Binay Kumar Choudhary v. The Bank of India

Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 Manager), Patna Zone & Appellate Authority, whereby, the appellate authority, on the order of remand passed by this Court in C.W.J.C. No. 1750 of 2004, has altered the punishment of removal from service by way of “Bringing down to two lower stages in the Scale of Pay for Charge No. 1 and having his 5 future increments stopped with cumulative effect for Charge No. II”. It has also been clarified and directed that the petitioner will not be entitled for any salary/allowance for the intervening period i.e. between the previous penalty order dated 22-09-2003 till the order of the Appellate Authority dated 31-05-2007. Short fact of the case is that the petitioner was departmentally proceeded for two serious charges. Charge No. I was that on 24-09-2001, while working as Cashier, one of the customer, namely; Sri Janardan Sah erroneously deposited an excess amount of Rs. 1,000/- (one thousand) in his account. This amount was neither deposited in his account nor reported to the Bank. The petitioner kept this amount for more than three months and same was refunded to the customer subsequently. Charge No. II was that on 3 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 08-12-2001, he entered twice in the cash payment book to vouchers of Rs. 3,000/- (three thousand) and Rs. 1,000/- (one thousand). At the end of the day while balancing cash with payment book, he found excess amount by Rs. 4,000/- (four thousand) and kept the same with himself. The said misappropriation was detected while balancing cash with payment scroll, however; subsequently, he rectified the said misappropriation by tendering a cheque of Rs. 4,000/-. On the aforesaid charges, he was departmentally proceeded and finally, the Disciplinary Authority, vide Annexure „8‟ to the writ petition, removed the petitioner from service by assigning detailed reasons. The order of removal was assailed by the petitioner before the Appellate Authority by filing an appeal, which was rejected and thereafter, he approached this Court by filing writ petition, vide C.W.J.C. No. 1750 of 2004. However, writ petition was disposed of and the matter was remitted back to the Appellate Authority to consider the quantum of punishment to the petitioner in its right perspective. After the matter was remitted back, the Appellate Authority, vide Annexure „12‟ 4 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 to the writ petition, has passed the order, which has been assailed in the present writ petition. Sri Anil Kumar Jha, learned senior counsel for the petitioner, while assailing the order, has argued that again the punishment order is disproportionate to the charges leveled against the petitioner. He further submits that order of punishment has been passed arbitrarily and as such, this Court, while exercising power of judicial review, can interfere with the order and set it aside. On this point, he has relied on a judgment of the Apex Court, reported in AIR 1984 SUPREME COURT 1182 (COMMISSIONER OF INCOME-TAX, BOMBAY AND OTHERS –VERSUS- MAHINDRA AND MAHINDRA LTD. AND OTHERS). He has specifically referred to paragraph no. 11 of the judgment, which is quoted here-in-below:

11. By now, the parameters of the review of judicial Court‟s power of administrative or executive action or decision and the grounds on which the Court can interfere with the same are well settled and it would be redundant to recapitulate the whole catena of decisions of this Court commencing from Barium Chemicals, 1966 Supp SCR 311 : (AIR 1967 SC 295) case on the point. Indisputably, it is a settled position that if the action or decision is perverse or is 5 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 such that no reasonable body of persons, properly informed, could come to, or has been arrived at by the authority misdirecting itself by adopting a wrong approach, or has been influenced by irrelevant or extraneous matters the Court would be justified in interfering with the same. This Court in one of its later decisions in Smt. Shalini Soni v. Union of India, (1981) 1 SCR 962 : (AIR 1981 SC 431), has observed thus : “It is an unwritten rule of the law, constitutional and administrative, that whenever a decision- making subjective statutory functionary, there is an implicit obligation to apply his mind to pertinent and proximate matters only, eschewing the irrelevant and the remote”. Suffice it to say that the following passage appearing at pages 285-86 in Prof. de Smith‟s treatise „Judicial Review (4th Edn.) of Administrative Action‟ succinctly summarises the several principles formulated by the Courts in that behalf thus : satisfaction of is entrusted function a “The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it : it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the 6 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories; failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, Thus, however, mutually fettered discretion may be because irrelevant considerations have been taken into account; and where an authority hands over its discretion to another body it acts ultra vires. Nor, is it possible to differentiate with precision the grounds of invalidity contained within each category.” exclusive. improperly He further submits that at second time, the punishment order, which has been imposed, is again disproportionate to the charges. He has argued that after the matter was remitted back, there was no reason for the Appellate Authority to impose three punishments. Two punishments for the charges, leveled against him and the third punishment, according to learned counsel for the petitioner, is that the petitioner has been debarred from claiming any salary or increment during the intervening period from the punishment order dated 22-09-2003 till the order dated 31-05-2007 passed by the Appellate Authority. 7 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 On this point, he has referred to a judgment of the Apex Court, reported in AIR 1987 SUPREME COURT 2386 (RANJIT THAKUR –VERSUS- UNION OF INDIA AND OTHERS). He has specifically referred to paragraph no. 9 of the judgment, which is quoted here-in-below:

9. Re : contention (d) : Judicial review generally speaking, is not directed against a decision, but is directed against the “decision making process.” The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 WLR 1174 (HL) Lord Deplock said: immune “……….Judicial Review has I think, developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call „illegality‟, the 8 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 „irrationality‟ second „procedural impropriety‟. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of recognised in the administrative law of several of our fellow members of the European Economic Community…….” „proportionality‟ which In Bhagat Ram v. State of Himachal Pradesh, AIR 1983 SC 454 (at p 460) this Court held : “It is equally true that the penalty imposed must be commensurate with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of Art. 14 of the Constitution.” The point to note and emphasise is that all powers have legal limits. In the present case the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. He has further relied on AIR 2005 SUPREME COURT 3417 (V. RAMANA –VERSUS- A.P.S.R.T.C. AND OTHERS). He further submits that since this Court on 15-01-2007 had quashed the order of punishment i.e. removal of the petitioner dated 22-09-2003, it will be deemed that there was no order of removal of the petitioner and as such, the petitioner was entitled to get all the admissible consequential benefits i.e. salary and increment 9 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 also. On aforesaid ground, it has been prayed to set aside the impugned order. Sri Suresh Prasad Singh, learned counsel for respondents/Bank has vehemently opposed the prayer of the petitioner. At the very outset, it was argued by learned counsel for the Bank that so far as charges are concerned, this Court had occasion to examine the same in C.W.J.C. No. 1750 of 2004 and after examining the matter in detail, this Court was satisfied that charges were proved against the petitioner. There was no error in the process of imposing punishments. Only on the ground of punishment of removal being disproportionate, this Court had set aside the order and remitted back the matter to the Appellate Authority and thereafter, the Appellate Authority, having examined the same and taking lenient view in the matter, has passed the order for re-instatement with punishment, as indicated in Annexure „12‟ to the writ petition. He has specifically referred to internal page 15 of Annexure „10‟ at running page 72 to show that this Court had not found any infirmity in the decision making process involved in the 10 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 case. Learned counsel for the Bank has further relied on a judgment of the Apex Court, reported in 2005 (1) SUPREME 427 (DAMOH PANNA SAGAR RURAL REGIONAL BANK –VERSUS- MUNNA LAL JAIN). He submits that almost in similar circumstances, the Supreme Court in a case of Bank employee had interfered with the order of the L.P.A. Court, whereby, the High Court had interfered with the order of punishment on the ground that same was disproportionate. He submits that the Apex Court had approved the removal from the service and particularly, the Supreme Court had noticed that in Bank service, standard of honesty and integrity of Bank employees is required to be noticed. He has specifically referred to paragraph no. 17 of the judgment, which is as follows: the customers. “17. A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the Every depositors and 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 integrity, honesty, devotion and utmost diligence and Good unbecoming of a Bank officer. conduct and discipline are inseparable from the functioning of every officer/employee of the Bank. As was observed by this Court in Authority-cum-Regional Disciplinary to do noting which 11 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 Manager v. Nikunja Bihari Patnaik (1996(9) SCC 69), it is no defence available to say that there was no loss or profit resulted in 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 Acting beyond one‟s allotted sphere. 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. These aspects do not appear to have been kept in view by the High Court.” It was submitted that keeping in view the charges, which have been established during departmental proceeding, the order of the Appellate Authority, which has been passed after remand by this Court, requires no interference. Besides hearing learned counsel for the parties, I have also perused the materials available on record. Keeping in view the fact that charges were serious in nature and same had already been established, which has also been approved by this Court in petitioner‟s earlier writ petition i.e. C.W.J.C. No. 1750 of 2004, the Court is of the opinion that subsequent order, which has been passed by the Appellate Authority, vide Annexure „12‟ to the writ petition, 12 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 cannot be categorized as disproportionate to the charges. So far as power of judicial review is concerned, it is not in dispute that while exercising power of judicial review, this Court is not required to examine the merit of the case. Only process of departmental proceeding is required to be examined as to whether there was any illegality or irregularity committed or not. In this case, once this Court has already exercised power of judicial review and only on the point of quantum of punishment, this Court had remitted back the matter to the Appellate Authority and thereafter, the Appellate Authority, by assigning detailed reasons, has already altered the punishment of removal to bringing down to two lower stages in the scale of pay and also for stoppage of his 5 future increments. Obviously, in view of the fact that charges, which have been proved against the petitioner, were serious in nature, subsequent order passed by the Appellate Authority cannot be considered as disproportionate. Since the order in this case is not disproportionate, there is no point to discuss the judgments, which have been referred above by learned 13 Patna High Court CWJC No.10144 of 2008 (5) dt.19-08-2013 counsel for the petitioner. So far as plea, which has been taken by the learned counsel for the petitioner that after the order of removal was set aside by this Court, it will be deemed that there was no order and the petitioner was entitled to salary and other benefits in between the punishment order dated 22-09-2003 till the order of the Appellate Authority dated 31-05-2007, the Court is of the opinion that during the intervening period, the petitioner has not worked and as such, principle of „No Pay For No Work‟ will apply and as such, the third part of the order appears to be only clarificatory in nature, not a punishment. I do not find any ground for interference with the order. The writ petition stands dismissed. Anay (Rakesh Kumar, J.)