AKUMAR Writ Appeal No: 985 of 19981. Canara Bank v. R. Radhakrishnan

In the High Court of Judicature at MadrasDate : 07..09..2007Coram :The Hon'ble Mr. Justice S.J. MUKHOPADHAYAandThe Hon'ble Mr. Justice N. PAUL VASANTHAKUMAR Writ Appeal No: 985 of 19981. Canara Bank, rep. by its Dy. General Manager, Circle Office, Chennai.

The General Manager P.W. & 1, Canara Bank, Head Office, Bangalore.... Appellants-vs-R. Radhakrishnan, No: 34, North Mada Street, Madras – 600 034.... RespondentWrit appeal under clause 15 of Letters Patent Appeal against the orderpassed by a learned single Judge of this Court dated 18.06.1998 made inW.P. No: 4902 of 1989 – presented to this Court under Article 226 of the Constitution of India, to issue a Writ of Certiorari calling for therecords of the 2nd Respondent herein, and the 1st respondent inMC.DAC.66:37:88 and quashing the order dated 10.1.1989 of the secondrespondent dated 6.8.88 of the proceedings MC:DAC:11:11:37.For appellants : Mr. P.R. RamanFor respondent : No appearanceJ U D G M E N T(Judgment of the Court wasdelivered by S.J.Mukhopadhaya, J.)The appellant, Canara Bank (hereinafter referred to as Bank) haspreferred this appeal against the order dated 18th June, 1998 passed bylearned single Judge in W.P. No: 4902 of 1989 allowing the writ petitionin favour of the respondent. It appears that with regard to certainincidents, the respondent, a sub staff of the bank posted at PanapakkamBranch, Chennai, was suspended. A show cause notice was issued on 11th https://hcservices.ecourts.gov.in/hcservices/ November, 1987 and having found guilty of certain charges, the order ofpunishment was issued on 6th August, 1988 by the Deputy General Manager. For proper appreciation of the cause and the punishment as inflicted, itis desirable to quote the proceeding of the Deputy General Manager, Chennai, by his order dated 6th August, 1988 as hereunder :" MC:DAC:1111:E:37. Disciplinary Action Cell Circle Office, Madras.PROCEEDINGS OF THE DEPUTY GENERAL MANAGERSub: In the matter of alleged misconduct on the part of Sri. R. Radhakrishnan (28675), Sub-staff(u/s)Panapakkam Branch ; Ref : 1. Charge Sheet No: MC:DAC:160:E:37(CSW-07) dated 11.02.1988. 2. Findings of the Enquiry Officer dated 27.6.88.

Final Report of the Enquiry Officer dated 26.07.1988.***UPON AN ENQUIRY having been held into the matter, the EnquiryOfficer found Sri.R. Radhakrishnan (28675), Sub-staff (U/s)Panapakkam Branch guilty of the charges levelled against him andrecommended the punishment of :"WARNING" for Charge-II, as contemplated under Chapet XI Regulation 4 Clause (a) of Canara Bank Service Code :"STOPPAGE OF INCREMENT FOR A PERIOD OF "SIX MONTHS" for Charge-I,"STOPPAGE OF INCREMENT FOR A PERIOD OF "ONE YEAR" for Charge-III,"STOPPAGE OF INCREMENT FOR A PERIOD OF "SIX MONTHS" for Charge-IV, and"STOPPAGE OF INCREMENT FOR A PERIOD OF "SIX MONTHS" for Charge-V,as contemplated under Chapter XI Regulation 4 Clause (d) of CanaraBank Service Code ;AGREEING with the findings and recommendations of the EnquiryOfficer and taking all relevant factors into consideration, it ishereby ordered that the following punishments be and herebyimposed on Sri.R.Radhrakrishnan (28675), Sub-staff (u/s),Panapakkam Branch; https://hcservices.ecourts.gov.in/hcservices/ "STOPPAGE OF INCREMENT FOR A PERIOD OF "SIX MONTHS" for Charge-IV, and"STOPPAGE OF INCREMENT FOR A PERIOD OF "SIX MONTHS" for Charge-V,as contemplated under Chapter XI Regulation 4 Clauses (d) of Canara Bank Service Code.

The learned single Judge, after discussing the relevant provisionsof the regulations allowed the writ petition on the following grounds :(a) As per Regulation 11 before proposing a punishment, theauthority has to consider the gravity of mis-conduct, previousrecord of the employee, if any and any other aggravating orextenuating circumstances existing at the relevant time ; https://hcservices.ecourts.gov.in/hcservices/ (b) The Enquiry Officer though submitted a report runningto several pages, he had not considered the conditions prescribedin Regulation 11 before suggesting proper punishment for theproved charges ;(c) In the light of the specific provision viz. Regulation10 (1) coupled with Regulation 11, the conclusion of the EnquiryOfficer cannot said to be within regulation of the service code; (d) As per Regulation 8 (1), the General Manager was thecompetent disciplinary authority. But the punishment was imposedby the Deputy General Manager, an authority lower in rank thanthe disciplinary authority and pursuant to amended circular No;146/85 dated 16.4.1985, a Committee of Two General Managers, other than the General Manager Personnel Wing, or ExecutiveDirector or Managing Director have to act as appellate authority. But the appellate order was passed by the General Manager, Personnel Wing.

Counsel for the Bank produced the "Canara Bank Service Code" asamended upto 26th May 1972 as also 'Canara Bank Service Code' as amendedupto 1986. It was submitted that, the appeal was rightly determined bythe General Manager, Personnel Wing, who was the appellate authority asper the amended regulations viz. Regulation 20. Reliance was placed on aletter No: IRS:CNC-57:4060:BPR dated 21st August, 1998. From the saidletter it appears that the service code was printed in the year 1972 andafterwards, the said service code was reprinted with amendment in the year1986. In the meantime, the amendments effected. The appellate authoritywas the Executive Committee as per old Regulation 20 of the Canara BankService Code. It was later on modified and the "Chairman and ManagingDirector" was made the appellate authority vide circular No: 394/84.Again it was modified and a "Committee of Two General Managers" wasnotified as appellate authority vide circular No: 148/85, which wasnoticed by the learned single Judge and even those provisions have beenquoted in the judgement. However, it appears that subsequently theappellate authority was changed and the "General Manager, Personnel Wing"was again made the appellate authority, vide circular No: 378/86, whichhas been reflected in Canara Bank service code published in the year1986.

So far as the punishing authority is concerned, in the year 1972,under Regulation 8 (1) as amended upto 26th May, 1972, the General Managerwas the competent authority which was subsequently modified as shown in1986 publication and quoted herein :"8. (1) The Deputy General Manager of CircleOffice/International Division/Inspection Department/The AssistantGeneral Manager of Personnel Wing, Head Office, may enquire intoany misconduct on the part of an employee and impose on him anyof the punishments set out in Regulation 4 or Regulation 6 as thecase may be of this Chapter. " https://hcservices.ecourts.gov.in/hcservices/

It appears that the petitioner brought to the notice of thelearned Single Judge, the old regulation 8 (1) wherein the General Managerwas empowered to punish an employee. The amended regulation 8 (1), bywhich the Deputy General Manager was empowered to pass such an order, which was applicable in the present case, was not brought to the notice ofthe learned single Judge. So far as Regulation 11 is concerned, it dealswith the manner in which punishment can be awarded. It can be passed bythe competent authority taking into account the gravity of themisconduct., the previous records, etc. as evident from the saidregulation 11 and quoted here under :" 11. In awarding punishment under this Chapter, there shall betaken into account the gravity of the misconduct, the previousrecord, if any, of the employee and any other aggravating orextenuating circumstances which may exist. Where sufficientlyextenuating circumstances exist the misconduct may be condoned andin case such misconduct is of the gross type he may be merelydischarged with or without notice or on payment of a month's salaryand emoluments in lieu of notice. Such discharge may also be givenwhere the evidence is insufficient to sustain the charge but whereon grounds of expediency or other grounds it is deemed undesirableto retain the employee in question any longer in service of the Bank; the discharge in such a case shall not be deemed to amount todisciplinary action. "

In the present case, the order of punishment has been passed bythe Deputy General Manager taking into consideration the recommendationsof the Enquiry Officer. Thus, it will be evident that the order waspassed by the competent authority empowered under the amended regulationNo : 8 (1). So far as the appeal is concerned, it will be evident thatthe respondent employee was aware of the fact that Regulation 20 asamended in the year 1985 was further amended and shown in 1986publication. Only for the said reason, he preferred the appeal beforethe General Manager, Personnel Wing of the Bank and not before the TwoMember Committee of General Managers. Apart from the fact that the General Manager, Personnel Wing, is the competent authority under 1986 Regulations, the respondent employee having submitted such an appealbefore him, it was not open for him to assail the appellate order on theground that it was not passed by a Two Member Committee of GeneralManagers. If such submission is accepted then it is to be presumed thatthe respondent employee had not at all preferred an appeal before thecompetent authority i.e. two General Manager Committee and he cannotderive any advantage of the same.

Regulation 11 is an enabling provision for the disciplinaryauthority to decide as to what punishment could be inflicted. For thesaid purpose he is not only required to look into the gravity of the mis-conduct, but also the previous record. Further, on the basis of theprevious records if it appears that the charged employee is habitual tosuch mis-conducts, apart from the gravity of the charges as shown in theparticular proceedings, more harsh punishment can be imposed. Similarly, https://hcservices.ecourts.gov.in/hcservices/ if there is sufficient extenuating circumstances exist, it is open to theauthority to condone such mis-conduct.