Bhaskar Patra Vs. Chairman-cum-managing Director, Punjab and Sind Bank and ors. - Court Judgment

Excerpt:
- motor vehicles act, 1988 [c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot be entertained i.e. cannot be admitted for consideration unless the statutory deposit is made and for this purpose the court has the discretion either to grant time to make the deposit or not. no formal order condoning the delay is necessary, an order of adjournment would suffice. the provisions of limitation embodied in the substantive provision of the sub-section (1) of section 173 of the act does not extend to the provision relating to the deposit of statutory amount as embodies in the first proviso. therefore an appeal filed within the period of limitation or within the extended period of limitation, cannot be admitted for hearing on merit unless the statutory deposit is made either with the memo of appeal or on such date as may be permitted by the court. no specific order condoning any delay for the purpose of deposit under first proviso to sub-section (1) of section 173 is necessary. [new india assurance co. ltd. v md. makubur rahman, 1993 (2) glr 430 and new india assurance co. ltd. v smt rita devi, 1997(2) glt 406, approved. new india assurance co. ltd. v birendra mohan de, 1995 (2) gau lt 218 (db) and union of india v smt gita banik, 1996 (2) glt 246, are not good law]. - 2, made oral as well as written statements, but however, the order of punishment dated september 24, 1994 in annexure-10 was passed imposing penalty of stoppage of three increments with cumulative effect prospectively. it is further submitted that no prejudice has been caused to the petitioner because he participated in the enquiry and was allowed to give explanation and as well as his defence. the management on consideration of the explanation may decide not to proceed with the process of a disciplinary proceeding if it is satisfied with such explanation of the employee concerned. the appellate authority, appears to have been satisfied with the order of the disciplinary authority without himself considering the grounds raised in the appeal memo, inasmuch as the appellate authority has found it unnecessary to give any personal hearing to the delinquent petitioner.p.k. mohanty, j. 1. the petitioner, a clerk working in punjab and sind bank, assails the order of the disciplinary authority in suspending him by order dated april 23, 1991 (annexure-1) and in imposing the penalty of stoppage of three increments with cumulative effect pursuant to a disciplinary proceeding under annexure-10. 2. the short facts of the case bereft of unnecessary details is that the petitioner joined as a clerk under the opposite parties in the year 1982 and while he was working as such, by order dated april 23, 1991, he was suddenly suspended by opposite party no. 2, who happens to be the disciplinary authority under clause 19.5 of the iv bipartite settlement. on receipt of the suspension order, the petitioner made a representation to opposite party no.2 requesting him to let him know the reasons for suspension, in order that he may explain his innocence. after a lapse of nearly four months opposite party no.2 served a charge-sheet and simultaneously decided to conduct a departmental enquiry and so appointed the enquiring officer without giving him an opportunity to submit his explanation to the charges of gross misconduct as per clause 9.5 (c) of the bi-partite settlement. a copy of the memorandum of charge-sheet dated august 17, 1991 is annexure-4 to the writ petition. it is stated that during the course of domestic enquiry and after presentation of the case by the presenting officer, or on the advice of the enquiring officer, an explanation to the charge-sheet was submitted by the petitioner on january 20, 1992, inter alia, taking the plea that it is fabricated and emanated out of mala fides. a copy of the explanation dated january 20, 1992 is annexure-5. by letter dated june 3, 1992, opposite party no.2 supplied a copy of the enquiry report to the petitioner and advised him to send comments within seven days. the petitioner submitted the comments on june 25, 1992. the petitioner further made a representation on april 25, 1993 for revocation of the suspension order and on may 6, 1993, the suspension order was revoked with immediate effect pending finalisation of the disciplinary proceeding, a copy of which is annexure-8. the petitioner was asked to submit the explanation to the proposed punishment of dismissal from service and he was directed to attend the personal hearing on january 27, 1994. the petitioner attended the personal hearing before opposite party no.2, made oral as well as written statements, but however, the order of punishment dated september 24, 1994 in annexure-10 was passed imposing penalty of stoppage of three increments with cumulative effect prospectively. the petitioner preferred an appeal before the opposite party no.4, the appellate authority, but as alleged, till the date of filing of the writ petition, the appeal was not disposed of. 3. sri k. ray, learned counsel for the petitioneriassails the initiation of disciplinary proceeding itself and the order of punishment passed on the basis of the proceeding on the following grounds:-- (a) the petitioner having been suspended on the basis of the report of the vigilance enquiry and no explanation having been called for, the order of suspension and the proceeding are vitiated being in infraction of the bi-partite settlement. (b) the disciplinary action admittedly is to be taken in accordance with the bipartite settlement. clause 19.1 of the settlement having provided that a person, against whom a disciplinary action is proposed or likely to be taken shall in the first instance be informed with all the particulars of the charges against him and he shall have an opportunity to give his explanation as to such particulars and then only final orders shall be passed after due consideration of relevants facts and circumstances, but in the present case, not only that the charge-sheet has been issued, but in the very same order, the enquiring officer has also been appointed which speaks of the prejudice itself. (c) the order of punishment under annexure-10 has not been passed by the competent authority, but by the assistant general manager (opposite party no. 2) inasmuch as it having been admitted that the power of punishment has been delegated to branch manager, opposite party no. 5, it is the delegates who can pass the order and none else. (d) lastly, it has been contended that on the self-same charge the departmental enquiry having been initiated against the branch manager, and during the enquiry he having been found not guilty and hence exonerated, the petitioner being in the same footing, he ought to have been exonerated. 4. the learned counsel for the opposite party-bank however while refuting the contentions, inter alia submits that the petitioner being a workman within the meaning of section 2(g) of the industrial disputes act and the allegations made in the writ petition being in the nature of industrial dispute, the same can be agitated and adjudicated in the forums under the industrial disputes act, the writ application without approaching the industrial forum is not maintainable. it is submitted that the charges under annexure-4 are grave in nature and alleged to have been committed by the petitioner as a banking clerk and having been framed after a vigilance enquiry, the opposite parties appointed the enquiring officer to proceed on the said charge against the petitioner and the petitioner was asked to submit his explanation in writing to the enquiring officer and, therefore, no explanation was called for from the petitioner before appointing an enquiring officer. it is admitted that otherwise also it is not necessary in view of the vigilance report. the bank being eager to expedite the enquiry because of the suspension of the petitioner, no explanation was called for and as such, no illegality or irregularity has been committed by the bank. the opposite parties submit that on completion of the domestic enquiry and on perusal of the report of the enquiring officer, the bank issued the second show cause notice intimating the proposed order of dismissal for submitting his explanation. it is stated that opposite party no. 2 after considering the explanation of the petitioner reduced the punishment of dismissal and awarded lesser punishment for stoppage of three increments as would be evident from annexure-10. 5. the assertion in the writ petition that the service conditions are governed in terms of the bi-partite settlement has been admitted. it has been further stated that the suspension was in accordance with clause 19.5 of the said settlement, which is legal and valid. it has been reiterated that no explanation from the petitioner was called for before appointing the enquiring officer, as it was thought not necessary in view of the vigilance report. however, it is stated that the petitioner's appeal has been disposed of on march 20, 1996 rejecting the same, a xerox copy whereof is annexure-a. regarding the delegation of the power of disciplinary action to the branch manager, it has been stated that the delegation was under the new rule, which has no application to the present case which is admittedly governed under the bi-partite settlement. 6. in the aforesaid backdrop of the case, the point that emerges for consideration is, as to whether the order of suspension under annexure-1 and the enquiry conducted by the opposite parties in terms of annexure-6 was in accordance with the rules governing the disciplinary proceeding and as to whether the order of punishment has been passed by the competent authority or has been vitiated because it has been passed by an authority other than the competent authority. 7. chapter 23 of the bank workmen service conditions, a publication of punjab and sind bank (west bengal), which has been produced before us, is with regard to the disciplinary action and procedure therefor prescribed for the bank employees. clauses 19.1 to 19.4 of the first bi-partite settlement dated october 19, 1966 which had been relied on to be the rules of procedure laid down for the disciplinary action by both the sides may be quoted hereunder : ' 19.1. in supersession of paragraphs 18.20, 18.24 and 18.28 of the desai award, a person against whom disciplinary action is proposed or likely to be taken shall in the first instance, be informed of the particulars of the charge against him and he shall have a proper opportunity to give his explanation as to such particulars. final orders shall be passed after due consideration of all the relevant facts and circumstances. with this object in view, the following shall apply. 19. 2. by the expression 'offence' shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law. 19.3. (a) when in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted and in such a case he may also be suspended. (b) if he be convicted, he may be dismissed with effect from the date of his conviction or be given any lesser form of punishment as mentioned in clause 19.6 below. (c) if he be acquitted, it shall be open to the management to proceed against him under the provisions set out below in clauses 19.11 and 19.12 infra relating to discharges. however, in the event of the management deciding after enquiry not to continue him in service, he shall be liable only for termination of service with three months' pay and allowances in lieu of notice. and he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full pay and allowances minus such subsistence allowance as he has drawn and to all other privileges for the period of suspension provided that if he be acquitted by being given the benefit of doubt he may be paid such portion of such pay and allowance as the management may deem proper, and the period of his absence shall not be treated as a period spent on duty unless the management so directs. (d) if he prefers an appeal or revision application against his conviction and is acquitted, in case he had already been dealt with as above and he applies to the management for reconsideration of his case, the management shall review his case and may either reinstate him or proceed against him under the provisions set below in clauses 19.11 and 19.12 infra relating to discharge, and the provision set out above as to pay, allowances and the period of suspension will apply, the period up-to-date for which full pay and allowances have not been drawn being treated as one of suspension. in the event of the management deciding, after enquiry not to continue him in service, the employee shall be liable only for termination with three months' pay and allowances in lieu of notice, as directed above. 19.4 if after steps have been taken to prosecute an employee or to get him prosecuted, for an offence, he is not put on trial within a year of the commission of the offence the management may then deal with him as if he had committed an act of 'gross misconduct' or of 'minor misconduct' as defined below. provided that if the authority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution it shall be open to the management to proceed against the employee under the provisions set out below in clauses 19.11 and 19.12 infra relating to discharge, but he shall be deemed to have been on duty during the period of suspension, if any, and shall be entitled to the full wages and allowances and to all other privileges for such period. in the event of the management deciding, after enquiry, not to continue him in service, he shall be liable only for termination with three months' pay and allowances in lieu of notice as provided in clause 19.3 supra. if within the pendency of the proceedings thus instituted he is put on trial such proceedings shall be stayed pending the completion of the trial, after which the provisions mentioned in clause 19,3 above shall apply.' on a reading of the aforesaid provision, itis clear that clause 19.1 requires that a personagainst whom disciplinary action is proposedor likely to be taken, shall in the first instancebe informed of all the particulars of thecharges against him and he shall have anappropriate opportunity to give his explanationas to such particulars. final orders shall bepassed after due consideration of all therelevant facts and circumstances. clause19.3(a) requires that when in the opinion ofthe management, an employee has committedan offence, unless he be otherwiseprosecuted, the bank may take steps toprosecute him or get him prosecuted and insuch a case he may also be suspended. underclause (c) of clause 19.3, in the event themanagement decides after enquiry not tocontinue him in service, he shall only be liablefor termination of service. it is relevant torefer to clause 19.4, which contemplates thatafter steps have been taken to prosecute anemployee etc., he is not put on trial within ayear of the commission of the offence, themanagement may then deal with him as if hehad committed an act of 'gross misconduct'or of 'minor misconduct', provided that if theauthority which was to start prosecution proceedings refuses to do so or comes to the conclusion that there is no case for prosecution, it shall be open to the management to proceed against the employee under the provisions set out in clauses 19.11 and 19.12, in which event he shall be deemed to have been on duty during the period of suspension. gross misconduct has been defined under clause 19.5 of the bi-partite settlement. the opposite party bank in para-6 of its counter affidavit has stated with regard to the submission that no explanation as contemplated under the rules was asked for, avers as follows :-- '6. that the charge-sheet as set out in the enclosure of annexure-4 of the writ petition prima facie shows that the charges are grave offences committed by the petitioner and the said charges were framed after a vigilance enquiry was made. therefore the opposite parties appointed enquiry officer to enquire into the said charge against the petitioner and the petitioner was asked to submit his explanation in writing to the enquiry officer in reply to the said charges. these facts are evident in annexure-4 of the writ petition. hence no explanation was called for from the petitioner before appointing enquiry officer. there is no necessity to do so, in view of the vigilance report. further, it is submitted that the enquiry was envisaged without calling for explanation as the bank was eager to expedite the enquiry as the petitioner was under suspension. on the other hand, it is submitted if the enquiry is directed to be held without waiting for the explanation the said enquiry is not illegal. it is further submitted that no prejudice has been caused to the petitioner because he participated in the enquiry and was allowed to give explanation and as well as his defence. these facts are evident and apparent in annexure 5 of writ application.' 8. undisputedly, the management has not asked the petitioner to submit his explanation for consideration regarding initiation of a disciplinary proceeding, but the charges were framed on the basis of a vigilance enquiry, enquiring officer was appointed and the petitioner was asked to submit his explanation to the enquiring officer directly. the plea of i the management that no explanation was called for before appointing an enquiring officer, since there was no necessity to do so in view of the vigilance report, does not appeal to reasons. if a specific procedure is laid down for initiating a disciplinary enquiry, the same has to be scrupulously followed unless there are sufficient reasons to bypass the procedure. even otherwise, the purpose of initially asking for an explanation is to avoid enquiry, in case the explanation submitted is found satisfactory. the management on consideration of the explanation may decide not to proceed with the process of a disciplinary proceeding if it is satisfied with such explanation of the employee concerned. the eagerness of the opposite parties to expedite the enquiry is not borne out from record and eagerness cannot give sufficient protection or cannot give a right to the opposite parties to obviate and avoid the procedure laid down under the rules or the bi-partite agreement. the vigilance report so emphatically relied on by the management to avoid asking for an explanation is not sacrosanct. the petitioner, on conclusion of the disciplinary proceeding was served with the order of punishment dated september 24, 1994 under annexure-10 imposing penalty of stoppage of three increments with cumulative effect. the petitioner preferred an appeal and the appeal was pending till filing of the writ application. it appears from the counter affidavit that the appeal has been disposed of on march 20, 1996 by the appellate authority. the deputy general manager (personnel), who is the appellate authority, in his two-page order devoted one paragraph to the contentions said to have been made by the petitioner and has observed that the disciplinary authority has already given sufficient opportunity to represent his case and also personal hearing and that there is sufficient materials on record and, therefore, there is no necessity to give any personal hearing to him. the appellate authority further goes on to say that he has carefully considered all the records, but does not find any merit. he has even not found any reason to give any personal hearing to the petitioner. on a reading of the appellate order, it appears that the appellate authority was obsessed with the order of the disciplinary authority and was not inclined to go into the merits of the case and the contentions raised by the petitioner. 9. it appears from the order of the appellate authority that none of the points raised in the appeal have been attended to, considered and decided. the appellate authority, appears to have been satisfied with the order of the disciplinary authority without himself considering the grounds raised in the appeal memo, inasmuch as the appellate authority has found it unnecessary to give any personal hearing to the delinquent petitioner. if a statutory power of appeal under the rules is provided for, it is incumbent upon the appellate authority to apply its mind to the case, considering the contentions and points raised in the appeal and after such consideration only by a reasoned order the same can be disposed of. 10. in that view of the matter, we feel it appropriate to remit this matter to the appellate authority to consider the claim of the petitioner and the points raised in the appeal memo in terms of the rules governing the field of disciplinary proceedings. the order of the appellate authority in rejecting the appeal stands quashed. in the result the writ petition is allowed to the extent indicated above. there shall be no order as to costs. p.c. naik, j. 11. i agree.