Posted On by &filed under High Court, Kerala High Court.


Kerala High Court
T.J. Philip vs State Bank Of Travancore And Ors. on 8 November, 2000
Equivalent citations: (2001) ILLJ 1122 Ker
Author: K M Shafi
Bench: K M Shafi


JUDGMENT

K.A. Mohamed Shafi, J.

1. This O.P. is filed by the petitioner to direct the respondents to restore to the petitioner the increments and all attenuating benefits thereof withheld by the respondents as per Exts.P3, P6 and P8 orders after quashing those orders.

2. The petitioner is a Peon under the respondents in the State Bank of Travancore. According to him, on the basis of certain allegations made against the petitioner an enquiry was conducted against him after issuing a very vague charge-sheet and on the basis of the enquiry report Ext.P3. Preliminary order was issued to the petitioner proposing to inflict punishment of stoppage of one increment with cumulative effect for each of the charges 1, 3 and 4 alleged to have been proved against
him. Though the petitioner gave Ext.P5 explanation, Ext.P6 final order was passed imposing the punishment proposed in the preliminary order Ext.P3. Though the petitioner preferred an appeal before the appellate authority, the 2nd respondent evidenced by Ext.P7, the appeal was dismissed by Ext.P8 order. Therefore, the above O.P. is filed to quash Exts. P3, P6 and P8 orders passed against him imposing punishment.

3. The petitioner has contended that the
charge-sheet Ext. P1 issued to him is very vague
and indefinite and absolutely unsustainable for
want of necessary details. He has also
contended that even though in the enquiry it
was found that the petitioner is not guilty of the
major charge No. 2 alleged in the charge-sheet
and found guilty of minor or trivial charges, he

has been inflicted with major punishment contrary to the Bipartite Settlement entered into between the respondents and their employees.

4. In support of the contention of the petitioner that since Ext. P1 charge-sheet issued to him is very vague and indefinite without particularising the allegations of misconduct, the domestic enquiry conducted against him is vitiated by reason of such vagueness, the counsel for the petitioner relied upon the decision in Ramani v. Karuvatta S. Co-op. Society 1993 (2) KLT 681. The respondents have contended that the petitioner had nowhere such a case that the charge alleged against him is vague before the authorities. They have contended that the petitioner had given a reply to the charge and he was represented by an office bearer of the Union in the domestic enquiry and he participated in the enquiry, cross-examined the witnesses and advanced his arguments. Therefore, if in fact, the charge was vague, he should have informed the disciplinary authority about the vagueness of the charge, in which case the disciplinary authority could have clarified or rectified the vagueness, if any, in the charge-sheet. Therefore, according to them, the contention of the petitioner now raised before this Court in this O.P. that the charge issued to him is vague and indefinite, is not sustainable since he clearly understood the charge and stood enquiry throughout.

5. It is clear from the documents produced in this case that the petitioner had nowhere raised any contention before the authorities at the time of enquiry that the charges levelled against him are vague or indefinite. But he participated in the entire proceedings after filing the reply to the charge represented by an office bearer of the Union and cross-examined the witnesses in this case. Therefore, the contention raised by the petitioner that the enquiry conducted against him is vitiated by vagueness in the charge-sheet is not sustainable.

6. In the decision in State Bank of Bikaner
& Jaipur v. Prabhu Dayal Grover AIR
1996
SC 320 : 1995 (6) S.C.C. 279 : 1996-I-

LLJ-288 the Supreme Court has observed as

follows 1996-I-LLJ-288 at 292:

“6. Of course, it may be said that the letter communicating the accusation against Grover which we have reproduced above does not answer the description of a ‘formal charge-sheet’ but then the contents thereof specifically disclose the charge levelled against him, namely, that of accepting a bribe of Rs. 300 from Shri Maniram in the year 1978 for issuing a demand draft in favour of him and his father. It may also be said that the exact date of acceptance of bribe was not disclosed therein but then along with the letter was enclosed a copy of the complaint received from Maniram which not only discloses that date but also satisfied the requirement of a ‘statement of allegations’ envisaged in Regulation 68 in that all the details regarding the demand and acceptance of the bribe have been stated. It cannot, therefore, be said that Grover was not fully apprised of the accusation levelled against him to enable him to effectively reply thereto. In other words, the provisions of the Regulation have been substantially complied with, though not formally.”

In view of the above ruling of the Supreme Court the contention raised by the petitioner that the enquiry proceedings launched against him is vitiated since the charge-sheet issued to him is vague or indefinite, is not sustainable.

7. The petitioner has contended that he was not given an opportunity to show cause against the proposed punishment. According to him as he was not given an opportunity to be heard before the final order was passed, the final order passed against him is vitiated. In support of this contention he has relied upon the decision in State Bank of Mysore v. R. Shammanna 1985 (1) LLJ 297 (Kant).

8. The respondents have contended that the above decision relied upon by the petitioner has no application to the facts of this case, since in that case there was no offer to the delinquent officer for personal hearing in the show cause notice issued to him regarding the proposed punishment. But in this case along with the show cause notice regarding proposed punishment the enquiry report is also furnished to the petitioner. It is seen that along with Ext.P3 preliminary order proposing the punishment, Ext.P4 enquiry report is also given to the petitioner to which the petitioner has given Ext.P5 explanation. It is only thereafter Ext. P6 final order is passed by the disciplinary authority. It is clearly stated in Ext.P3 preliminary order passed by the disciplinary authority against the petitioner that: the petitioner is given an opportunity of being heard on the proposed punishments mentioned therein as per Clause 19.12(a) of I Bipartite Settlement, 1966. But apart from submitting Ext.P5 explanation he did not avail the opportunity of being heard in this case.

9. It’ is also pertinent to note that the petitioner has no case that any prejudice is caused to him as he was not given an, opportunity to be heard. As already noted the petitioner was given an opportunity of being heard as per Ext.P3 preliminary order, but he did not avail it.

10. In the decision in Union Bank of India v. Vishwa Mohan 1998 (4) SCC 310 : 1998-I-LLJ-1217 the Supreme Court has held that if no prejudice is caused to the employee for the non-supply of the enquiry report, when the disciplinary authority imposed penalty, when the report was available to the delinquent employee before he submitted the appeal, it will not vitiate the enquiry.

11. It is also pertinent to note that the petitioner had filed appeal before the appellate authority and the appellate authority after hearing and considering the objections raised by the petitioner, confirmed the order passed by the disciplinary authority. Therefore, the contention of the petition that the punishment imposed upon him as per the final order without giving him an opportunity to be heard is illegal and unsustainable, is of no force.

12. The petitioner has contended that Ext.P8 appellate order is a non-speaking order and the appellate authority has passed that order without applying his mind and therefore, the order is not sustainable. It is clear from Ext.P8 order that the appellate
authority has considered all the objections raised by the petitioner and passed the order confirming the order passed by the disciplinary authority. It has been contended by the respondents that it is not obligatory on the appellate authority to give reasons while concurring with the order passed by the disciplinary authority and if the order passed by the appellate authority indicates that the appellate authority has considered the proceedings of the enquiry as well as the grounds raised in the appeal, even if there is obligation it is discharged. In support of this contention, the counsel for the respondents relied upon the decision in State Bank of Bikaner & Jaipur v. Prabhu Dayal Grover (supra) already referred to above. In that judgment the Supreme Court has Observed as follows 1996-I-LLJ-288 at 295:

“13. This Regulation also does not obligate the appellate authority to give any reasons for its order. Assuming, that by necessary implication this Regulation also requires the appellate authority to give the reasons, still its order cannot be invalidated, as we find that it has discharged its obligation by considering the records and proceedings pertaining to the disciplinary action and the submissions made by Grover. In other words, the order clearly demonstrates that the appellate authority had applied its mind not only to the proceedings of the enquiry, but also the grounds raised by Grover in his appeal
and on such application found that there was no substance in the appeal.”

In view of the above dictum laid down by the Supreme Court, as it is clear from Ext.P8 order that the appellate authority has considered the entire enquiry proceedings and the objections raised by the petitioner in the appeal, the contention of the petitioner that Ext.P8 appellate order is a non-speaking order without applying its mind, is also not sustainable.

13. It is submitted by the counsel for the
respondents that the procedures and safeguards
applicable to the Government Servants and
industrial workmen are entirely different and
while the management of an industrial concern

can justify the imposition of punishment against its workmen in the course of adjudication, in the case of a Government Servant if disciplinary enquiry has not preceded the prejudicial order, the action would be bad. In support of this contention the counsel for the respondents relied upon the decision in Kamal Kishore Lakshman v. The Management of Pan American World Airways Inc. and Ors. AIR 1987 SC 229 : 1987 (1) SCC 146 : 1987-I-LLJ-107, wherein the Supreme Court has observed as follows 1987-I-LLJ-107 at 110:

“11. But the procedural safeguards appear to be different when termination is sought to be founded upon stigma. If disciplinary inquiry has not preceded the prejudicial order in the case of a Government servant the action would be bad while in the case of a workman the order could be justified even in the course pf adjudication before the appropriate Tribunal under the Industrial Disputes Act even though no inquiry had been undertaken earlier.”

14. Therefore, it is clear that even if the disciplinary action taken is challenged on the ground of any irregularity or error in procedure, the same can be rectified by the authorities by adducing evidence before the forum constituted under Labour Laws. The counsel for the respondents vehemently submitted that the petitioner was a Peon who is a workman under the Industrial Disputes Act and not an officer under the 1st respondent. Therefore, according to him, the petitioner can only raise an industrial dispute before the authorities constituted under the Industrial Disputes Act. Therefore the petitioner should have sought for conciliation before the Industrial Tribunal or the Labour Court, as the case may be, under the provisions of the Industrial Disputes act. Therefore, according to the respondents, the above O.P. filed under Article 226 of the Constitution of India is not sustainable.

15. It is not in dispute that the 1st respondent – Bank is a State as per the statute. If remedies are available under the Industrial Disputes Act, an O.P. seeking it under Article 226 of the Constitution of India is not sustainable. In the decision in Scooters India v. V.E.V. Eldred
1998 (6) SCC 549 : 1999-III- LLJ(Supp)-138 the Supreme Court has observed as follows 1999-III-LLJ(Supp)-138 at 139:

“2. The above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial laws was available to the workman.”

16. In this case the petitioner has filed the above O. P. after the appeal filed by him against the order imposing the sentence is dismissed by the appellate authority, without approaching the authorities constituted under the Industrial Disputes Act and the Labour Laws for the redressal of his grievance. Therefore, in view of the above ruling of the Supreme Court the above O.P. filed before this Court seeking to resolve the industrial dispute for which remedy is available to him under the Industrial Disputes Act, is not sustainable.

17. It is also well settled that a petition to enforce the right, under an agreement or award is not maintainable under Article 32 or 226 of the Constitution of India. In the decision in M.V. Kuriakose v. State of Kerala AIR 1977 SC 1509 : 1977 (2) SCC 728 : 1977-II-LLJ-13 the Supreme Court has observed as follows 1977-II-LLJ-13 at 15:

“7. The petitioner’s remedy when he claims a benefit under an agreement or an Award does not lie by means of a petition under Article 32 of the Constitution. This Article is reserved exclusively for the enforcement of a fundamental right.”

18. The above O.P. is filed by the petitioner to enforce Bipartite Settlement entered into between the petitioner and the respondents. Therefore, it is clear that the above O.P. filed seeking remedy under Article 226 of the Constitution of India is not sustainable.

19. The petitioner lastly contended that the punishment awarded is disproportionate to the charges levelled against him. It is not disputed that Charge No. 2 levelled against the petitioner is not proved. According to the petitioner, charges 1, 3 and 4 are only minor misconduct coming under Clause 19.7 of the Bipartite agreement. But punishment is awarded by stoppage of three increments by finding that the petitioner has committed gross misconduct as enumerated in Clause 19.5 of the Bipartite agreement. I find no force in the above contention also. Charges have been framed
against the petitioner alleging major misconduct and punishment is imposed only against the charges proved against him.

20. From the foregoing discussions it is clear that the above O.P. filed by the petitioner is not only devoid of any merit but also not sustainable under law. Hence the O.P. is dismissed.


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