Sudip Mandal vs Bangiya Gramin Vikas Bank & Ors.

“The petitioner complains of parallel proceedings being conducted with a criminal complaint and a departmental action in respect of the same alleged misconduct being pursued in tandem.

It does not appear that the criminal complaint filed by the employer has matured in any charge-sheet being filed yet.

Let this petition appear a week after the summer vacation.

The employer will cite this order before the investigating agency so that the investigation into the alleged offence is taken up with utmost expedition and that an appropriate report is filed before the relevant criminal court without undue delay.

The petitioner should file his reply to the charge-sheet by the time the matter appears next, but the inquiry proceedings should not be commenced without the leave of court.

This order is made since the criminal and departmental actions pertain to the same transaction or series of transactions.

The desirability of continuing both the sets of actions together will be considered on the returnable date.”

“Cause shown is sufficient. The order of dismissing the writ petition for default stands recalled.

The writ petition is restored to its original file and number

The application for restoration stands allowed. Put up the writ petition as ‘Motion’ in the Combined Monthly List of September, 2016."

“The petitioner complains of breach of the provision of Article 311(1) of the Constitution of India. Article 311 (1) of the Constitution of India reads as follows:-

No person who is a member of a civil service of the Union or an all India service or a civil service of a State or holds civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

The petitioner was appointed by the Chairman of the Bangiya Gramin Vikash Bank on 18th June, 2014.

Pursuant to a disciplinary proceeding initiated against him, the petitioner was removed from service by the order passed by the disciplinary authority and the General Manager on 30th December, 2016.

The appeal preferred by the petitioner before the Chairman stood rejected on 31st December, 2018.

The petitioner is aggrieved by the same.

The petitioner submits that as the petitioner was appointed by the Chairman who is a superior authority he could not have been removed from service by the order of the General Manager who is junior in rank.

The petitioner prays for setting aside the order of punishment imposed upon him.

The Bank submits that by a notification dated 12th August, 2013 published in the Gazette of India, Extraordinary on November 18, 2013, the Bangiya Gramin Vikash Bank (Officers and Employees) Service Regulations, 2010 was amended. By virtue of the amendment, the “competent authority” meant the Chairman in respect of officers in Scale 3, 4 and 5 and General Manager in respect of officers in Scale 1 and 2. As the petitioner is a Scale 1 officer, the General Manager is the competent authority in view of the 2013 amendment of the Regulation.

The order removing the petitioner from service appears to have been passed by an authority subordinate to the appointing authority. The same is impermissible.

In view of the above, the order passed by the disciplinary authority is bad in law and liable to be set aside. The same is accordingly, set aside.

The parties shall be at liberty to take steps strictly in accordance with law.

W.P 10285 (W) of 2019 is disposed of.

Urgent photostat certified copy of this order be supplied to the parties, if applied for, as early as possible.”

“1.

Mr. Mishra, learned Counsel for the appellants and Mr. Bhattacharyya, learned Counsel for the respondent no.1/writ petitioner are present.

2.

With the consent of the parties, the appeal and the connected application are taken up together and are finally heard.

3.

Learned Counsel for the appellant/Bank submits that as per the Bangiya Gramin Vikash Bank (Officers and Employees) Service Regulations, 2010, the writ petitioner’s services were terminated by the General Manager, who is the Competent Disciplinary Authority for inflicting such punishment against a Scale-I Officer. The learned Single Judge has assigned the following reason for interference in the impugned order of punishment:

“The order removing the petitioner from service appears to have been passed by an authority subordinate to the appointing authority. The same is impermissible.”

4.

Learned Counsel for the appellants advance singular contention and submits that the learned Single Judge appears to have drawn analogy from Article 311 of the Constitution of India and, therefore, came to hold that the removal of the writ petitioner by an Authority inferior to the appointing Authority is bad in law. However, the learned Single Judge has failed to consider the aspect whether Article 311 of the Constitution of India can be pressed into service for a Bangiya Gramin Vikash Bank employee who was not a civil post holder. Thus, the impugned order may be set aside and the writ petition may be restored to its original file and number.

5.

Learned Counsel for the other side supported the impugned order but could not point out anything from the impugned order which throws light about any discussion regarding applicability of Article 311 of the Constitution of India in relation to an Officer of Bangiya Gramin Vikash Bank.

6.

Thus, we find substance in the argument of learned Counsel for the appellant/Bank that the question of competence of the Disciplinary Authority needs to be looked into in sufficient detail.

7.

The impugned order dated 12th December, 2019 is set aside. The writ petition is restored to its original file and number. It will be open to the parties to raise all possible points while arguing the writ petition, keeping in view the writ petitioner is out of employment from December, 2016. We deem it proper to request the learned Single Judge to take up the matter at the earliest and decide in accordance with law.

8.

The appeal being FMA/1237/2021 and the connected application being IA No: CAN/2/2021 are accordingly disposed of.

9.

Urgent photostat certified copy of this order, if applied for, be made available to the parties upon compliance with all requisite formalities.”

i.

“The authorities while passing the impugned order of ‘removal from service’ of the petitioner, did not consider that such order was passed in violation of Article 311 of the Constitution of India i.e. by an officer who is inferior to the appointing authority of the petitioner; and

ii.

Such order was passed ignoring an order passed in the earlier writ petition at the behest of the petitioner where it was specifically directed that the inquiry proceedings should not be commenced without the leave of court. The inquiry proceeding was commenced and conducted without seeking such leave and therefore, the entire departmental proceeding and the impugned order passed therein, was a nullity.”

H. Your services as an Officer JMG Scale-I in the bank will be governed by the existing Bangiya Gramin Vikas Bank Officers and Employees Service Regulation, 2010 and also by such rules and regulations as may be introduced or amended from time to time. One of such rules is that every Officer JMG Scale-I is liable for transfer to any place or branch of the bank.

I. Notwithstanding anything contained hereinabove, you will be bound to abide by the instructions of the Competent Authority to be issued from time to time.

“311.

Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State.—(1) No person who is a member of a civil service of the Union or an all-India service or a civil service of a State or holds a civil post under the Union or a State shall be dismissed or removed by an authority subordinate to that by which he was appointed.

(2)

………………………………

(3)

……………………………….”

“10.

On the other hand, in State of Bihar v. Union of India [(1970) 1 SCC 67]. Hindustan Steel Limited was not held to be a “State” for purposes of Article 131. The question whether Hindustan Steel Limited was subject to the jurisdiction of the High Court under Articles 226 and 227 was left open. In dealing with the above conclusion, reference was made to the incorporation of Hindustan Steel Limited as an independent company and thus a distinct entity. In Praga Tools Corpn. v. C.V. Imanual [(1969) 1 SCC 585] it was pointed out that a company in which 88% of the capital was subscribed by the Union and the State Governments could not be regarded as equivalent to Government because being registered under the Companies Act it had a separate legal existence and could not be said to be either a Government Corporation or an industry run by or under the authority of the Union Government. Similar views were also expressed in the High Courts. In Lachmi v. Military Secretary to the Government of Bihar [AIR 1956 Pat 398] the expression “civil post under the Union or the State” was held to mean that the civil post must be in the control of the State and that it must be open to the State to abolish the post or regulate the conditions of service. Although the case concerned a Mali employed in Raj Bhavan, it was held that it was not a post under the State even though the funds of the State were made available for paying his salary. In a later case Subodh Ranjan Ghosh v. Sindhri Fertilisers and Chemicals Ltd. [AIR 1957 Pat 10] the employees of the Sindhri Fertilizers were held not entitled to the protection of Article 311. Our brother Ramaswami (then Chief Justice) noticed that the corporation was completely owned by the Union Government; that the Directors were to be appointed by the President of India who could also issue directions. He nevertheless held that in the eye of law the company was a separate entity and had a separate legal existence. In our judgment the decision in the Patna case is correct. It has also the support of a decision reported in Ram Babu Rathaur v. Divisional Manager, Life Insurance Corporation of India [AIR 1961 All 502] and another in Damodar Valley Corporation v. Provat Roy. [LX CWN 1023] Our brother Ramaswami relied in particular upon an English case Tamlin v. Hennaford [(1950) 1 KBD 18] . In that case it was held in relation to a business that although the minister was really incharge, the corporation was different from the Crown and the services of the corporation were not civil services. Justice P.B. Mukherjee of the Calcutta High Court, to whose judgment we referred earlier distinguished the English case by pointing out certain differences between the Corporation in that case and Hindustan Steel Limited. He pointed out that (a) in the English Corporation no shareholders were required to subscribe the capital or to have a voice in the affair, (b) the capital was raised by borrowing and not by issuance of shares, (c) the loss fell upon the consolidated fund and (d) the corporation was non-profit making. In our judgment these differences rather accentuate than diminish the applicability of the principle laid down in the English case to our case. The existence of shareholders, of capital raised by the issuance of shares, the lack of connection between the finances of the corporation and the consolidated fund of the Union rather make out a greater independent existence than that of the corporation in the English case. We must, therefore, hold that the corporation which is Hindustan Steel Limited in this case is not a department of the Government nor are the servants of it holding posts under the State. It has its independent existence and by law relating to Corporations it is distinct even from its members. In these circumstances, the appellant, who was an employee of Hindustan Steel Limited, does not answer the description of a holder of “a civil post under the Union” as stated in the Article. The appellant was not entitled to the protection of Article 311. The High Court was therefore right in not affording him the protection. The appeal fails and is dismissed but in the circumstances of the case we make no order about costs.”

“18.

In the case of Saranatha Ayyangar v. Muthiah Moopanar [AIR 1934 Mad 49 : ILR 57 Mad 308] it has been held that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of restoration says to the contrary. That as a matter of general rule on restoration of the suit dismissed for default, all interlocutory orders shall stand revived unless during the interregnum between the dismissal of the suit and restoration, there is any alienation in favour of a third party.

19.

A similar view has been taken by the Patna High Court in the case of Bankim Chandra v. Chandi Prasad [AIR 1956 Pat 271 : 1956 BLJR 454] in which it has been held that orders of stay pending disposal of the suit are ancillary orders and they are all meant to supplement the ultimate decision arrived at in the main suit and, therefore, when the suit, dismissed for default, is restored by the order of the court all ancillary orders passed in the suit shall revive, unless there is any other factor on record or in the order of dismissal to show to the contrary. This was also a matter under Order 39.

20.

In the case of Nandipati Rami Reddi v. Nandipati Padma Reddy [AIR 1978 AP 30: (1977) 2 APLJ 64] it has been held by the Division Bench of the Andhra Pradesh High Court that when the suit is restored, all interlocutory orders and their operation during the period between dismissal of the suit for default and restoration shall stand revived. That once the dismissal is set aside, the plaintiff must be restored to the position in which he was situated, when the court dismissed the suit for default. Therefore, it follows that interlocutory orders which have been passed before the dismissal would stand revived along with the suit when the dismissal is set aside and the suit is restored unless the court expressly or by implication excludes the operation of interlocutory orders passed during the period between dismissal of the suit and the restoration.

21.

In the case of Nancy John Lyndon v. Prabhati Lal Chowdhury [(1987) 4 SCC 78] it has been held that in view of Order 21 Rule 57 CPC it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. We repeat that this judgment was under Order 21 Rule 57 whose scheme is similar to Order 38 Rule 11 and Rule 11-A CPC and therefore, we cannot put all interlocutory orders on the same basis.”

“18.

In the backdrop of the above, observations of the Supreme Courtand the discussions on the facts indicated hereinabove, the only conclusion that one can reach in the instant case is that the interim order dated 28th October, 2016 confirmed until disposal of the writ petition on 24th April, 2017 stood revived upon the recall of the order of dismissal of the writ petition.”

“In the case of Manohar Lal (dead) by LRs vs. Ugrasen (dead) by LRs & Ors, reported in (2010) 11 SCC 557, the Apex Court relying upon its earlier decision in the case of Gurunath Manohar Pavaskar & Ors vs. Nagesh Siddappa Navalgund & Ors , reported in (2007) 13 SCC 565 held that any order passed by any authority in spite of the knowledge of the interim order of the Court is of no consequence as it remains a nullity and therefore the parties are to be brought back to the same position as if the order had not been violated. In other words, in such cases, restoration of the status quo ante is the appropriate relief to be granted.

As has already been held hereinbefore, the Government by issuing the impugned order without obtaining leave of the Tribunal despite clear orders to do so must therefore be held to have acted in violation thereof for which the impugned order has to be treated as a nullity in the eye of law and is therefore, held as such.

Consequently, the impugned order is set aside and the parties are restored to the position as existing prior to issuance of the impugned order. Further, the opposite party authorities are restrained from passing any final order in the disciplinary proceeding till finalization of the writ petition.”

“15.

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. As was observed by this Court in Disciplinary Authority-cum-Regional Manager v. Nikunja Bihari Patnaik [(1996) 9 SCC 69: 1996 SCC (L&S) 1194] , it is no defence available to say that there was no loss or profit which resulted in the case, when the officer/employee acted without authority. The very discipline of an organisation more particularly a bank is dependent upon each of its officers and officers acting and operating within their allotted sphere. Acting beyond one's authority is by itself a breach of discipline and is a misconduct. The charges against the employee were not casual in nature and were serious. That being so, the plea about absence of loss is also sans substance.”

“12.

To put it differently, unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigation it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed.”

“7.

It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.”

“19.

The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to reappreciate the evidence in exercise of its jurisdiction under Articles 226/227 of the Constitution of India.”