High Court
Case Details
WP(C) 588/2003 BEFORE THE HON’BLE MR JUSTICE UJJAL BHUYAN heard Mr. D. Chakraborty, learned counsel for the respondents.
Legal Reasoning
Heard Mr. D. K. Sarma, learned counsel for the petitioner. Also 2. By way of this writ petition under Article 226 of the Constituti on of India, petitioner has challenged order dated 06.01.2003, whereby and where under the penalty of being degraded to clerical grade w.e.f. 06.01.2003 was impo sed on the petitioner. Case of the petitioner is that following a recruitment process, 3. he was appointed as Officer of Pragjyotish Gaonlia Bank (Bank) [now Assam Gramin Vikas Bank] by order dated 07.10.1985. While he was serving as Officer of Patac harkuchi branch of the Bank, by an order dated 08.04.2000 issued by the Chairman of the Bank, petitioner was placed under suspension with immediate effect. Ther eafter, charge sheet dated 08.12.2000 was issued to the petitioner levelling 5 a rticles of charge against the petitioner relating to commission of irregularitie s while discharging his duties and also misappropriation in the accounts of cert ain customers. Petitioner was charged with gross negligence and misconduct. 4. Though the petitioner submitted his show cause reply, the same w as not found satisfactory and the Bank decided to hold an enquiry into the charg es brought against the petitioner. 5. After conclusion of the enquiry, petitioner was informed by the Chairman of the Bank vide letter dated 06.01.2003 that the Bank had decided to r einstate him in service in the initial stage of clerical grade. On the same day, formal order dated 06.01.2003 was issued and suspension of the petitioner was r evoked by the Chairman of the Bank, while imposing the penalty of degrading the petitioner to clerical grade w.e.f. 06.01.2003, further stating that no other be nefit would be admissible to the petitioner during the period of suspension save Petitioner was a and except what has been paid as subsistence allowance. dvised to resume his duties as Clerk-cum-Cashier at the Head office. 6. Though the petitioner had filed an appeal before the Board of Di rectors on 10.01.2003 against the penalty imposed, no decision was taken thereon which compelled the petitioner to move this Court by way of the present writ pe tition.
Decision
7. This Court by order dated 07.02.2003 had admitted the writ petit ion and issued notice on the interim prayer with the observation that pendency o f the writ petition would not be a bar to consider and dispose of the appeal fil ed by the petitioner. By subsequent order dated 21.03.2003, the operation of the impugned order dated 06.01.2003 was suspended. 8. Mr. Sarma, learned counsel for the petitioner assails the legali ty and validity of the impugned order dated 06.01.2003 on the following grounds: - Copy of enquiry report was not furnished to the petitioner and without g 1) iving any opportunity to the petitioner to represent against the findings of the enquiry officer, impugned punishment was imposed; 2) Since the petitioner was appointed in the Officer grade in the Bank, he could not have been degraded to a rank lower than the one in which he had entere d service. 9. Petitioner has stated in paragraph-12 of the writ petition that a copy of enquiry report was not supplied to him. In paragraph-13 of the writ pe tition, he has stated that his initial appointment was in the grade of Officer a nd, therefore, he could not have been reverted to a lower grade than the grade t o which he was initially recruited. 10. The above averments of the petitioner made on oath have remained uncontroverted and no affidavit has been filed by the respondents till date. 11. Though non-furnishing of the enquiry report by itself may not be sufficient to interfere with an order of penalty because of the subsequent deve lopment of the law, the fact remains that in the absence of the enquiry report, petitioner had no occasion to put forward or to represent his version on the fin dings recorded by the enquiry officer and to that extent, petitioner was prejudi ced and imposition of the penalty therefore took him by surprise. 12. In the circumstances of the case, the Court is of the view that non-furnishing of enquiry report to the petitioner has caused prejudice to him, which has vitiated the impugned order. Though in such circumstances, ordinarily the Court would have re 13. manded the matter back to the disciplinary authority for proceeding with the dep artmental proceeding from the stage of furnishing of enquiry report to the petit ioner, considering the fact that 10 years have passed by since filing of the wri t petition, recourse to the aforesaid course of action would not be proper at th is distant point of time. 14. In support of the second submission, learned counsel for the pet itioner has placed reliance on a decision of the Apex Court in the case of P. V. Srinivasa Sastry & Ors. Vs. Comptroller and Auditor General & Ors. (reported in AIR 1993 SC 1321). Mr. D. Chakraborty, learned counsel for the respondents submits 15. that misconduct of the petitioner was proved which called for imposition of a ma jor penalty. However, the Bank taking a humanitarian approach, imposed a lesser penalty. 16. Deliberating on the penalty of reduction in rank appearing in Ar ticle 311 (2) of the Constitution of India, the Apex Court in the case of P. V. Srinivasa Sastry (supra) held as under:- (cid:28)8. The expression (cid:28)reduction in rank (cid:29) in Article 311(2) has an obvious reference to different grades in service. Whenever there is a reduction in rank it implies reversion from a higher posts to a lower post. Reversion from a highe r post to a lower post may be under exigencies of situation or by way of punishm ent. The expression (cid:28)reduction in rank (cid:29) occurring in Article 311(2) covers only such reversions which are by way of punishment. The expression (cid:28)reduction in ran k (cid:29), within the meaning of Article 311 (2) as the expression itself suggests, mea ns reduction from a higher to a lower rank or post. But whether in this process an officer can be reduced from a higher rank or a post to a rank to which he nev er belonged and to a post which he never held? If the power to reduce an officer by way of punishment to a rank which was never held by such officer is conceded , then a person directly appointed as Upper Division Clerk cannot only be revert ed to the post of Lower Division Clerk, but even to the post of a Peon; an Engin eer to the post of a Fitter, a Head-Master of a School to the post of an Account ant or Clerk in the said School. As such even while imposing the punishment of r eduction in rank, the order must have nexus with the post held by the delinquent officer concerned, from which he had been promoted to the post from which he is being reverted. If such an officer had not held that post or was not member of that cadre then he cannot be reverted to a lower cadre to which he did not belon g or to a lower rank which he did not hold at any stage. (cid:29) 17. It is clear that petitioner who had entered service in the grade of Officer could not have been degraded or (cid:28)reduced in rank (cid:29) by way of punishme nt to a grade lower than the one in which he had entered service. Petitioner was appointed as Officer in the Bank. Therefore, degrading him to clerical grade wo uld not be permissible. 18. In view of the above finding, learned counsel for the petitioner submits that petitioner should be paid his arrear salary for the period when th e petitioner was under suspension. Without expressing any opinion on the merit o f the contention, it is hereby provided that petitioner may submit a representat ion before the Bank authorities for payment of his arrear salary for the period under suspension, in which case, the Bank authority shall consider the same in a ccordance with law. 19. ated 06.01.2003 stands quashed. In view of above, writ petition stands allowed. Impugned order d