Judgment:
S.K. Keshote, J.
1. The petitioner by this writ petition under Article 226 of the Constitution of India prays for the following reliefs:
(a) to restrain the respondents from implementing, operating and executing the order of penalty that may be passed against the petitioner in connection with the charge-sheet dated 6-1-1998 issued by the respondent No. 1 against the petitioner, during the pendency and final disposal of the appeal against such order by the appellate authority under Rule 69 of the S.B.I. Officers' Service Rules;
or in the alternative
(b) to restrain the respondents from implementing, operating and executing the order of penalty that may be passed against the petitioner in connection with the charge-sheet dated 6-1-1998 as Annexure-A for a period of 3 months from the date of service of such order on the petitioner, with a further direction that the appellate authority shall consider and decide the prayer of interim relief in the appeal within one month from the presentation of the appeal by the petitioner;
(c) pending the admission, hearing and final disposal of this petition, be pleased to stay the operation, implementation and execution of the order of penalty that may be passed against the petitioner in connection with the charge-sheet dated 6-1-1998 as per Annexure-A.
2. The briefly stated facts of the case are that the petitioner is an employee of the State Bank of India and posted at its Vithal Udyognagar Branch, Dist. Anand. The petitioner is a J.M.G. 1 Officer. The petitioner was served with a charge-sheet vide memo dated 6-1-1998. It is the case of the petitioner that the Inquiry Officer has already completed inquiry however, in violation of rules and principles of natural justice. The petitioner admits that a second show-cause notice was given to the petitioner dated 9-2-1999 calling upon the petitioner to submit his representation against the inquiry report. It is not in dispute that the copy of the inquiry report has been also served to the petitioner. The petitioner has already submitted his representation-cum-reply to the show-cause notice dated 27-2-1999. The learned Counsel for the petitioner admits that in the inquiry die final order has not been passed so far by the disciplinary authority. The petitioner has apprehension that the disciplinary authority may pass an order of major penalty like his removal from the service or compulsory retirement and that order may be implemented immediately though against that order a right of appeal has been provided under the State Bank of India Officers' Service Rules. It is the grievance of the petitioner that no power does lie with the appellate authority to grant interim relief or stay of the operation of the order of the penalty made by the disciplinary authority. The petitioner undertakes before this Court that he will prefer appeal within the prescribed period of limitation against the order of the penalty, which is ultimately to be passed by the disciplinary authority and the operation of that order may be stayed by this Court during the pendency of the appeal. For this limited purpose what the petitioner states, he is filing this Special Civil Application before this Court.
3. The petition has come for preliminary hearing before this Court on 7-4-1999. The Court has put a pertinent question to the learned Counsel for the petitioner how this petition is maintainable and, secondly how this Court can grant such an interim relief. This matter has been adjourned from time to time so that learned Counsel for the petitioner may assist the Court on this question. The Court also desires from the learned Counsel for the petitioner that he may bring in support of this relief a decision of any of the High Court. The learned Counsel for the petitioner has cited the orders of this Court passed in Special Civil Application No. 9036 of 1993 dated 3-9-1993; order dated 31-1-1989 in Special Civil Application No. 436 of 1989 and the order dated 22-9-1993 in Special Civil Application No. 3141 of 1993.
4. However, two of the orders are only interlocutory orders meaning thereby no final decision is given after hearing the other side. It is also not made known by the learned Counsel for the petitioner what ultimately has been decided in these two Special Civil Applications by this Court. So far as third order is concerned, it is a final decision in the matter. In the later part of the judgment, 1 will deal with all the three orders.
5. The learned Counsel for the petitioner contends that the disciplinary authority is bent upon to impose major penalty upon the petitioner. It has next been contended that the inquiry proceedings held against the petitioner are arbitrary, discriminatory and in breach of principles of natural justice and violative of Article 14 of the Constitution of India. Lastly, it is contended that the petitioner is innocent and law-abiding employee of the respondent-Bank. He has been serving the respondent-bank for last more than 25 years. If at this stage, what the learned Counsel for the petitioner submits the respondent-Bank imposes any major penalty and if the operation of the order of the penalty is not stayed then even if the petitioner prefers appeal the petitioner would remain without protection. The decision by the appellate authority would also take long time. Summing up his these contentions the learned Counsel for the petitioner urges that the limited relief of stay of the operation, execution and implementation of the order of the penalty that may be passed against the petitioner be granted in the interest of justice.
6. I have given my thoughtful consideration to the submissions made by the learned Counsel for the petitioner.
7. On the record of this Special Civil Application the petitioner produced Annexure-F, the State Bank of India Officers' Service Rules (hereinafter referred to as 'Rules'). Rule 67 of the Rules empowers the disciplinary authority to impose on the delinquent officer for an act of misconduct or for any other good and sufficient reason any one or more than one of penalties, namely censure, withholding of increments of pay with or without cumulative effect, withholding of promotion, the recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the bank by negligence or breach of orders, reduction to a lower grade, post or to a lower stage in a time scale, compulsory retirement, removal from service and dismissal.
8. Rule 69 of Rules aforesaid provides that an officer may appeal to the appellate authority against the order imposing upon him any of the penalties specified in Rule 67. It is no more res integra that before approaching to this Court and, more particularly, in the disciplinary matters the employees or officers of the State Government, Corporations, Banks or other local authorities etc. in case any departmental remedy is provided against the order of the penalty, it has to be availed of. In the case where a delinquent officer or employee directly approaches to this Court challenging the order of the disciplinary authority, which is appealable under the rules under which it has been made, this Court may decline to interfere. In the matter where right to appeal has been conferred upon the litigant, this Court may insist upon the litigant first to avail of that remedy. In such matters this Court will relegate the litigant to the alternative remedy available against the impugned order. This is the position of law where a delinquent employee/officer directly approach this Court against an order of the penalty imposed upon him for his proved misconduct.
9. In this case, even the disciplinary proceedings have not been completed and has not attained the stage of penalty. The disciplinary authority is the ceased of the matter at the stage of second show-cause notice. The disciplinary authority after considering the matter and on his satisfaction has power under Rule 67 of Rules to impose any of the penalties provided therein to the petitioner. Whatever the nature of the penalty whether minor or major the petitioner has right of appeal and without exhausting that remedy, no highway is available to the petitioner to approach to this Court. This writ petition is wholly misconceived and certainly it is an attempt on the part of the petitioner to abuse the process of this Court. Even in a case where final order of the penalty is made in the departmental inquiry, I may have my own reservation whether this Court could have protected the petitioner leaving apart the question of availability, alternative remedy by granting interim relief. Until the final order in the matter is made otherwise also no cause of action accrues to the petitioner to approach this Court. In this case, the petitioner has not challenged the charge-sheet given to him by the bank, the Inquiry Report given by the Inquiry Officer and the second show-cause notice given to the petitioner by the disciplinary authority. These are only the 3 actions of the bank which are being taken upto this stage. Without challenging any of the actions aforesaid, I fail to see how any interim relief whatsoever, leaving apart what the petitioner is claiming as an anticipatory interim relief, can be granted by this Court.
10. The petitioner has not challenged the validity of the Rule 69 of the Service Rules aforesaid and rightly so. Merely on the ground that the appellate authority has no power to grant the stay, though I am not expressing any final opinion nor any occasion arises to express final opinion, will not render that provision to be ineffective or a provision which violates any of the provisions of the Constitution. There are the provisions in other statute wherein even against the final order of the authority no appeal or conditional right of appeal has been provided and still those provisions have been upheld by the Apex Court. The reference in this respect may have to Employees' Provident Funds and Misc. Provisions Act, 1952, Workmen's Compensation Act, 1930 etc. If this is the position of law, I fail to see how far the petitioner is correct to pray for such a relief before this Court at this stage. Otherwise also in case the prayer made by the petitioner is granted then what the consequences thereof will be is a matter of serious concern and consideration. It will give a bad signal and secondly any order, if passed, may not be in consonance with the fair play, natural justice and sound legal ground. The petitioner has very cleverly made the pleadings. He does not say that he has no right to appeal or he does not want to file the appeal. What he stated and prayed that before any order of imposing penalty to him is made by the disciplinary authority, anticipatory stay order may be granted. Meaning thereby the authority may be restrained from passing an order. In fact, it is an attempt on the part of the petitioner indirectly to get the disciplinary proceedings stayed. It may not be gainsay that in case the relief prayed for by the petitioner is granted in these proceedings under Article 226 of the Constitution in the matter then certainly the disciplinary authority may not proceed with the matter. Where this Court has even stayed the order even before it comes in its existence then what for the disciplinary authority will give berth to the order. Very peculiar situation does arise if such petition is entertained by this Court leaving apart whether it is permissible under Article 226 of the Constitution of India or not. Pending the appeal before the departmental authority this Court will act as a Court granting only interim relief. So in the disciplinary matter this Court will act as a Court of stay though the order passed against the litigant is not challenged before it. The Article 226 of the Constitution does not contemplate such a power to be exercised by this Court thereunder. Unless an action is completed and an order adverse to the delinquent officer is passed and same is challenged in the Court no such relief as prayed for in this petition can be granted by the Court. Pending disciplinary inquiry it is also otherwise very difficult to accept such a prayer of the petitioner.
11. The second prayer made for staying of the order which may ultimately be passed by the respondent authority for a limited period and in the meanwhile the appellate authority may be directed to decide the prayer may be made by the petitioner for grant of interim relief is also difficult to accept. Under the Rules, where the disciplinary authority is not empowered or conferred with the powers to grant interim relief, this Court will not grant or confer such a power upon it. Otherwise also rightly such a power has not been conferred or available to the appellate authority in disciplinary matter for the obvious reason that ultimately the appeal is allowed the appellate authority may give all reliefs to the delinquent officer. The interim relief in the form of stay or injunction, whatsoever it may be, is not a legal or fundamental right of a delinquent officer. Even in a case where the authority and the Courts are conferred with the powers of granting interim relief in the form of stay or injunction, these are only discretionary powers and in a given case the Court or the authority may grant or decline to grant the interim relief in the form of the stay or injunction. So the grant of interim relief is not as a matter of right or course. Otherwise also when the Courts or the authority upon which the specific power has been conferred for grant of interim relief cannot grant the same as a matter of course or right, the learned Counsel for the petitioner is claiming the same in this case as if it is his right to get the interim relief that is to any the stay of the operation, implementation or execution of order of penalty which is likely to be inflicted upon him. He is claiming it to be as of the legal or fundamental right under Article 226 of the Constitution. Similarly, it may not be granted as a matter of course or right even at the stage where the petitioner comes before this Court after undergoing all the remedies available under Rules against the order of the penalty imposed upon him by the disciplinary authority. When it cannot be claimed as a matter of right or course and if that is the position at that stage how far it is justified for the petitioner to pray for such a relief in this Special Civil Application at this stage where no order prejudicial or adverse to him has so far been passed by the disciplinary authorities.
12. In view of these facts it is a case where the petitioner is exhibiting himself more smart and he has made an attempt to abuse the process of this Court. There are very serious charges against the petitioner. He has not been placed under suspension by the respondent-Bank may be a different matter but, this Court cannot stay any order of penalty likely to be imposed by the disciplinary authority upon the petitioner only on the ground that the appellate authority has no power to grant interim relief. The authorities are to be permitted to act according to the rules and this Court should not interfere in the matter more so where a delinquent officer against whom there are serious charges, who has made an attempt to see that by hook or crook he may continue in the services. I appreciate the courage of the petitioner to approach this Court in its extraordinary equitable jurisdiction in such matter at this stage. It is really surprising that the litigant can get courage to the extent of filing of such a wholly misconceived and frivolous litigation. It is high time where the Court has to take a serious note of such frivolous and misconceived petitions and the petitioner who attempt to abuse the process of the Court has to be severely dealt with. Filing of such petition results in consuming precious and valuable time of the staff of the Registry as well as of the Court. It is equally the concern of the litigants to see that the Court's precious and valuable time is not consumed in deciding the frivolous, misconceived and wholly untenable petition. The Courts are already facing a serious problem in dealing with mounting arrears of the cases and in case such petitions are being filed and entertained it will result in creating more problems for the litigants who are waiting for decision of this Court in their disputes. The time consumed by this Court in deciding this frivolous petition would have been certainly utilised for doing some other useful work. The very day on which this petition has been listed for admission this Court has made it clear to the Counsel for the petitioner that it is wholly misconceived writ petition and it is an attempt to abuse the process of the Court but, still the Counsel for the petitioner insisted for hearing of this matter. On many days this matter was listed in the Court and by now sufficient time of the Court is consumed in hearing the matter as well in dictating the order, reading of draft of order and ultimately final order. Under Article 226 of the Constitution as a rule or right and more particularly in the facts of this case, this Court cannot grant any interim relief in anticipation of some order adverse to the petitioner is likely to be passed by the disciplinary authority.
13. Before concluding the order, I consider it to be appropriate to deal with three orders on which the reliance has been placed by the learned Counsel for the petitioner. It is suffice to say that whatever interim relief which has been granted for fixed term in one case while deciding the same finally, has been granted on the basis of its own facts and it cannot be taken to be a precedent. Secondly, in none of the cases on which reliance is placed by the learned Counsel for the petitioner it has been decided that the Court sitting under Article 226 of the Constitution can stay the implementation, operation and execution of an order of imposing penalty to the delinquent officer even before it gets birth or pending the final decision of the appeal filed against it by the delinquent officer. These three orders are of little help to the petitioner in this case.
14. In the result, this Special Civil Application fails and the same is dismissed for the reasons as stated earlier that this petition is not a bona fide litigation. This is a misconceived, frivolous and a petition to attempt to abuse the process of this Court, the petitioner is directed to pay the costs of this case which is quantified to Rs. 5,000/-. The Branch Manager, State Bank of India, Vithal Udyognagar Branch, Pin - 388 121, Dist. Anand is directed to deduct Rs. 5,000/- from the salary of the petitioner forthwith and deposit this amount in the Chief Minister Relief Fund and the receipt of the deposit of this amount be produced in these proceedings. This order has to be complied with by the Branch Manager, State Bank of India, Vithal Udyognagar Branch, Pin-388 121, Dist. Anand within one month from the date of the receipt of the writ of this order. Office is directed to send copy of this order to the Branch Manager, State Bank of India, Vithal Udyognagar Branch, Anand forthwith.
15. Before pronouncement of the judgment, Mr. K.B. Pujara prays for withdrawal of this Special Civil Application, but in view of the fact that this matter has been heard and the judgment has also been dictated, typed out, running is 13 pages as well as for the reasons as stated in the judgment, I also not consider it to be a fit case where this writ petition has to be dismissed as withdrawn. Accordingly, the judgment is pronounced.