.Y^^^^^^^^^-^^-l/^n^j^iT.^X/^Vv^^^-^^^^-^-^-^^^^-i/w 11-.. IN THE ®GHGOUBT OF WADH?A PEABBSH AT JABAITTJ ¥BIT PBTIT IOTT. TIO . ' ^ ^ /1337 Pe-fcitigaer .Sunil Kttaar Mukherjee . s/o late Shri B.D.Mukherjee Aged about 54 yeaTs. Hazlchal Blosk Ho.2, Bayalbaad Chowk, Bilaspur (M.P..)' i: Tersas ~t Bespondents sl. Beputy General.Maaager, ApDSllate Aa-thori-ky (tiisoipllnary) Sta'te Banfe of Indla, Regioaal Office. Baiour (M.P.) g, Beglonal Managsr, S'ta'ts Banfc 6f Indla Baipar ( M.P.) 3. Braaoh Maaager, Sta-te Bank ef Indla, Maia'Braasfa, : , :' . Bilaspar (ff.F.) Ij- <.! PSTJTIpH.USBffit AR'i'IGItE, 23e/22'?_OF_SHE ^OHSTI'miEaa OF INOIA i'. AF-f i—fv~ HIGH COURT OF CHHATTISGARH AT BIIA8PUR S.B. : HON'BLEMR.SATISHK.AGNmOTM.J. WMTPETniON N0.1790 OF 1997 Sunil Kumar Mukherjee versus Deputy General Manager and olfaers OKDER POSTFOR sr-7-: Sd/- Satish K. Agnihotri Judge I. ~'£l'\f\f\J i"- HIGH COURT OF CHHATTISGARH AT BIIASPUR S.B. : HON'BLE MR. SATISH K. AGNIHOTM. J. WRIT PETITION N0.1790 OF 1997 Petitioner Sunil Kumar MulAeijee Re.spondents versus Deputy General Manager and otiiers Present : Mr. M.L.Pastore, counsel for the petitioner. Mr. P.R.Patankar, counsel tbr respondents No.l and 2. Mr. Sanjay K. Agrawal and Mr. Saurabh Sharma, counsel for respondentNo.3. ORDER (Passedonlf -7-2006) The present petition filed under Article 226/227 ofthe Constitution ofltidia impugns the order dated 4-12-1996 (Annexure P-14), whereby mercy appeal dated 7-9-1995 of the petitioner was dismissed on the ground that in the light ofthe provisions ofSastry Award read with Desai Award and other Bi-partite settlements, which govem the service conditions of the employees in the Bank, there is no provision for any mercy appeal agaiast the order of the / \ L appellate aufhorily. The petitioner has furtfaer sought for consequentiaJ relief of reinstatement with other benefits from the date other delinquent Mr. P-D.Sharma was rrinstated ia service, 2. The undisputed facts m nutshell are fhat the petitioner, while workmg as Cashier aJong with one Mr. P.D.Sharma, was charge-sheeted for misappropriation ofthe amount deposited by the consrituents by crediting the same in their accounts. The total amount ofdefaJcation was Rs.26,580/-. A charge-sheet dated 21-4- 1982 was issued as per Annexure P-5. The charge-sheel, containing three charges, is quoted herein below:- "(i) While you were posted as officer-in-charge at our erstwhile Pamgarh sub-office, you had on a number of occasions either ofyour own or in collusion with Shri P.D. Sharma, Cashier-in-charge misappropriated amounts deposited by the constituents for credit of their accounts. A list of such misappropriation is given in Annexure-A. (ii) After aceepting the money from the constituents as referred to above either you did not credit the amounts or credited partially/subsequently to their respective accounts. (iii) You have also on a ttomber of occasions withdrawn/caused to be withdrawn money fi-om tiie accounts of the constituents by writing/tampering with the wifhdrawals for higher amounts then desired by Ihe constituents to benefit yourselves. "3 ]^, Proper enquiry was held and Ifae petitioner along with Mr. P.D.Shanna was found guilty ofmisappropriation ofamount and the charges above-stated were accordingly found proved. In accordaace with the eiiquiry, the petitioner and Mr. P.D.Shanna, by order dated 30-12-1986 (Annexure P-10), were dismissed from the services of the BaiA in tenns ofparagraph 521(5)(a) ofSastry Award read with Desai Award. 3. The petitioner preferred an appeal before the Chief Regional Manager (appellate authority ofthe respondent - Bank) on 2-3-1987 (Annexurc P-11) The appellate authonty, by a reasoned order, dismissed the appeal and the same was communicated to the petitioner by letter dated 27-8-1987. The other delinquent officer Mr. P.D.Shanna also preferred an appeal, which was allowed by order dated 11-7-1989 (Annexure P-12) on the "round ofttie fact, a.uoted below :- ",,,..b-aviug taken into consideration a11 the factors as well as having regard to 26 years' service put by the employee upto the date of dismissal and with a view to rehabilitating his family oa humanitarian grounds, as Shri Shamia has now attained such an age that he will fail to get a suitable job elsewhere, I feel tfaat there is a case for reconsideration of tfae punishment, imposed upon him, to the extent which will take care ofthe punitive aspect ofthe entire case as well as serve as deterrent punishment as deserved by Shri Sharma." <t- .-'"' L~t } /• ( b-r y 4. The petitioner did not challenge the order dated 10-7- 1987 passed by the appellate authority before High Court or any other superior Court, as such, that attained finality. The petitioner preferred a mercy appeal to the higher authorities, which was dismissed by order dated 4-12-1996 on the ground Ifast Ifaere was no provision for mercy appeal. 5. In the meantime, the petitioner filed a wnt petition before the High Court of Judicature at Jabalpur seeking disposal of his mercy appeal in Writ Petitioa No.4125/1996. The High Court of Judicature at Jabalpur, by order dated 3-10-1996 disposed of his petitioner with a directioa to consider and deeide the mercy appeal within a penod of two months (Annexure P-13). The present petition, impugning the order dated 4-12-1996 passed in mercy appeal, was filed on 22-4-1997. Leamed counsel in this petition impugns the order of mercy appeal on a simple ground that dismissal of mercy appeal amounts to discrimination as the other delinquent employee, who was charge-sheeted with the petitioner for the same offence and was dismissed from service along with the petitioner, was reinstated in service after his appeal was allowed by the appellate authority provided under provisioas of law. This is a case where the petitioner has not chosen to challenge the order passed in statutory appeal provided under provisions of law. The petitioner has impugned the order passed in mercy appeal, which $ !^ / was dismissed on tiie ground that fhere was no provision for mercy appeal under provisions of Sastry Award read with Desaj Award. The order passed in statutory synpeal bas attained finality, which remains unclia]]enged till date. The order passed in mercy appeal, which was not maintainable at all under provisions of Sastry Award read wifh Desaj Award cannot be challenged in this petition, as no legaJ right has accroed in favour offhe petitioner. 6. 8o far as discrimiiiation is concemed, that cannot be considered in this petition as the order dated 10-7-1987 passed by the appellate aufhority is not under challenge ajnd fhe mercy appeal, which is in question in this appeal, has been dismissed on the ground of noii-maintainability. The Hon'bJe Supreme Court in Y.P.Sarabhaiw.JUmon Bank of Indja and another, reported in f2006) 5 SCC377 (at para 9) has held as under ;- "This Court has repeatedly held that the factual finding of the disciplinary authority after holding a detailed enquiry and after going through elaborate evidence is not assailable in the courts unless tiie breach of principles of natural justice or the violation of any mles or any material irregularity on the face of record is alleged and shown. 7. This Court, in exereise ofitsjurisdictioii uader Arricle 226/227 of the Constitution of India, camiot direct an authority to consider and pass a reliefui favour ofthe petitioner, which is not permissible under provisions of law. The mercy appeal filed by the petitioner is .not maintainable under provisions of law and the petitioner has not challenged the order passed by the aypellate authority. Thus, 1his petition is devoid ofmerit and deserves to be dismissed, 8. For the reasons above-stated, Ifais petition is dismissed. No order as to costs. Sd/- Satish K. Agnihotri Judge CEopal