M.N. Pavithran vs Central Bank of India

S. Padmanabhan, J.—Pavithran, the petitioner herein, joined the services of the Central Bank of India, as a clerk on 16th July, 1975, at its

Cannanoor branch. On 28th February, 1978, he was promoted as an Officer and posted as sub-Accountant. While so, the management of the

Bank served a memorandum, dated 27th March, 1980 informing the petitioner that it was proposed to hold a departmental enquiry under

Regulation 6 of the Central Bank of India Officer Employees (Discipline and Appeal) Regulation, 1976, for short, Officers Discipline Regulations.

The articles of charge related to certain acts of misconduct on the part of the petitioner while he was working as a clerk. The petitioner submitted

his explanation. Among others he took the objection that the enquiry could not be held under the Officers Discipline Regulation, since the acts of

misconduct related to the period when he was working as a clerk. During the enquiry that was held on 12th March, 1981, the petitioner raised this

ground as a preliminary objection which was negatived by the Enquiry Officer. The petitioner has therefore filed the writ petition for the issue of a

writ of mandamus for bearing the respondents from proceeding with the enquiry in accordance with the Central Bank of India Officer Employees

(Discipline and Appeal) Regulation, 1976.

There is no dispute that the article of charge against the petitioner relates to acts of misconduct committed by him while he was acting as a clerk.

The short submission of Mr. Somayajee on behalf of the petitioner was that the enquiry should not be proceeded with under the provision of

Officers Discipline and Regulations. The act of misconduct for which a charge sheet has been framed against the petitioner related to the period

when the latter was employed as a clerk. A clerk comes under the category of the award staff. The award staff are governed by what is called the

bipartite settlement between Indian Bank''s Association and All India Bank Employees'' Association. Chapter 19 of the said bipartite settlement

deals with disciplinary action and procedure therefor. Paragraphs 19, 12 of the said chapter deals with the procedure to be followed when it is

decided to take disciplinary action against an employee. The Management of the Bank is bound to follow this procedure and not the Officers

Discipline Regulation which clearly states that it applies only to an officer employee as defined under the Regulation.

On the other hand, Mr. Vijayakumar for the Central Bank of India, contended that at the time the enquiry proceedings commenced against the

petitioner, he was an Officer and that he could only be proceeded against under the Officers Discipline Regulation, even though the enquiry

proceedings relate to the misconduct committed by him while serving as a clerk. In other words, Mr. Vijayakumar contended that for the purpose

of the enquiry, the petitioner could not be deemed to be a clerk by a legal fiction and that the procedure contemplated under the bipartite

settlement for disciplinary proceedings could not be followed in the petitioner''s case.

Chapter 19 of the bipartite settlement, as already stated, deals with disciplinary action and procedure therefor. Paragraph 19.5 defines gross

misconduct. It contains as many as 12 items of misconduct. Paragraph 19.6 states that an employee found guilty of gross misconduct may (a) be

dismissed without notice; or (b) be warned or censured, or have an adverse remark entered against him; or (c) be fined, or (d) have his increment

stopper; or (e) have his misconducted condoned and be merely discharged. Paragraph 19.7 defines as minor misconduct and contains as may as

12 items. Paragraph 19.8 states that an employee found guilty of minor misconduct may (a) be warned or censured; or (b) have an adverse remark

entered against him; or (c) have his increment stopped for a period not longer than six months. Paragraph 19.9 states that a workman found guilty

of misconduct, whether gross or minor, shall not be given more than one punishment in respect of any charge. Paragraph 19.12 deals with the

procedure for the conduct of the enquiry. It enables an employee to be defended by a representative of a trade union of bank employees of which

he is a member on the date first notified for the commencement of the enquiry. Where he is not a member of any trade union of bank employees on

the aforesaid date, he is entitled to be represented by the registered trade union of employees of the bank in which he is employed or at the request

of the said union, by a representative of the State federation of All India Organisation to which such Union is affiliated or he can be represented by

a lawyer with the permission of the Bank. The said paragraph further provides that he shall also be given a hearing as regards the nature of the

proposed punishment in case any charge is established against him. In other words, he is entitled to be given a second opportunity to show cause

against the punishment to be inflicted on him, if the charge is established against him. Paragraph 19.12(c) provides that where sufficiently

extenuating circumstances exist, the misconduct may be condoned and in case such misconduct is of the type, he may be merely discharged with or

without notice or on payment of a month''s pay and allowance, 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 be deemed to amount to disciplinary action. Paragraph 19.12(d) provides for the payment

of allowance to a representative, depending on the employee, who is an employee of the same Bank at the outstation branch.

Central Bank Officer Employees (Conduct) Regulations 1976 applies to all officers employees of the bank. However, it shall not apply to

award staff. It prescribes a Code of conduct for the officer employees, in the matter of observance of secrecy, employment of members of family

or bank officers in firms enjoying the bank''s clientele and grant to facilities to such concerns, taking up outside employment, contribution to

newspapers, radio, etc., demonstrations, joining of associations prejudicial to interest of the country, giving evidence, public demonstrations in

honour of bank officers, seeking outside influence to bear upon any superior authority to further his interests, absence from duty, acceptance of

gifts, lendings and borrowings, advance drawal of salary, subscriptions, speculations in stocks and shares and investments, indebtedness,

movables, immovables and valuable property, resort to court for vindication of his acts, restrictions regarding marriage and consumption of

intoxicating drinks and drugs. The Officer Employees (Discipline and Appeal) Regulation deals with the procedure for disciplinary action. Minor

penalties provided are censure, withholding of increments of pay with or without cumulative effect; withholding of promotion and recovery from

pay of such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders.

Major penalties provide for reduction to a lower grade or post, or to a lower stage in a time scale, compulsory retirement, removal from service

which shall not be a disqualification for future employment and dismissal which shall ordinarily be a disqualification for future employment.

Regulation 6 provides for the procedure for imposing major penalties. Regulation 6(6) enables the disciplinary authority to appoint a public servant

to be known as the presenting officer to present on its behalf the case in support of the articles of charge. Regulation 6(7) enables the officer

employee to take the assistance of any other officer employee. He is not allowed to engage a legal practitioner for the purpose. Regulation 7(3)

provides that if the Disciplinary Authority is satisfied having regard to its findings that any of the major penalties should be imposed on the officer

employee, it shall make an order imposing such penalty. Regulation 8 deals with the procedure for imposing minor penalties. What is needed for

imposing minor penalties is to inform the officer employee concerned in writing of the imputations of lapses against him and give an opportunity to

submit his written statement of defence within a specified period, not exceeding 15 days or such extended period as may be granted by the

Disciplinary Authority. The defence statement, if any, submitted by the officer employee shall be taken into consideration by the Disciplinary

Authority in passing orders. If the Disciplinary Authority is satisfied that an enquiry is necessary, it shall follow the procedure for imposing major

penalty.

From the above, it can be seen that there is difference between the procedure prescribed for disciplinary action under the bipartite settlements

and due under the Officer Employees'' Regulation. Under the bipartite settlement an employee found guilty of gross misconduct apart from being

dismissed, may be warned or censured or an adverse remark being entered against him or be fined or his increments being stopped or his

misconduct being condoned and merely discharged. Under the Offers Employees Regulation, a warning or censure or a fine or stoppage of

increment or condonation of misconduct is not contemplated. Minor penalties prescribed for minor misconduct under the bipartite settlement are

warning or censure or an adverse remark being entered against the delinquent employee or stoppage of increment for a period not longer than six

months. On the other hand, in the case of an officer employee, the minor penalties prescribed apart from censure are withholding of increments of

pay with or without cumulative effect but limited to any period, withholding the promotion and recovery from pay or such other amount as may be

due to him of the whole or part of any pecuniary loss caused to the Bank by negligence of breach of orders. Thus both minor and major penalties

contemplated under the Officer Employee Regulations are more severe than the penalties contemplated under the bipartite settlement. Further,

there is no differentiation of gross misconduct and minor misconduct in the Officer Employee Regulation as in the case of bipartite settlement. Then

again, there is a restriction in the bipartite settlement that workman found guilty of misconduct, gross or minor, shall not be given more than one

punishment in respect of any one charge which is not found in the Officer Employees'' Regulation. Under the bipartite settlement, the employee is

entitled to engage a lawyer to represent him in the enquiry with the permission of the bank. In the case of officer employee, it is open to the

Disciplinary Authority to appoint a public servant as the presenting officer to present on its behalf the case in support of the articles of charge. On

the other hand, the officer employee is only allowed to take the assistance of any other officer employee and is not allowed to engage a legal

practitioner. Finally, under the bipartite settlement, the employee is entitled to have a hearing as regards the nature of the proposed punishment in

case any charge is established against him which right is not available to an officer employee.

It is the light of the above provisions regarding disciplinary proceedings found both in the bipartite settlement and the Officer Employee

Regulation that the question of the procedure to be followed has to be considered. As already stated, the article of charges framed against the

petitioner relates to acts of misconduct committed by him while he was employed as a clerk and at the time when he was governed by the bipartite

settlement. If the proceedings had been initiated then and there, the Bank would have been obliged to follow the procedure laid down under the

bipartite settlement. In my opinion, the provisions regarding disciplinary proceedings contained in the bipartite settlement are more favourable to the

employees than the provisions contained in the Officer Employee'' Regulation. The absence of a definition between gross misconduct and minor

misconduct in the Officer Employees'' Regulation, the differentiation between the nature of major and minor penalties in the Officer Employees''

Regulation and bipartite settlement and the absence of a second opportunity being given as regards the punishment to be imposed in the Officer

Employees'' Regulation, cannot be said to form part of procedural law. On the other hand, they are very valuable rights conferred on an award

staff under the bipartite settlement. Under the bipartite settlement, the reasonable opportunity envisaged to a delinquent employee includes (a) an

opportunity to deny his guilt and establish his innocence, which he can only do if he is told what the charges against him are and the allegations on

which such charges are based; (b) an opportunity to defend himself by cross-examining the witnesses produced against him and by examining

himself or any other witnesses in support of his defence and finally (c) an opportunity to make his representation as to why the proposed

punishment should not be inflicted on him, which he can only do if the competent authority after the enquiry is over and after applying his mind to

the gravity or otherwise of the charges proved against the workman tentatively proposes to inflict one of the punishments and communicates the

same to him. This is a very valuable protection given to an award staff, which protection is not found to be given under the Officer Employees''

Regulation. Further, the question whether the articles of charge framed against the petitioner and if found to be proved against him, fall within the

category of gross misconduct or minor misconduct will depend upon the date on which the misconduct was committed and can only be tested in

the light of the provisions in the bipartite settlement, as, on the date of the alleged commission of offence, the petition, was governed only by the

provisions of the bipartite settlements. Similarly, the right to be represented by a lawyer with the permission of the Bank which is conferred under

the bipartite settlement is a very valuable right. That would have been available to the petitioner if the disciplinary proceedings had been initiated at

the time when the alleged misconduct was committed. Taking all these circumstances into consideration, I am of the view that the procedure to be

adopted in the case of the petitioner is the procedure prescribed under the bipartite settlement and not the procedure prescribed under the Officer

Employees'' Regulation.

Mr. Somayajee, learned counsel for the petitioner brought to my notice the decision of the Andhra Pradesh High Court, which takes a different

view on the question, R. Marakaiyah v. Tribunal for Disciplinary Proceedings, Government of Andhra Pradesh, AIR 1962 A.P. 303, agree with

the learned counsel that that decision does not give any reasons for the conclusion which it has arrived. I must therefore express my respectful

dissent from the ratio of the said decision. I therefore hold that the respondents have to follow only the procedure prescribed under the bipartite

settlement against the petitioner in the instant case where the enquiry is admittedly into charges of misconduct committed by him when he was

governed by the provisions of bipartite settlement. I therefore, allow the writ petition.

There will, however, be no order as to costs.