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PETITIONER: SURJIT GHOSH

       Vs.

RESPONDENT: CHAIRMAN & MANAGING DIRECTOR, UNITED COMMERCIAL BANK & ORS.

DATE OF JUDGMENT06/02/1995

BENCH: SAWANT, P.B. BENCH: SAWANT, P.B. FAIZAN UDDIN (J)

CITATION:  1995 AIR 1053            1995 SCC  (2) 474  JT 1995 (2)    74        1995 SCALE  (1)451

ACT:

HEADNOTE:

JUDGMENT: 1.   The  appellant was appointed as a Probationary  Officer in the respondent Bank on 4th October, 1971 and confirmed in that  post  on  24th February, 1973.  In  August  1975,  the appellant  was  charged for having demanded  and  taken  Rs. 1,900/  -  as  bribe  from one  Sk.   Rahul  Amin.  fie  was suspended  from service on 23rd August, 1975.  However,  the suspension  was  revoked with immediate  effect  by  another order  of  12th December, 1975.  Thereafter,  he  was  again placed  under  suspension  w.e.f 10th July,  1976  when  the Central Bureau of Investigation took up the investigation of the  case.   Prosecution was launched against  him  on  28th July,  1977 under Section 6 [1] (d) read with Section 5  [2] of  the  Prevention of Corruption Act,  1947.   The  learned Sessions  Judge  convicted him of the said  offence  by  his order  of  14th  July, 1978. , In  appeal,  the  High  Court reversed  the order of conviction and acquitted him  of  the charge by its order of 4th December, 1979. 2.   It  appears that in the meanwhile, the  Bank  dismissed the appellant from service by its order of 17th August, 1978 pursuant  to the order of the Session’s Court.  Against  the said  order,  the appellant approached the High Court  by  a writ  petition on 9th February, 1979.  On his  acquittal  by the  High Court on 4th December, 1979, the appellant by  his letter  of  11th  January,  1980  wrote  to  the  Bank   for reinstating him in service with retrospective effect but the Bank  did  not comply with his request.  However,  the  High Court  in the writ petition pending before it, by its  order of  25th  June 1980 set aside the order  of  dismissal  from service and directed the Bank to reinstate the appellant  in service with all consequential benefits. 3.   The  appellant  was reinstated in service  pursuant  to this order and was posted as Assistant Manager at the Hazari Road"’ Branch.  On 17th August, 1982, he was transferred  to Assistant  General  Manager’s  [AGM]  office,  West   Bengal Division-I  and  on 23rd August, 1982 he was served  with  a

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letter  alleging therein that on 14th August, 1982 while  he was working as Assistant Manager at the Hazari Road  Branch, he had prepared and singed one debit voucher for  Rs.4,800/- being the amount on account of "interest payable on  deposit FDR" mentioning therein the fixed deposit  No.223638/108/79. It  was  alleged  in  that letter  that  the  appellant  had obtained  a token against the said voucher by presenting  it to  the token clerk and had also verified the  signature  of the  FDR older on the reverse of this voucher, and  on  this voucher  being posted in the ledger of the ledger Clerk  and passed by the Pass ing Officer in good faith, the  appellant had  received  a cash amount of  Rs.4,800/against  the  said voucher etc. 4.   The appellant was also placed under suspension from the date  of the service of the said letter i.e.,  23rd  August, 1982  under  Regulation  12 [1] (a) and (b)  of  the  United Commercial   Bank   Officers   [Discipline   and    Appeals] Regulations,  1976 (the Regulations).  The departmental  in- quiry was thereafter held with the Manager of the branch  of the Bank as the Inquiry Officer to conduct the inquiry.  The Inquiry Officer by his report dated 28th May, 1985 held  the appellant guilty of two of the charges levelled against him. On  the basis of the said report, the respondent  No.2,  the Deputy General Manager, Zonal 77 Officer,  West  Bengal Zone of the Bank by his  order  dated 14th  November, 1985 dismissed the appellant  from  service. Aggrieved  by  the said order the appellant  approached  the High  Court by way of a writ petition.  The  learned  Single Judge of the High Court dismissed the same and the  Division Bench  in appeal confirmed the said order.  It is  aggrieved by  the decision of the High Court that the  present  appeal has been preferred. 5.   Some grievances have been made by the appellant in  the present appeal touching upon the illegalities in the conduct of  the  proceedings  such  as  that  [a]  the  disciplinary proceedings  were initiated by an  incompetent  disciplinary authority  in  breach of Regulation 8 [2]  (iii)  read  with Regulation  3 [g] of the Regulations; [b] the  statement  of witnesses  recorded  earlier  were not supplied  to  him  in breach of Regulation 8 [10] [b] (iii) and [c] he was  denied opportunity  to explain circumstances appearing against  him in  evidence   in breach of Regulation 6 [17] of  the  Regu- lations.  However, it is not necessary to go into the merits of the said grievances since we are of the view that one  of the objections taken by the appellant to the dismissal viz., that the appellant was deprived of an opportunity to  prefer an  appeal provided under-the Regulations, goes to the  root of  the dismissal order.  The undisputed facts  relating  to the   said   grievance  of  the  appellant  are   that   the disciplinary  action  was taken against him  by  the  Deputy General  Manager.   As  the  Regulations  stood  then,   the disciplinary authority for officers in Grades E, D, C and  B [excepting  Divisional  Managers in Grade B] was  the  Divi- sional Manager/AGM [Personnel] and the appeal against  their order lay to the Deputy General Manager or any other officer of  the same rank.  Against the order of the Deputy  General Manager,  the review lay to the General Manager.  It is  not disputed that the appellant was an officer in Grade D. Hence in  his case, as per the said Regulations, the  disciplinary authority  was  either  the Divisional Manager  or  the  AGM [Personnel]  and if the action was taken by either of  them, he  had  an  opportunity to appeal  to  the  Deputy  General Manager  or  any  other  officer  of  the  same  rank,   and thereafter  he had a further right of review to the  General

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Manager.  However, since the action against him was taken by the  Deputy General Manager although the Divisional  Manager and  AGM [Personnel] were available for taking  the  action, the appellant was denied the right of an appeal and also the right  of  a  review which lay only  against  the  appellate order.  The impugned order of dismissal passed by the  Bank, therefore, suffers from an inherent defect. 6.   The  respondent-Bank in its submission  contended  that although  it  is true that the Deputy  General  Manager  had acted  as  the disciplinary authority when he  was  in  fact named  under the Regulations as an appellate  authority,  no prejudice is caused to the appellant because the Deputy Gen- eral  Manager  is  higher  in  rank  than  the  disciplinary authority,  viz.,  the Divisional  Manager/AGM  [Personnel]. According to the Bank, it should be held that when the order of punishment is passed by a higher authority, no appeal  is available  under the Regulations as it is not  necessary  to provide  for the same.  It was also contended that there  is no right to appeal unless it is provided under the Rules  or Regulations.   Although  the argument  looks  attractive  at first sight, its weakness lies in the fact that it tries  to place the Rules/Regulations 78 which  provide no appeal on par with  the  Rules/Regulations where appeal is provided.  It is true that when an authority higher  than the disciplinary authority itself  imposes  the punishment,   the  order  of  punishment  suffers  from   no illegality  when  no appeal is provided to  such  authority. However, when an appeal is provided to the higher  authority concerned against the order of the disciplinary authority or of  a  lower authority and the higher  authority  passes  an order  of punishment, the employee concerned is deprived  of the  remedy of appeal which is a substantive right given  to him  by  the  Rules/Regulations.   An  employee  cannot   be deprived  of his substantive right.  What is  further,  when there  is  a provision of appeal against the  order  of  the disciplinary authority and when the appellate or the  higher authority against whose order there is no appeal,  exercises the powers of the disciplinary authority in a given case, it results  in discrimination against the  employee  concerned. This is particularly so when there are no guidelines In  the Rules/Regulations  as  to when the higher authority  or  the appellate  authority  should  exercise  the  powers  of  the disciplinary  authority.  The higher or appellate  authority may  choose  to  exercise  the  power  of  the  disciplinary authority  in some cases while not doing so in other  cases. In  such cases, the right of the employee depends  upon  the choice  of  the higher/ appellate authority  which  patently results in discrimination between an employee and  employee. Surely,  such a situation cannot savour of legality.   Hence we are of the view that the contention advanced on behalf of the respondent-Bank that when an appellate authority chooses to  exercise the power of disciplinary authority, it  should be held that there is no right of appeal provided under  the Regulations cannot be accepted. 7.   The  result,  therefore, is that the present  order  of dismissal suffers from an inherent defect and has to be  set aside. 8.   The  question,  however, is  what  consequential  order should  be  passed  in the present case.   It  will  not  be fruitful  to send the matter back to the Bank for  rehearing of the matter by the named disciplinary authority since  the appellate  authority  which  is  the  higher  authority  has already  taken  a decision in the matter and  it  cannot  be expected  that  the lower authority will  take  a  different

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decision.   These proceedings have been pending against  the appellant  right  from the year 1982 till this day  and  the appellant  has been out of employment for all  these  years. At  one stage, the appellant had offered to forego  all  the arrears of his salary provided he was reinstated in  service on the post to which he would be entitled at present on  the basis of his continuous service till date.  We had suggested to  Shri  Gupta appearing for the  respondent-Bank  to  take instructions  in the matter: The  respondent-Bank,  however, has  chosen  to reject the offer and has  instead  suggested that  the  Bank  would  like  to  pay  compensation  to  the appellant  since  it has lost confidence in  him.   We  have considered  the  charges against the appellant and  we  find that apart from the fact that much can be said in favour  of the  appellant in support of his contention that the  charge has  been  trumpeted against him.  The  inquiry  also  prima facie  suffers from defects as pointed out above, though  we must  add that we have not gone into the merits of the  said defects.   The  appellant is an ex-Army  officer.   What  is further,  the  compensation amount, if directed to  be  paid would come to about Rs.20 lakhs-. 79 The Bank is a nationalised Bank and the money belongs to the public.   A  huge  amount on this scale cannot  be  paid  to anyone  for  doing  no work during  this  long  period  just because  the Bank feels that it has lost confidence  in  the employee.  He can certainly be placed in a department  where he  has nothing to do with the monetary transactions of  the Bank, such as the establishment section etc., even  assuming that the Bank has reasons to lose confidence in him. 9.   We  are informed at the Bar that the post to  which  he would be entitled would be in Grade Scale IV with the  basic pay  of  Rs.5,350/-  per  month which is  on  par  with  the contemporary  existing  officers of the Bank who  have  been promoted to Grade Scale IV on and from 29th May, 1993.   We, therefore, direct as follows[a] the appellant should be paid a  compensation  of  Rs.50,000/- in lieu of  his  claim  for arrears  of salary; [b] he should be reinstated  in  service with continuity of service and without loss of seniority  in the post to which he would be entitled today on the basis of his  continuous service, within four weeks from the date  of receipt of this order. 10.   the  appeal  is allowed  accordingly.  Since  we  have directed  the  payment of compensation, there  will   be  no order as to costs. 80