.''
10. With this enunciation of the law I respectfully agree. The position is that the petitioner is not a civil servant under the State or the Union, but is an employee of a limited company incorporated under a special statute. Therefore, the provisions of Art, 311 do not apply. As I have already stated, what did apply were certain provisions of the award passed in an industrial adjudication. Therefore, the matter must entirely be governed by the said provisions. It was further held in the case cited above that where the order of discharge was under the terms of paragraph 521(10) (c) of the above award, it does not amount to punishment by way of disciplinary action, and there is no necessity of giving a hearing to the employee before discharging him. As regards the serving of a copy of the report, this is what was said by the learned Judge--
'It has also been contended On behalf o the petitioner that there has been violation of natural justice in this case as a copy of the enquiry report, though asked for, was not supplied to the petitioner, although he was entitled to it under the Sastri Award. For the reasons given above for rejecting the contentions, regarding a hearing being given in respect of the proposed punishment and the denial of the right of appeal, this contention is also rejected.'
11. I respectfully agree with the said judgment. In my opinion, the matter must entirely be governed by the provisions of the Sastry Award, and inasmuch as the petitioner has been discharged: for insufficiency of evidence, it must be taken to be a discharge not by way of disciplinary action, but under paragraph 521(10) (c) of the Sastry Award which, is a part of the terms of service of the petitioner. Mr. Dutta has cited before me a number of cases in which, upon the facts thereof, it was held that the order was made by way of punishment. What had happened was that certain disciplinary proceedings were drawn up, against the delinquent, but, at the end, the order made was not in consequence thereof,: but in 'he form of a simple order of discharge or removal from service under the terms of service of the employee concerned. (See D. R. Menon v. Director, Harijan Welfare, (S) : AIR1957All408 and Shrinivas Ganesh v. Union of India, (S) : (1957)IILLJ189Bom .) These cases depend on their Own facts. They were not cases where the employee concerned was governed by the terms of an award. In the present case, I do not think there is any room for doubt that the petitioner was discharged under the provisions of para 521(10)(c) of the Sastry Award because the various orders culminating in the discharge, including the show-cause notice, expressly mention this fact. , As I have stated above, the authorities came to the conclusion that it could not be said that upon the evidence adduced it had been conclusively shown that the petitioner was guilty of the charges preferred against him. It had been rcommended that the (petitioner should be discharged, as a person against whom there was insufficient evidence for conviction of a charge, and yet it was not considered beneficial to continue his employment in the Bank. Mr. Dutta has argued that in the Patna case, it was a Question of condonation and therefore no analogy should be drawn in the present case. In my opinion, there is no substance in this argument. Paragraph 521(10)(c), shows that both condonation and insufficiency of evidence are contemplated under that rule. In either case, there may be a discharge without considering the same as a disciplinary action. It is true that in the Patna case it was a question of condonation, and in this case it is the question of insufficient evidence, but the results are the same. In other words, in both cases the authorities have an option of passing an order of discharge, which would not be considered as disciplinary proceedings. In such a case, there is no stigma upon the delinquent, because the charges have not been conclusively proved, but at the same time the employee must be taken to be discharged from service because it was not thought beneficial to continue his employment. Since the discharge is not by way of disciplinary action, no appeal lies, and the authorities dealing with the appeal of the petitioner took the right attitude, although they went out of their way to consider the representations made. Mr. Dutta has also drawn my attention to a case Mohan Singh v. Patiala and East Punjab States Union Patiala, AIR 1954 Pepsu 136, That was a case of an. employee of the Bank of Patiala. It was held as a fact that the Bank of Patiala was owned and controlled by the State. Consequently there is nothing strange in the conclusion that Article 311 applies. In this case, however, we are concerned with the State Bank of India, which for the reasons stated above, cannot be considered to be a State undertaking. In my opinion, the bank authorities were under no compulsion to give a hearing to the petitioner. In this case a hearing was given, but a complete copy of the report was not made available. In view of the fact that the proceeding was not by way of a disciplinary action, this cannot be considered as a fatal defect. That being so, I must hold that the only point taken fails and this application should be dismissed.
12. Mr. Dutta has taken another point, namely, that even under the Sastry Award, notice or payment in lieu of notice for one month, was not in Order. It is not necessary for me to deal with that question, because if the payment in lieu of notice is not sufficient, the petitioner may demand his lawful dues in a proper action.
13. This application, however, fails and the Rule is discharged. Interim order, if any, is vacated. There will be no order as to costs.