High Court · 2012

(cid:28)3.1 I observe that Kanpith Branch, Surat was holding Webbly Scott .32 bore rev olver no.60696. On 15.02.1996, Shri A.K. Roy, placed a Note before the Competent Authority seeking permission to get the weapon transferred to his personal lice nse. While placing the note, he did not disclose the fact that the license was i n his personal name and not in the name of his official designation. Though the proposal put up by him was not in line with the Bank’s policy, the then Dy. Zona l Head approved the same. Thereafter, the weapon was transferred to the license of the Shri Roy.

3.2 The entry of Banks revolver in the personal gun license of the Shri Roy reads as follows :- (cid:28)Enclosed the description of one .32 bore revolver no.60696 Webbly Scott purchased from Branch Manager, Union Bank of India, Kanpith Branch, Surat City license no.191/676 vide C.P. Surat City letter no.LB/Hathiyas/ wastu /632/740, 836/96 dated 4/96 (cid:29). The said endorsement was very distressing as accor ding to it the revolver was purchased by the Shri Roy from the Branch Manager, U nion Bank of India, Kanpith Branch, which amounts to fraud on the part of the Sh ri Roy as the revolver was not sold to him.

3.3 Shri Roy was transferred from Ahmedabad to Bhopal in August 1999 and was relieved on 18.9.1999. On his transfer to Bhopal he was required to take immedi ate steps to return the weapon to the Bank. However, he preferred to deposit the revolver with a private Arms Dealer (cid:28)for oiling and servicing (cid:29) on 26.11.1999 ag ainst his personal name. He did not obtain the approval of the Competent Authori ty for depositing the weapon with the Arms Dealer. Shri Roy’s act of depositing the weapon with the Arms Dealer instead of returning it to the Bank clearly spel ls out his intention of not returning the weapon with the Bank.

3.4 The Security Department came to know about the facts of the case in July 2003. Thereafter, the Chief Manager (Security), Central Office, telephonically informed Shri Roy on 26.07.2003 to get the weapon transferred in the Bank’s name . In terms of letter no: SEC:BR:0316: 147 dated 27.07.2003 Shri Roy was advised by the Chief Manager (Security) to send the copy of the Safe Custody Receipt to Zonal Security Manager, Ahmedabad and to get the weapon transferred to any branc h in Ahmedabad City in consultation with the Zonal Security Manager, Ahmedabad. Shri Roy, thereafter, wrote a backdated letter as of 25.07.2003 to the Police Co mmissioner, Ahmedabad seeking permission to transfer the weapon in the Bank’s na me.

3.5 It is therefore evident that Shri Roy got the revolver transferred in hi s name by misguiding the Dy. Zonal Head with an ulterior motive. When he was tra nsferred from Ahmedabad to Bhopal, he should have deposited the weapon with Kanp ith branch. However, he preferred to deposit the same with the Arms Dealer. Duri ng the course of inquiry he could not give a satisfactory reply for this act. Th e weapon remained deposited with the Arms Dealer for almost 4 years. Had the Chi ef Security Advisory not been aware of the fact Shri Roy would have siphoned off the weapon. (cid:29) The appeal filed by the appellant having been dismissed by the departmen 5. tal appellate authority, the appellant approached this Court under Article 226 o f the Constitution. The learned Single Judge dismissed the writ petition holding tha 6. t till the Bank detected the fact of gun being deposited by the appellant with t he Bank Dealer on his transfer to Bhopal, the appellant did not inform the Bank authorities of this fact. Even if the Bank did not suffer any loss, the appellan t mis-utilized the confidence of the Bank by transferring the gun into his name and keeping the same in his possession for four years. The findings recorded by learned Single Judge is as under :- In the instant case, till the fact of possessing the gun by the (cid:28)24. petitioner without depositing the same to the Bank upon his transfer to Bhopal w as detected, which was long after four years, the petitioner apart from converti ng the licence to his name, also got to himself the gun as if the same was his p ersonal property. The question is not one of incurring any loss by the Bank but the same relates to the conduct of the petitioner, which on the face of it was u nbecoming of a Security Officer of the Bank. Admittedly, he misutilised the conf idence reposed on him, firstly, by transferring the gun into his name and therea fter keeping the same in his possession for long four years. (cid:29)

7. Learned counsel for the appellant submits that the appellant had already served for 22 years as Security Officer. He had earned promotions and at the re levant time he was posted as Senior Manager (Security). He did commit any act of dishonesty. On his transfer from Ahmedabad to Bhopal, he had to keep the weapon with the Gun Dealer, as per provisions of Section 21 of the Arms Act. The licen ce for the weapon was in his personal name for personal supervision. Licence bei ng for Gujrat, he could not carry the weapon to Bhopal. Neither he made any gain nor caused any loss to the Bank nor he concealed any facts. Location of the wea pon was not secret nor concealed in any manner. He had informed the Bank vide le tter dated 15.2.1996 (Annexure-K to the writ petition) that the revolver which w as in Safe Custody since 1949 should be transferred to his name as he had valid gun licence and the weapon had to be in his personal supervision. Since the revo lver was not being used since long, his personal supervision was necessary. This aspect is discussed by the Inquiry Officer. It is mentioned that the appellant got the approval for transferring the revolver for his personal use, though in l etter (Ext.14) he admitted that the gun licence should be issued by designation. In these circumstances, it was submitted that the charge alleged is merely tech nical. Under the provisions of the Arms Act, no person can carry a fire arm with out holding a licence [Section 3(1)]. Since the appellant, in course of his duti es, was required to personally supervise the gun, he had obtained a licence in h is name, after due intimation to the Bank. On his transfer from Ahmedabad, the w eapon was kept in the custody of the Gun Dealer. The appellant had not used the weapon for his personal use nor taken any other advantage. A letter dated 28.2.1 996 (Annexure-M) was written by the Manager of the Bank to the Police Commission er, Surat requesting for transfer of the revolver in favour of the appellant.

8. Learned counsel for the Bank supported the view taken by learned Single Judge that the appellant by converting the licence to his own name used the gun as if it was his personal property and, thus, misused the confidence reposed on him by the Bank which was a misconduct.

9. Question for consideration is whether the appellant committed any miscon duct and, if so, whether misconduct was merely technical in nature which did not justify dismissal from service.

10. We are conscious of the legal position that in the exercise of power of judicial review, this Court does not sit in appeal over the findings recorded by the Inquiry Officer or with the quantum of punishment imposed. At the same time , the Court is concerned to see whether any misconduct has been duly proved and whether penalty imposed is shockingly disproportionate to the said misconduct. [ State of Orissa and others -Vs.-Bidyabhushan Mahapatra, AIR 1963 SC 779 (CB); Un ion of India -Vs.- H.C. Goel, AIR 1964 SC 364(CB); Bongaigaon Refinery and Petro chemicals Ltd. Vs. Girish Chandra Sarma, AIR 2007 SC 2860; B.C. Chaturvedi Vs. U nion of India, (1995) 6 SCC 749; State of U.P. Vs. Jaikiran Singh, (2003) 9 SCC 228 and State of M.P. Vs. Hazarilal, (2008) 3 SCC 273]. From the facts narrated above, it is clear that objectionable act allege 11. d against the appellant is that he got the licence of the gun transferred to his own name and kept the weapon with the gun dealer without informing the Bank. In these circumstances, the said act can at best be termed as technical irregulari ty.

12. Admittedly, the appellant was transferred from Ahmedabad to Bhopal in Se ptember, 1999. The licence was valid upto 31.12.1999. The appellant deposited th e gun with the Gun Dealer at Ahmedabad on 26.11.1999 while proceeding for his du ty at Bhopal. It is also clear from the records that the appellant had informed the Bank and the Bank authorities informed the police authorities that the gun l icence is to be transferred in the name of the appellant (letter dated 28.2.1996 , Annexure-M). The gun was not being held by the appellant without the knowledge of the Bank. He did not put it to personal use. Neither he made any gain nor ca used any loss to the Bank nor concealed anything. The gun was of the year 1948 a nd not in use. As per statutory requirement, the gun had to be kept with the pol ice authorities or with the gun dealer on expiration of the gun licence or when not in use, as per Section 21 of the Arms Act, 1959. The appellant was transfer red outside Gujrat and had no licence to carry the gun outside Gujrat. The Bank could have easily known this fact from the appellant.

13. Thus, the licence of the gun being in the name of the appellant with the consent of the Bank, it was his responsibility to deposit the same with the pol ice or with the Gun Dealer as the licence with him was valid only upto to 31.12. 1999. At best, it is a case of the appellant’s failure to inform the Bank about this fact. There is absolutely nothing to show that the appellant committed any dishonesty. As already noted, the Bank itself had informed the police that the l icence of the gun be transferred to the name of the appellant which has been ign ored by the disciplinary authority and the enquiry authority. Ignoring this vita l fact renders the report of enquiry officer and the order of the Bank perverse.

14. Learned counsel for the appellant fairly states that since he has alread y reached the age of superannuation on 16th March, 2012, only relief he prays fo r is that from the date of dismissal i.e. 23.12.2006, he may be deemed to have r etired so that he is not deprived of his pensionary benefits after having render ed 23 years of service.

15. In view of what we have found above, the misconduct, if any, is mere tec hnical. Neither the appellant has made any gain nor caused any loss to the Bank nor there is any deliberate act of concealment or misstatement. In these circums tances, the punishment of dismissal from service after rendering service for 23 years, is shockingly disproportionate. A person who completes his tenure of serv ice cannot be denied terminal benefits at the end of the day in absence of disho nesty or some serious misconduct.

16. Normally, we may have remitted the matter to disciplinary authority for passing a fresh order but in view of facts and circumstances mentioned above, pu nishment of dismissal cannot at all be justified. The appellant is not pressing for any more relief than converting order of dismissal to that of compulsory ret irement. Grant of such prayer in appropriate cases is not impermissible by this Court.

17. Accordingly, we allow this appeal and quash the order of dismissal and d irect that order of dismissal will stand modified to that of compulsory retireme nt from the date of dismissal. The appellant is entitled to all consequential be nefits from such modified punishment. The Bank may now pass a fresh formal order to this effect. The retirement benefits of the appellant be worked out and paid to him within three months from the date of receipt of this order.