* THE HON'BLE MR JUSTICE RAMESH RANGANATHAN + WRIT PETITION NOs 29418 & 28763 of 1997 % 18-10-2005 W.P.No.29418 of 1997 # Y.Sangameswar Rao Petitioner Vs. $ State Bank of Hyderabad, Hyderabad and three others Respondent ! Counsel for the Petitioner: Mr.G.Ramachandra Rao ^ Counsel for respondents: Sri V.Jogayya Sarma < Gist: >Head Note ? 1AIR 1984 SC 505 2AIR 1985 SC 504 3 1985(2) LLJ 296 4 AIR 1992 SC 2188 5 AIR 1976 SC 2062 6 (1984) 3 SCC 316 7 (1995) 6 SCC 749 8 (1997) 3 SCC 387 9 (1995) 6 SCC 237 10 AIR 1966 SC 1678 11(1996) 3 SCC 364 12(1980) 4 SCC 379 13(1999) 6 SCC 237 14(2000) 7 SCC 529 15(1969) 3 SCC 372 16(1995) 4 SCC (Supp) 235 17AIR 1991 SC 2010 18 1998(2) LLJ 241 THE HON'BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION Nos 29418 and 28763 of 1997 COMMON JUDGMENT: Writ Petition No.29418 of 1997 is filed to quash the proceeding of the 3rd respondent dated 31-10-1992 confirmed, in appeal, by the order of the 2nd respondent dated 15/18.3.1993. The 3rd respondent, vide proceedings dated 31-10- 1992, had imposed stoppage of five increments forever on the petitioner and the appeal preferred by the petitioner was dismissed and the punishment imposed on him was confirmed. In W.P.28763 of 1997, the proceedings of the 2nd respondent, dated 21-5- 1997, whereby the petitioner was informed that the result of the sealed cover, containing the findings in respect of his suitability or otherwise for promotion to Officers’ Cadre in JMGS-I had been annulled consequent to the punishment, of stoppage of five increments forever, imposed on him vide disciplinary authority’s order dated 31-10-1992 and that the results of his promotion cannot be given effect to in terms of Clause VI of the sealed cover procedure prescribed in circular No.PER/71 of 1983 dated 7.9.1993, is impugned. Since the punishment imposed vide proceedings dated 31.10.1992, which forms the basis for his being denied promotion to the post of Officer JMGS-I, is challenged in W.P.No.29418 of 1997, it is this writ petition which shall be first be taken up for consideration. Facts, to the extent necessary for this writ petition, are that the petitioner was directly recruited as Cashier-cum-Clerk in the year 1982 by the Regional Recruitment Board of the State Bank of Hyderabad. He was initially appointed in the Dubbak Branch, Medak District, and successfully completed his probation. The 4th respondent, issued memo dated 30-9-1988, alleging that the petitioner had drawn salary upto 31-7-1982 from A.P.S.R.T.C., Kamareddy Depot although he had joined the service of the Bank on 1-7-1982 itself and had drawn salary thereafter from the State Bank of Hyderabad. It was also alleged that the petitioner had joined the Bank service without tendering his resignation to APSRTC. The petitioner submitted his explanation thereto on 25-10-1988. The 4th respondent issued another memo dated 16-1-1991, to which the petitioner is said to have submitted his explanation on 2-3- 1991. A charge sheet was issued to the petitioner on 10-6-1991 framing three charges for acts of misconduct alleged to have been committed by the petitioner while he was working as Cashier-cum-Clerk at Dubbak Branch, Medak District. It is the petitioner’s case that he was not furnished with a copy of the complaint based on which the charges were framed against him. An enquiry was ordered and proceedings were held on 11-11-1991, 5-12-1991, 24-12-1991 and 5-2-1992 to enquire into the charges levelled against the petitioner. During the enquiry, one witness Sri K.Srihari, Deputy Superintendent (Personnel), APSRTC, Kamareddy Depot was examined and four documents were marked as exhibits. In his defence, the petitioner’s statement was recorded. Petitioner contends that copies of documents, relied upon by the enquiry officer and marked as exhibits, were not furnished to him and that soon after the enquiry was completed the presenting Officer had submitted his brief and he had submitted his defence brief on 22-6-1992. The enquiry officer, in his report, held that the petitioner had accepted charge No.1, charge No.2 was partly established and charge No.3 was not established. On the basis of the enquiry report, wherein the petitioner was held guilty of the charges leveled against him, a show cause notice dated 22-9-1992 was issued proposing to impose penalty of stoppage of five increments forever and calling upon the petitioner to show cause against the proposed punishment. Petitioner submitted his reply to the show cause notice on 9-10-1992, consequent to which the impugned proceedings dated 31-10-1992 was issued imposing the punishment of stoppage of five increments forever. Sri G.Ramachandra Rao, learned counsel for the petitioner, would submit that the charges leveled against the petitioner do not amount to misconduct much less gross or minor misconduct within the meaning of paras 19.5 and 19.7 of the Bipartite Settlement. Learned counsel would submit that acts and omissions on the part of an employee, amounting to gross misconduct, are enumerated in para 19.5 of the Bipartite Settlement and that charges 1 and 2 levelled against the petitioner do not fall under any of the acts of misconduct enumerated in said paragraphs of the Bipartite Settlement. Learned counsel would contend that even if the petitioner had admitted charge No.1, charge No.2 could not be termed as a misconduct warranting disciplinary action and imposition of major penalty. Learned counsel would submit that the petitioner had not drawn any excess amount from the 1st respondent – bank or claimed any excess amount for the services rendered by him as a Cashier-cum- Clerk from 1-7-1982 and even if he had drawn any excess amount from the previous employer, it is only the previous employer that could have any grievance against him and not the respondent – bank. Learned counsel would contend that the respondent – bank is not empowered to take disciplinary action on the basis of allegations made against the petitioner under Charges No. 1 & 2 as they do not constitute misconduct, that the petitioner was denied reasonable opportunity of defending himself inasmuch the copy of the complaint or report on which the charges were based were not furnished to the petitioner, and that the letter dated 1-9-1982, issued by the Depot Manager of APSRTC, Kamareddy Depot, referred to in the proceedings dated 16-1- 1992, was not furnished to the petitioner despite his specific request that a copy thereof be furnished. Learned Counsel would also contend that, while the enquiry officer had relied on four documents in arriving at his findings, copies thereof were neither furnished to the petitioner nor were they shown to him before they were taken on record as exhibits. Failure to furnish copies of these documents is contended as violating principles of natural justice and that the punishment imposed, on the basis of the said charges and finding thereon, is vitiated. Learned Counsel would submit that the petitioner was prejudiced on account of the long delay in issuing the charge memo, nine years after the alleged incident which resulted in the petitioner not being able to defend himself effectively. Learned Counsel would also contend that the punishment of stoppage of five increments, imposed on the petitioner, is contrary to para 19.6 of the Bipartite Settlement and that the 3rd respondent has no power to withhold or stop increments forever having the effect of stoppage of increments during the rest of the petitioner’s service, that the petitioner cannot be severely penalized for failure to fill columns 16 and 17 of his application inasmuch as no loss was caused to the respondent – bank for the petitioner’s failure to do so, and that the punishment of stoppage of five increments forever is grossly disproportionate to the misconduct and is liable to be set aside. Learned counsel would place reliance on M/s Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut; Rasiklal Vaghajibai Patel v. Ahmedabad Municipal Corporation; and Natavarbhai S.Makwana v. Union of Bank of India in support of his submission that since the first charge is not enumerated as a misconduct, under the bipartite settlement, it is not open to the employer to fish out some conduct as misconduct and to punish the employee thereupon. Before examining the law laid down in judgments aforementioned, it is necessary to refer to the relevant provisions of the bipartite settlement. Para 19.5 defines “gross misconduct” and under para 19.6, an employee found guilty of such misconduct is liable to be imposed punishments referred to therein. The expression “minor misconduct” is enumerated in Para 19.7 of the bipartite settlement and under 19.8 an employee found guilty of minor misconduct is liable to be imposed punishment prescribed in the said para. Paras 19.5 to 19.8 read as under: 5. By the expression “gross misconduct” shall be meant any of the following acts and omissions on the part of an employee. a. engaging in any trade or business outside the scope of his duties except with the written permission of the bank; b. unauthorized disclosure of information regarding the affairs of the bank or any of its customers or any other person connected with the business of the bank which is confidential or the disclosure of which is likely to be prejudicial to the interests of the bank; c. drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank; d. willful damage or attempt to cause damage to the property of the bank or any of its customers; e. willful insubordination or disobedience of any lawful and reasonable order of the management or of a superior; f. habitual doing of any act which amounts to “minor misconduct” as defined below, “habitual” meaning a course of action taken or persisted in notwithstanding that at least on three previous occasions censure or warnings have been administered or an adverse remark has been entered against him; g. willful slowing down in performance of work; h. gambling or betting on the premises of the bank; i. speculation in stocks, shares, securities or any commodity whether on his account or that of any other persons; j. doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss; k. giving or taking a bribe or illegal gratification from a customer or an employee of the bank; l. abetment or instigation of any of the acts or omissions above-mentioned. 19.6. An employee found guilty of gross misconduct may: (a) be dismissed without notice; or (b) be warned or censured, or have an adverse remark entered against him; or (c) be fined; or (d) have his increment stopped; or (e) have his misconduct condoned and be merely discharged. 7. By the expression “minor Misconduct” shall be meant any of the following acts and omissions on the part of an employee: a. absence without leave or overstaying sanctioned leave without sufficient grounds; b. unpunctual or irregular attendance; c. neglect of work, negligence in performing duties; d. breach of any rule of business of the bank or instruction for the running of any department; e. committing nuisance on the premises of the bank; f. entering or leaving the premises of the bank except by an entrance provided for the purpose; g. attempt to collect or collecting money within the premises of the bank without the previous permission of the management or except as allowed by any rule or law for the time being in force; h. holding or attempting to hold or attending any meeting on the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force; i. canvassing for union membership or collection of union dues of subscriptions within the premises of the bank without the previous permission of the management or except in accordance with the provisions of any rule or law for the time being in force; j. failing to show proper consideration, courtesy or attention towards officers, customers or other employees of the bank, unseemly or unsatisfactory behaviour while on duty; k. marked disregard of ordinary requirements of decency and cleanliness in person or dress; l. incurring debts to an extent considered by the management as excessive. 19.8. An employee found guilty of minor misconduct may: (a) be warned or censured; or (b) have an adverse remark entered against him; or (c) have his is increment stopped for a period not longer than six months. “ To examine the question as to whether the charges leveled against the petitioner would constitute gross misconduct under Para 19.5 of the Bipartite Settlements it is necessary to refer to the Charges leveled against the petitioner, which are as under: “1. At the time of applying for the Bank Job, you did not fill up column No 16 & 17 despite a note ‘All columns must be filled in’ regarding particulars of employment and left them blank in the Bio-data form, submitted to the Regional Recruitment Board, State Bank Group, Hyderabad Circle on 16.01.1982. You suppressed the fact that you were employed in A.P.S.R.T.C., Kamareddy Depot as mechanic E 88053. 2. It is alleged that while working as cashier clerk at Dubbak branch from 01.07.1982 you drew the salary and allowances from the Bank for the month of July and August, 1982 although you were still on rolls with APSTRC, Kamareddy Depot, where you also drew the salary for July and August, 1982. 3. It is alleged that while working as Cashier-Clerk at our Dubbak branch during the period 23.07.1982 to 10.08.1982, you submitted a Medical Certificate/Application for sick leave to APSRTC for the period 23.07.1982 to 10.08.1982.” In so far as the first charge is concerned, it is not in dispute that the petitioner, in his bio data form submitted along with his application for appointment in the State Bank of Hyderabad, had left columns 16 & 17 blank and had thereby, suppressed the fact that he had earlier been employed as a Mechanic (E.88053) at APSRTC, Kamareddy Depot. While the aforesaid facts are not disputed, it is contended that this act of misconduct is not among those enumerated in para 19.5 and 19.7 of Bipartite settlement and as such no disciplinary action could have been initiated against the petitioner nor could he have been imposed the punishment of stoppage of five increments forever. With regards the second charge, the contention is that even if the charge is held to be proved, since the allegation is that the petitioner had drawn salary from APSRTC, it is for the APSRTC to take disciplinary action and not the respondent – bank herein. Now the judgments relied upon by Sri G.Ramachandra Rao, learned counsel for the petitioner. I n Glaxo Laboratories (1 supra), the charge related to certain striking workers manhandling those who intended to continue discharging their duties. The incident of manhandling was alleged to have taken place outside the factory premises. The Supreme Court held, that if the workman was involved in a riot or involved in fighting somewhere far away from the premises of the establishment, it had no casual connection with his performance of duty under the industrial establishment in which he was employed, since the provisions in the certified standing orders, enumerating acts of misconduct, are penal in nature they have to be construed strictly and not extended beyond their clear limit, and that the expression “committed within the premises of the establishment or in the vicinity thereof”, were words of limitation and had to be construed strictly. In Rasik Lal (2 supra), the employee while submitting his application to the post of Head Clerk in the Ahmedabad Municipal Corporation had, in his biodata form, stated that he had resigned from service of the Sales Tax Department due to transfer, when in fact, he had been removed from service for demanding illegal gratification. The Division Bench of the Gujarat High Court, while dismissing the petition, had held that even if the allegation of misconduct did not constitute misconduct among those enumerated in the relevant service regulations, yet the employer could attribute what would, otherwise per se, be a misconduct though not enumerated and punish the employee for the same. The Supreme Court held that unless either in the certified standing orders or in the service regulations an act or omission is prescribed as a misconduct, it is not open to the employer to fish out some conduct as misconduct and punish the workman even though the alleged misconduct would not be comprehended in any of the enumerated misconduct. While holding that the Gujarat High Court had fallen in error, the Supreme court, however, taking note of the fact that the petitioner therein was guilty of suppression of material fact, which would weigh with any employer in giving him employment, held that it was not a case which merited consideration under Article 136 of the Constitution of India. Consequently, the special leave petition filed by the employee was dismissed. In Natavarbhai S. Makwana (3 supra), the employee was charge sheeted for irregular attendance, unauthorized absence, for making unwarranted complaints and for instigating another employee to threaten the person in charge of the staff college training center. The Gujarat High Court held that the charge relating to intimidation to cause physical harm to superiors was not among those specifically enumerated as misconduct. While holding that an employer had to establish misconduct, the Gujarat High Court held that, an ordinary admission alone, of the delinquent officer, could not be regarded as sufficient to prove the misconduct as well as the facts constituting misconduct. The word “misconduct” though not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour, unlawful behaviour, willful in character; a forbidden act, a transgression of established and definite rules of action or code of conduct but not mere errors of judgment, carelessness or negligence in performance of duty. The act complained of must bear forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. (State of Punjab v. Ram Singh Ex. Constable ) Certified standing orders/rules and regulations/bipartite settlements only describe certain cases of misconduct and they cannot be exhaustive of all species of misconduct which an employee may commit. Even though a given conduct may not come within the specific terms of misconduct in the special facts of a case, it may not be possible to condone certain acts for which the employer may have to take appropriate action. Ordinarily the standing orders/rules may limit the concept of misconduct but not invariably so (M.S.Dhantawal v. Hindustan Motors) In A.L.Kalra v. Project & Equipment Corporation, the Supreme Court held that unless a misconduct was specifically defined as such no disciplinary action could be initiated against the employee. This judgment in A.L.Kalra (6 supra) was distinguished in B.C.Chaturvedi v. Union of India, wherein the Supreme Court held that in A.L.Kalra (6 supra) since Rule 5 of the rules defined specific misconduct, the question was whether in the general norm of behaviour, the omission to return the advance amount, which was not specifically defined would constitute a misconduct and in that grey area it was not amenable to disciplinary action unless the act is constituted to be a misconduct under Rule 5 of the said rules. I n B.C.Chaturvedi (7 supra), the Supreme Court held that a public servant in possession of assets disproportionate to his known sources of income, which he has not satisfactorily accounted for, commits a misconduct amenable to disciplinary action under the CCS (CCA) Rules and Conduct Rules. Similarly in Secretary to Government v. A.C.J.Britto, the Supreme Court held that A.L.Kalra (6 supra) did not lay down as a general principle that if an act is not specified by rules to be a misconduct then it cannot be regarded as such and an employee cannot be punished for committing such an act. In Palghat BPL & PSP Thozhilali Union v. BPL India Ltd the Supreme Court held that the question as to what amounts to misconduct is a question of fact to be decided with reference to the facts, the situation in which the act is alleged to have been committed and the attendant circumstances leading thereto. In the present case, the fact, that the petitioner had suppressed his earlier employment with APSRTC, is not in dispute. Even in the general norm of behaviour, as held in A.L.Kalra (6 supra) and B.C.Chaturvedi (7 supra), supressio veri and suggestio falsi would undoubtedly constitute misconduct. In Rasiklal (2 supra) the Supreme Court refused to interfere with the punishment imposed on an employee on his being found guilty of suppression of material fact. While “suppression of material fact” is not specifically enumerated amongst the acts of “gross misconduct” in para 19.5 of the Bipartite settlement, the charge sheet refers to para 19.5(j) of the Bipartite settlement which provides that “doing any act prejudicial to the interest of the bank or gross negligence or negligence involving or likely to involve the bank in serious loss” would amount to gross misconduct. Would this act “of suppression of fact of his previous employment” not constitute an act prejudicial to the interest of the Bank?. The answer has necessarily to be in the affirmative and such an act of misconduct would undoubtedly fall within the expression “gross misconduct” under para 19.5(j) of the Bipartite settlement. As held in Glaxo Laboratories (1 supra), while the provisions of para 19.5 of bipartite settlement would undoubtedly require strict interpretation, since it is a penal provision based on which an employee, if found guilty, is liable to be imposed the penalties specified in para 19.6, even on a strict construction of Para 19.5(j), the act of misconduct alleged against the petitioner would undoubtedly fall within the expression “acts prejudicial to the interests of the bank”. A person who has suppressed his previous employment, while seeking employment in a public institution like the respondent – bank, has certainly committed an act which is prejudicial to the interests of the bank and has thereby committed an act of “gross misconduct” under para 19.5 of the bipartite settlement. As held in Rasiklal (2 supra), since the petitioner is admittedly guilty of suppression of material facts which would weigh with any employer in giving him employment, it is certainly not a case which would merit exercise of discretion in his favour under Article 226 of the Constitution of India. Sri G.Ramachandra Rao, learned counsel for the petitioner, would further submit that even if the charges leveled, are held to be gross misconduct under para 19.5 (j) of the bipartite settlement, the petitioner could not have been imposed the punishment of stoppage of five increments forever, which is not among the penalties specified in para 19.6. According to the learned counsel, while para 19.8 (c), empowers the employer to impose, for proved minor misconduct, punishment of stoppage of increments on an employee for a period not longer than six months, under para 19.6(d), an employee found guilty of gross misconduct may have his increment stopped. Learned counsel would submit that since the word used in para 19.6 (d) is “increment” and not “increments”, (singular and not plural), the punishment which could have been imposed is to stop increment of an employee only for a period of one year. Learned counsel would submit that, in any event, stoppage of five increments cannot be forever since no such penalty is provided in para 19.6 of the bipartite settlement. The expression “have his increment stopped” in para 19.6 cannot be construed in the manner suggested by, Sri G.Ramachandra Rao, learned counsel for the petitioner. The word “Increment”, referred to in para 19.6, would mean future increments and cannot be restricted to merely one