Guwahati High Court
Case Details
WP(C) 2423/2006 BEFORE HON’BLE MR. JUSTICE A.K. GOSWAMI Heard Mr. P.K. Roychoudhury, learned counsel for the petitioner. None appears fo r the respondent Bank. By this writ application under Article 226 of the Constitution of India, the pet itioner seeks to challenge the order dated 03.05.2006, by which the petitioner w as imposed with penalty as indicated therein after withdrawal of the earlier pen alty of termination of service, pursuant to the order of this Court dated 15.02. 2006 in W.P.(C) No. 5990/2004. Order dated 03.05.2006 reads as under: (cid:28)In pursuance to the order of the Hon’ble Guwahati High Court in the case No. 59 90/04, the Management of the Bank decided to withdraw the ultimate Penalty of te rmination of service of Sri Hemendra Nath Thakuria the then Assistant Cashier wi th the punishment imposed as shown under. (a) He is allowed to join in service in compliance to the order as stated ab ove at the initial stage of the Pay Scale in the post of Assistant/Assistant Cas hier i.e. Rs. 4700 - 120 - 5240 - 165 - 7220 - 210 - 9110 - 260 - 11190 - 325 - 11515/- pm plus other allowances as admissible. (b) The period of suspension shall be limited to the subsistence allowance, already drawn by him and this period from the date of termination from service t ill the date of joining shall be treated as not in service and his seniority sha ll not be counted and he shall not be entitled to get any salary and allowances for the period stated above in the line of policy (cid:28)No Work, No Pay. (cid:29) He is further warned to be cautioned in discharging the duties allotted (c) to him time to time and to refrain himself from activities detrimental to the ba nking business and over all health of the Bank failing which necessary action sh all be taken against him by the Management of the Bank as deem fit and proper. (d) rder, otherwise the order will be treated as cancelled. (cid:29) In the light of submission of Mr. Choudhury, having regard to the issue that has fallen for consideration, a detail narration of facts, is not considered necess ary. Suffice it to say that the petitioner, who is an employee of the Gauhati Co -operative Urban Bank Limited, while working in the capacity as an Assistant Cas hier was subjected to a disciplinary proceeding and after a full-fledged enquiry , the Executive Committee of the Bank, on perusal of the records of disciplinary He has to join in service within 15 (fifteen) day from receipt of this o proceeding, took the following resolution in its meeting dated 24.01.2003: His three annual increments in future be stopped with effect from 01.01.
Legal Reasoning
Shri Hemendra Nath Thakuria, Assistant Cashier be reinstated in service (cid:28)i) with immediate effect. ii) 2003 as a measure of punishment for the misconduct committed by him. Before resuming his duties, Shri Thakuria shall have to give an undertak iii) ing stating that he shall always be obedient, faithful, shall not do anything wh ich is detrimental to the interest of the Bank, abide by the orders of his super iors, co-operate with all his colleagues, senior officers, members of the Board of Directors/Executive Committee, not divulge any secrecy of the Bank, not obstr uct any employee of the Bank who are willing to work at any stage whatsoever. However, Shri Thakuria will get nothing except the subsistence allowance that he has already drawn during the period of his suspension. (cid:29) Thereafter, in terms of the said resolutions, order dated 30.01.2003 was issued imposing penalty upon the petitioner. By a letter dated 28.02.2003, the petitioner prayed for cancellation of the orde r dated 30.01.2003 and demanded that he be allowed to join unconditionally, mean ing thereby, he be absolved of giving the undertaking in terms of the resolution no. (iii) aforesaid. By a letter dated 26.04.2003, the General Manager of the B ank asked the petitioner to report for duty on or before 03.05.2003 in terms of the order dated 30.01.2003, failing which, it was indicated that further accommo dation of the petitioner with the Bank will cease. The petitioner having not joi ned within the stipulated date i.e. 03.05.2003, an order of termination dated 09 .05.2003 was issued. Both the orders dated 30.01.2003 and 09.05.2003 were the subject matter of chall enge in the writ petition about which it has already been alluded to. The said w rit petition was disposed of by a Judgment and Order dated 15.02.2006 interferin g with the order of termination dated 09.05.2003 and requiring the Bank to pass appropriate orders imposing penalty. Mr. P.K. Roychoudhury, learned counsel for the petitioner submits that this Cour t, in the earlier record of litigation, specifically directed the respondent Ban k to impose minor penalty and in that view of the matter, imposing of major pena lty by the order dated 03.05.2006 is, ex-facie, illegal and arbitrary and being in contradiction to the order passed by this Court, necessarily, has to be inter fered with. The learned counsel submits that when the High Court had expressed that minor pe nalty was required to be imposed, the Bank authorities could not have defied the mandate of this Court and unilaterally taken recourse to pass the impugned orde r imposing major penalty. During the course of his argument, the learned counsel has drawn my attention to the Judgment and Order dated 15.02.2006 with special emphasis on paragraphs 11 and 12. The challenge, in view of the articulation of Mr. Roychoudhury, lies on a narrow campus. This Court is now only required to see whether the order passed by the respondent Bank could be said to be in contravention of this Court’s Order dated 15.02.2006. The court as stated above, is not interfering the minor penalty imposed For better appreciation, paragraphs 11 and 12 are re-produced herein below: (cid:28)11. to the petitioner under the resolution of the Executive Committee in its meeting held on 24.1.2003 inasmuch as this court is also of the considered view that th e minor penalty imposed under the resolution of the Executive Committee meeting held on 24.1.2003 would be the punishment appropriate for the charge levelled ag ainst the petitioner. But because of the failure of the petitioner to report for duty with minor penalty on or before 3.5.2003, this court by applying the princ iple of judicial review on the quantum of punishment on the basis of (cid:28)proportion ality (cid:29) enunciated by the Apex Court in the cases discussed above and also by app lying the Wednesbury Test is of the considered view that the ultimate penalty of termination of service imposed to the petitioner under the impugned order dated 9.5.2003 is too harsh and shockingly disproportionate.
Decision
12. For the reasons discussed above, the impugned order dated 9.5.2003 is qu ashed for the limited purpose of allowing the respondents 4 and 5 to re-consider the ultimate penalty of termination of service imposed to the petitioner for th e purpose of imposing any penalty other than termination of service to the petit ioner. The writ petition is allowed to the extent mentioned above. Parties have to bear their own costs. (cid:29) On a reading of the aforesaid two paragraphs, which are the sheet-anchors and fo undation of the argument advanced by Mr. Roychoudhury, I am unable to subscribe the view that Mr. Roychoudhury would like this Court to take. I find no merit in his contention. The import and purport of the order is made very clear in the o perative portion of paragraph 12, wherein this Court directed the respondent Nos . 4 and 5 to re-consider the ultimate penalty of termination of service by impos ing any penalty other than termination of service upon the petitioner. This Cour t did not say that respondents could only impose minor penalty. It is clear that this Court left the matter to the discretion of the respondent Bank with the ob servation that it would be permissible to impose any penalty other than terminat ion of service. If that be so, no fault can be attributed to the respondent authorities for pass ing the impugned order dated 09.05.2003 imposing penalty as indicated therein. In view of the above discussion, I find no merit in this application and accordi ngly, the writ petition is dismissed. No cost.