HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D. B. Special Appeal (Writ) No. 324/2016
In
S.B. Civil Review Petition No. 373/2015
In
S.B. Civil Writ Petition No. 1429/1998
Ram Gopal Kumawat S/o Boduram, Caste Kumawat, Peon,
United Commercial Bank, Station Road, Ajmer, and resident of
A.M.C. No. 5/45, Ganj, Ajmer
—-Appellant
Versus
1. United Commercial Bank, Through The Divisional
Manager, Divisional Office, Commercial Centre, Khailand
Market, Ajmer
2. Regional Manager, United Commercial Bank, Regional
Office, Khailand Market, Ajmer
—-Respondents
For Appellant(s) : Mr. A.K. Bhandari, Senior Counsel
assisted by Mr. Vaibhav Bhargava.
For Respondent(s) : Mr. C.P. Sharma.
HON’BLE THE ACTING CHIEF JUSTICE
HON’BLE MR. JUSTICE NARENDRA SINGH DHADDHA
Judgment
REPORTABLE
25/09/2019
(Per Hon’ble Mr. Justice Mohammad Rafiq)
This appeal has been filed by Ram Gopal Kumawat,
challenging judgment dated 26.10.2015 as also order dated
12.01.2016. Vide judgment dated 26.10.2015, writ petition filed
by the appellant was dismissed by the learned Single Judge of this
Court. Vide order dated 12.01.016, review petition filed by the
appellant against the aforesaid judgment was dismissed by the
learned Single Judge.
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The appellant was appointed as Class IV Employee
(Daftari-cum-peon) in respondent-United Commercial Bank at
Ajmer Branch on 20.01.1967. One Heera Lal Kumawat, elder
brother of Om Prakash (husband of appellant’s sister Mrs.
Sushila), opened a recurring deposit account with respondent-
bank on 21.05.1971. He was required to deposit a sum of Rs.
20/- per month. It is alleged that Heera Lal used to give the
aforesaid amount to the appellant for being deposited with the
bank. The appellant used to fill up the pay-in-slip and give the
said amount at deposit counter of the bank for being deposited in
the recurring deposit account of Heera Lal. Meanwhile, relationship
between Om Prakash and appellant’s sister Mrs. Sushila became
strained. Sushila initiated criminal proceedings against her
husband Om Prakash under Section 125 Cr.P.C. and even under
Section 494 I.P.C. As per the appellant, Heera Lal being annoyed
with this, filed a written complaint against him in the Court of
Judicial Magistrate No. 3, Ajmer on 26.04.1978 under Sections
420, Section406, Section409, Section467, Section468 and Section471 IPC. Subsequently, the police
called him for investigation. The appellant was then taken in
custody and was also arrested. The appellant on that very day
informed the bank about his arrest and also applied for leave on
25.06.1979 and 26.06.1979. Copy of the application dated
25.06.1979 addressed to the Manager of the bank has been
placed on record. Appellant contends that this letter was sent to
the Manager of the bank under postal certificate. Copy of the
attendance register which was marked as Exhibit-1 in the
departmental enquiry has been submitted as Annexure-7 of the
writ petition showing that in the register maintained by the
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respondent-bank, the appellant has been shown him on leave on
25.06.1979 and 26.06.1979. The police filed charge sheet against
the appellant for offence under Section 406 IPC in the Court of
Judicial Magistrate, Ajmer. The appellant was released on bail on
26.06.1979 and resumed his services in the bank. The appellant
vide letter dated 27.06.1979 informed the Manager of the Bank
about his arrest and release on bail. The appellant thereafter
appeared in departmental examination for promotion to the post
of Assistant Cashier cum Accountant in which he was declared
successful but not promoted due to pendency of criminal case
against him. Information to this effect was given to the appellant
vide letter dated 27.12.1980. The appellant then submitted a
representation on 23.01.1981 to the respondent-bank contending
that he has been falsely implicated in the criminal case due to
family dispute between his sister and brother of the complainant.
The appellant was placed under suspension vide order dated
06.02.1981. The trial of the criminal case lasted for about ten
years. The Court of Judicial Magistrate No. 1, Ajmer ultimately
vide judgment dated 28.05.1991 acquitted the appellant.
Thereafter, he submitted a representation to the respondent-bank
on 05.06.1991 for revoking his suspension but no action was
taken by the bank. The appellant filed Writ Petition No.
5969/1991 before this Court with the prayer to revoke the
suspension order dated 06.02.1981 with all consequential
benefits. This Court vide judgment dated 24.02.1992 allowed the
writ petition and directed the respondent-bank to immediately
reinstate the appellant with all consequential benefits. The
respondent-bank filed Special Appeal No. 386/1992 against the
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aforesaid judgment of the Single Bench. Initially, the Division
Bench of this Court vide order dated 30.07.1992 admitted the
appeal and stayed operation of judgment passed by the learned
Single Judge. However, vide order dated 12.11.1992, stay order
was modified and the bank was directed to pay full salary to the
appellant. Ultimately, the appeal was dismissed vide judgment
dated 11.03.1997.
Further case of the appellant is that after 13 years of
his arrest on 25.06.1979, the respondent-bank in most malafide
manner served upon him a charge sheet on 30.01.1992 on the
same allegation. The appellant challenged the charge sheet by
filing Writ Petition No. 4558/1992. Learned Single Judge of this
Court vide judgment dated 21.12.1993 allowed the writ petition
and quashed the charge sheet. The respondent-bank filed appeal
against the aforesaid judgment of Single Bench. Division Bench of
this Court vide judgment dated 10.08.1994 directed that the
domestic enquiry may go on but the final order may not be
passed. Finally, vide order dated 13.09.1994, Division Bench
directed the respondent-bank to complete the enquiry within a
period of four months and granted liberty to the respondent-bank
to pass final order. Thereafter, the Division Bench vide order
dated 18.01.1995 further extended the time for completion of
enquiry by two more months. Division Bench vide judgment
dated 22.01.1998 allowed the appeal and set aside the judgment
of the Single Bench observing that if eventually any penalty is
awarded to the appellant, he would be at liberty to challenge the
same in accordance with law.
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Charge No. 1 against the appellant was that he was
arrested on 25.06.1979 and he did not inform the bank about his
arrest and thereby violated Circular dated 08.12.1971. Charge
no. 2 was that the appellant accepted cash from bank customer
Mr. Heera Lal Kumawat for depositing the same in his recurring
deposit account which act was in contravention of the Bank Rules
which provided that no employee of the bank, other than the cash
department staff, is authorised to accept the cash. As per the
appellant, the respondent did not proceed further in disciplinary
proceedings for more than two years. Finally, the enquiry officer
was appointed on 15.09.1994. The appellant thereafter
demanded some documents. The enquiry officer on 23.09.1994
directed the bank to provide the relevant documents to the
appellant. Since the same were not provided, the appellant again
requested that for the purpose of his defence, the documents may
be supplied to him. The enquiry officer on 03.10.1994 ordered
that it is not proper to supply the documents to the appellant for
his evidence. On the next date of departmental enquiry, the
appellant again requested for the documents, in particular, leave
application dated 25.06.1979 and 26.06.1979. Stand of the bank
was that the documents pertain to the period more than ten years
ago, therefore, the same could not be provided to the appellant.
Copy of the order sheet of the departmental proceedings dated
03.10.1994 and 18.10.1994 have been placed on record of the
writ petition as Annexure-14 and Annexure-15. Application dated
14.09.1994 filed by the appellant before the enquiry officer has
also been placed on record of writ petition as Annexure-16. The
bank examined Heera Lal Kumawat (M.W.1); Mahesh Prakash
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(M.W.2); Radhey Lal (M.W.3); M.P. Srivastava (M.W.4). According
to the appellant, M. P. Srivastava (M.W.4) admitted that on
30.08.1978 the appellant gave him a letter (Exhibit DW-1) by
which he applied for leave. Mr. R. K. Rastogi was working as
Manager in the concerned Branch where the appellant was posted
on 25.06.1979 and 26.06.1979. The appellant gave this
application to him. However, the bank dropped the name of Mr. R.
K. Rastogi from the list of witnesses and did not examine him.
Copy of the statement of M. P. Srivastava (M.W.5) has been placed
on record of the writ petition as Annexure-17. The enquiry officer
after recording the evidence asked both the parties to file written
submissions in brief in support of their case. The appellant
submitted that same, copy of which has been placed on record of
writ petition as Annexure-18 to the writ petition. The enquiry
officer submitted his report on 07.03.1995. The disciplinary
authority on that basis passed final order on 10.03.1995,
dismissing the appellant from service. However, this order was
not served on the appellant inasmuch as the appellant continued
to serve with the respondent-bank. In fact, the respondent-bank
gave him letter of appreciation of service on 23.08.1997. It is only
after the dismissal of Special Appeal on 22.01.1998 that the bank
issued letter on 25.02.1998 to the appellant that Zonal Office has
instructed the Regional Office to implement the order dated
22.01.1998 and the order of disciplinary authority dated
10.03.1995 and the appellant was dismissed from service with
effect from the date of service of aforesaid order. This is how,
order of dismissal of the appellant from service was given effect
to. Copy of letter of the bank dated 25.02.1998 and copy of order
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of dismissal of the appellant from service dated 10.03.1995 have
been placed on record of the writ petition as Annexure-21 and
Annexure-20 respectively. The learned Single Judge, after hearing
the parties, dismissed the writ petition filed by the appellant vide
impugned judgment.
Mr. A. K. Bhandari, learned Senior Counsel appearing
on behalf of the appellant argued that the respondents in reply to
the writ petition raised preliminary objection of availability of
alternative remedy of appeal provided under Clause 19.14 of
Chapter XIX captioned as “DISCIPLINARY ACTION AND
PROCEDURE THEREFOR”. Learned Single Judge, however, referring
to number of judgments overruled that objection and proceeded
to decide the writ petition on merits. One of the arguments,
which the appellant raised before the learned Single Judge was
with regard to proportionality of penalty. It was argued that the
appellant joined services of the respondent-bank on 20.01.1967
and was eventually dismissed from service vide order dated
10.03.1995 passed by the disciplinary authority, which was served
upon the appellant vide order dated 25.02.1998. Thus, when this
order was served upon the appellant, he had already completed
pensionable services of 31 years. The learned Single Judge, on
the aspect of proportionality of penalty, referred to the judgment
of the Supreme Court in Raghubir Singh Vs. General Manager,
Haryana Raodways, (2014) 10 SCC 301; State of Andhra
Pradesh Vs. Chitra Venkata Rao, (1975) 2 SCC 558; Union
of India (UOI) Others Vs. G. Annadurai, (2009) 13 SCC
469; V. Ramana Vs. A.P.S.R.T.C. Others, (2005) 7 SCC
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338 but finally recorded findings mostly on the merits of the case
and no finding on the aspect of the proportionality of penalty was
recorded.
Mr. A. K. Bhandari, learned Senior Counsel, while
assailing the judgment of the learned Single Judge as also order of
penalty on merits argued that the penalty is shockingly
disproportionate to the gravity of the charge and unreasonable.
On merits, his submission is that charges against the appellant
have not been proved and the findings recorded by the enquiry
officer and disciplinary authority are perverse. Charge no. 1 was
to the effect that the appellant did not inform the bank about his
arrest in a criminal case on 25.06.1979 which amounted to
violation of Circular dated 08.12.1971. In this regard, it is argued
that the appellant informed the respondent bank in writing about
his arrest in criminal case, which would be evident from Annexure-
4 of the writ petition. In fact, witness of the respondent-bank M.P.
Srivastava (M.W.4) in his cross-examination admitted this fact.
Initially, the police called the appellant for investigation on
30.08.1978. The police again took the appellant for investigation
on 25.06.1979. The appellant then applied for leave of two days
and sent the application to the Bank Manager, Mr. R.K. Rastogi,
whose name was initially included in the list of witnesses but later
on the same was dropped. The appellant was granted leave for
two days as would be evident from attendance register
(Annexure-7 of the writ petition) and leave register (Annexure-8
of the writ petition). The appellant was arrested and released on
26.06.1979 and thereafter when he joined his duties, he
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submitted information of his bail in writing on 27-06-1979 to the
Bank Manger Mr. Rajesh Tyagi (Annexure-9 of the writ petition).
Not only this, case of the appellant was considered for promotion
and vide letter dated 27.12.1980, and Assistant General Manager
of UCO Bank informed the Ajmer Branch of the bank that in view
of the fact that a charge sheet filed against the appellant, he was
not eligible for promotion. This clearly shows that the bank was
throughout aware about the pendency of the criminal case against
the appellant. Learned Senior Counsel argued that the dispute
basically was between sister of the appellant and her husband,
who happen to be real brother of the complainant Heera Lal and it
was because of their strained relations that a false criminal case
was lodged against the appellant.
Learned Senior Counsel further argued that charge no.
2 was with regard to handling of cash of the customer of the bank.
It is argued that this charge is founded on manual of instructions
Vol. I (Cash) of UCO Bank (Annexure-34 of the writ petition)
which provided that “Only members of cash department are
authorised to receive cash from the public. No other member of
the staff is authorised to receive cash.” Learned Senior Counsel
argued that as per the case of the respondent, Ram Gopal was
depositing a sum of Rs. 20/- per month in the recurring deposit
account of his relative Heeralal Kumawat fairly and regularly. Pay-
in-slip was also being filled in by the appellant and the same was
being handed over to the cashier of the bank. It clearly shows that
the appellant was only acting on behalf of his relative and it
cannot be said that he was handling the cash of the bank
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customer in violation of aforesaid instructions. The appellant has
placed on record number of receipts of deposit (Annexure-31 of
the writ petition) in many of which name of the appellant Ram
Gopal Kumawat has been shown as depositor. It was a bona fide
deposit made by the appellant on behalf of his relative in his
recurring deposit account. There is no allegation of embezzlement
against the appellant. It is not even the case of the respondent-
bank that the appellant ever accepted the cash in an unauthorised
manner, which was in contravention of the bank rules.
Learned Senior Counsel further argued that enquiry
proceedings have been conducted in gross violation of principles of
natural justice. Despite repeated requests of the appellant, the
documents were not provided to him, which is clear from order
sheets dated 03.10.1994 and 18.10.1994 (Annexure-14 and
Annexure-15 of the writ petition respectively) and application
dated 14.02.1994 (Annexure-16 of the writ petition); application
dated 23.09.1994 (Annexure-36 of the writ petition) and
application dated 03.10.1994 (Annexure-37) and admission of
Presenting Officer dated 27.01.1995 (Annexure-38). The
documents were not supplied to the appellant because the
respondent contended that since they were more than ten years
old, the same could not be supplied, but at the same time,
disciplinary authority failed to appreciate that charge sheet against
the appellant for alleged charges was served with delay of 13
years and therefore, the respondent cannot take any benefit for
their own fault in not initiating disciplinary proceedings against
him in time. Moreover, the most important witness of the bank
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namely Mr. R.K. Rastogi, to whom the appellant gave his leave
application dated 25.06.1979 (Annexure-5) and 27.06.1979
(Annexure-9) and representation dated 23.01.1981 (Annexure-
11), was initially included in the list of witnesses (Annexure-17)
but later on he was dropped. An adverse inference ought to be
drawn against the respondents that had he been produced, he
would have deposed in favour of the appellant. The respondent-
bank did not even bring on record Circular dated 08.12.1971
(Annexure-22 of the writ petition) which according to them was
violated by the appellant. Circular dated 08.12.1971 required that
no member, other than the cash staff, should handle the cash, but
such circular should be brought to the notice of the employees and
the acknowledgment must be obtained by way of signatures of the
concerned employee. The bank failed to prove that the aforesaid
circular was ever brought to the notice of the appellant, who was a
Class-IV Employee. The enquiry officer as also the disciplinary
authority both have wrongly held that since the appellant was
peon of the bank, he himself would have circulated this circular to
all the employees and therefore, it may be inferred that he was
aware of the said circular. This is nothing but mere work of
imagination on the part of the enquiry officer.
Mr. A. K. Bhandari, learned Senior Counsel referred to
the judgment passed by the Division Bench of this Court in Special
Appeal No. 474/1994 filed by the bank, in which interim order was
passed on 05.04.1994 and argued that the Division Bench in that
order observed that the respondent-bank has not been able to
show that there was any charge of misappropriation of amount in
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the domestic enquiry. It is an undisputed position that in the
domestic enquiry, there was no charge of misappropriation of any
amount of the Bank. Neither there was charge of fraud nor any
allegation of misappropriation. Though the appellant was
subjected to the criminal prosecution for offence under Sections
420, Section406, Section409, Section467, Section468 and Section471, but he was acquitted
honourably vide judgment dated 28.05.1991. On the question of
proportionality of penalty, learned Senior Counsel argued that the
allegation against the appellant is of minor misconduct that he did
not in violation of the Bank Circular dated 08.12.1971 inform the
respondent-bank about his arrest and secondly that he acted
contrary to the department’s instruction that the staff, other than
the cash department staff, should refrain from handling or
receiving the cash from the customer. Learned Senior Counsel
referred to Clause 19.7 of the Memorandum of Settlement
between Central Banking Company and Their Workmen dated
19.10.1999 (for short ‘the Settlement’) in respect of terms and
conditions of service of the bank employees and argued that
Clauses 19.7, 19.8 and 19.9 thereof provide for minor misconduct
and punishment for minor misconduct. Since no specific charge to
the aforesaid effect was framed in the charge sheet, learned
Single Judge was not justified in holding that the appellant was
guilty of major misconduct. Both the charges are highly technical
and minor. Punishment of dismissal from service in the facts of
the present case was highly unreasonable and shockingly
disproportionate. Reliance in this connection has been placed
upon the judgment of the Supreme Court in Raghubir Singh
(supra); Chitraveer Singh Vs. Nagar Panchayat, Jewar,
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(2014) 16, SCC 305 and Om Kumar Others Vs. Union of
India, (2001) 2 SCC 386. Learned Senior Counsel argued that
since the appellant is facing litigation for last 40 years and is now
75 years old, his wife is very old; he has no source of livelihood
and one of his widowed daughter is dependent upon him,
considering that misconduct is minor at the most, he could be
punished with warning or censure as provided in Clause 19.8 of
the Settlement, more particularly when regarding the incident of
25.06.1979, charge sheet was served upon the appellant 13 years
thereafter on 30.01.1992 and the enquiry officer was appointed
two years thereafter on 15.09.1994, there is no satisfactory
explanation for such inordinate delay. Reliance has been placed
on the judgment of the Supreme Court in The State of Madhya
Pradesh Vs. Bani Singh Another, AIR 1990 SC 1308 and
judgment of this Court in Dr. B.K. Choudhary Vs. State of
Rajasthan Others, 1993 (1) WLC 47 to argue that in those
cases charge sheet was quashed only on the ground of delay.
Finding of the learned Single Judge that the allegations against
the appellant are of gross misconduct and covered by Clause
19.5(J) is wholly erroneous. To fall under the aforesaid clause, it
is necessary that act of the appellant should be prejudicial to the
interest of bank and should result into serious loss to the bank.
The respondent-bank has neither alleged nor proved that it
suffered any serious loss. On the contrary, Division Bench of this
Court in its order dated 05.04.1994 had held that the bank has
not suffered any loss.
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Mr. C. P. Sharma, learned counsel appearing on behalf
of the respondent-bank opposed the appeal and argued that the
enquiry officer in the enquiry report has specifically observed that
required documents sought by the appellant had already been
provided by the bank. Reference is made to page 157 of the
paper book. Findings with regard to circular dated 08.12.1971
clearly imposes an obligation upon the bank employees to intimate
promptly in writing if they are registered under the law in a
criminal case. Enquiry officer especially gave a finding that
aforesaid circular was circulated to all the employees of the banks.
Enquiry officer also found charge no. 2 proved wherein it has been
alleged that the appellant was not working in cash department of
the bank and he accepted cash from bank customer to be
deposited by him in his RD account, which act was in
contravention of the bank rule which categorically states that no
member other than cash department staff should receive the
money from the customer of the bank. Enquiry report was also
supplied to the appellant along with letter dated 07.03.1995 and
he was called upon to submit his representation but the appellant
was unable to do so. Therefore, vide order dated 10.03.1995, he
was dismissed from service. It has been proved in the enquiry that
FIR was lodged against the appellant for offence under Sections
420, Section406, Section409, Section467, Section468 and Section471 IPC and charge sheet was also
filed against him. The appellant was arrested and remained in
custody for two days and thereafter released on bail. The
disciplinary authority has concurred with the findings recorded by
the enquiry officer that the appellant failed to inform the bank
promptly in writing about his involvement in criminal case. As
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regards charge no. 2 regarding acceptance of cash by the
appellant from the customer of the bank, it has been proved that
the appellant accepted cash on various dates from Heeralal
Kumawat for being deposited in his R.D. Account at Purani Mandi
Branch, Ajmer for which the appellant was not at all authorised.
The appellant was served with charge sheet for contravention of
clause 19.5(J) of the Bipartite Settlement dated 19.10.1966,
which come under gross misconduct. Learned counsel argued that
this Court in exercise of powers under SectionArticle 226 of the
Constitution of India cannot interfere in factual finding given by
the enquiry officer as well as disciplinary authority.
Relying on the judgment of the Supreme Court in
Disciplinary Authority cum Regional Manager Vs. Nijunja
Bihari Patanik, 1996 Volume 2, Service Cases Today page
760, learned counsel argued that the appellant being bank
employee was expected to discharge his duty with utmost
integrity and devotion and diligence. A bank officer is required to
exercise highest standard of honesty, integrity. Relying on the
judgments in State Bank of India Another Vs. Bela Bagchi
Others, 2005 Vol. 4, Service Cases Today, page 292;
Shashi Bhusan Prasad Vs. Inspector General Central
Industrial Security Force Others, Civil Appeal No.
7130/2009 decided on 01.08.2019, learned counsel argued
that even if the appellant has been acquitted in the criminal case,
department enquiry would be still permissible. Relying on the
judgment of the Supreme Court in State Bank of India Vs.
Samarendra Kishore Endow, 1994 Vol. 2, Service Cases
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Today, Page 250, it is argued that the Supreme Court in that
case held that imposition of appropriate penalty is within the
discretion and judgment of the disciplinary authority and it is
appellate authority which may interfere with the same and not the
High Court or the Administrative Tribunal for the reason that the
jurisdiction of the Tribunal is similar to the powers of the High
Court under SectionArticle 226 of the Constitution of India.
We have given our anxious consideration to rival
submissions and carefully perused the material on record.
As regards argument advanced on behalf of the
appellant about non-supply of the documents, we find that the
documents were denied to the appellant on the ground that they
were more than ten years old therefore, the same could not be
supplied. This stand was taken by the respondents in the teeth of
the fact that the respondent-bank itself initiated the enquiry
against the appellant 13 years after his arrest. We in the facts of
the present case deem it appropriate to go into the aspect of the
proportionality of the penalty considering the nature of the
charges levelled against the appellant. As per the own case of the
respondent-bank, charge sheet dated 30.01.1992 was served on
the appellant with the following allegations:
“1. That on 25.6.1979, you were arrested by
the Police and placed under their custody for an
alleged criminal offence on the strength of an
FIR No.70/78 lodged against you by Shri Heera
Lal Kumawat, under Section 420, Section406, Section467 and
Section471 of IPC registered by the Police Station Sadar
Kotwali, Ajmer. In terms of Bank’s HO SCL
No.67/71 dated 8.12.71, you were under and
obligation to intimate to the Bank promptly, in
writing with regard to the criminal case(Downloaded on 01/10/2019 at 09:06:41 PM)
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any trial or proceedings started there against.
In contravention to this rule, you never
intimated to the Bank about any of the aforesaid
incidents and the facts came to he notice of the
Bank only when the copies of the charge sheets
NO.36, 36A, 36B, 36C and not informing the
Bank regarding above incidents has been
registered as an act of suppression of material
information.
2. That though you were not working in the
Cash Department of Purani Mandi Ajmer branch,
still you accepted cash on various dated viz.,
21.5.71, 28.6.71, 31.7.71, 26.8.71, 20.9.71,
30.11.71, 23.12.71, 3.2.72, 28.3.72 20.2.73,
from Shri Heera La Kumawat (Bank’s customer),
intended to be deposited by him in his R.D. A/C
No.1099, maintained at Purani Mandi Ajmer
branch. Your this act of accepting cash is
unauthorized and clearly in contravention to the
Bank’s rule in this behalf which categorically
states that no employee of the Bank other than
cash department staff is authorized to accept
cash from the customers.
3. The above allegations constitute
misconducts on your part as under:
i) Doing the prejudicial to the interest of
the Bank and gross negligence involving or likely
to involve the Bank in serious loss a gross
misconduct as per clause 19.5(j) of Bipartite
Settlement dated 19.10.1966, as amended.
ii) Breach of the rule of business of the Bank of
instruction for running any department- a minor
misconduct as per clause 19.7(d) of Bipartite
Settlement dated 19.10.66 as amended.”
First charge thus proceeded on the footing that in
pursuance of circular of the bank dated 08.12.1971, the appellant
was under obligation to intimate to the bank promptly in writing
with regard to criminal case registered investigation/enquiry
and/or any trial or proceedings started there against. The finding
recorded by the enquiry officer is that this was customary in all
the branches that every instruction/guideline received from the
headquarter is orally informed to the employees of the bank and
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the same is put on the notice board of the bank. Even though all
such instructions should be got endorsed from the staff of the
bank but placing the same on the notice board should be taken as
sufficient information. Considering that the circular was issued as
far as back on 08.12.1971, sometimes it may not be possible to
locate the same to prove that it was individually served by
obtaining signatures from the staff members. Circular in the
present case was received in the Establishment Branch and the
then Account Officer, Mr. H. C. Bacchani has made noting in the
order sheet that this should be got noted down from the staff.
This amply proves the fact that the then officer-in-charge of the
Establishment Branch had circulated the said circular amongst the
staff members. There is, therefore, no reason to believe that such
an information would not have been put on notice board or not
circulated amongst the staff members. The enquiry officer did not
stop here and proceeded to further record that since the appellant
Ram Gopal Kumawat at that time was working as peon in the
Branch, therefore, this circular must have been marked to him for
being circulated amongst the staff members and he himself must
have circulated the same. This shows that the delinquent-
appellant was aware of the circular. Findings of the enquiry
officer, which have found favour with the disciplinary authority,
have apparently been recorded not on the basis of any kind of
evidence but on assumption that in the working of the bank, the
appellant being a peon, must have circulated the instructions
aforesaid and that when the officer-in-charge of the Establishment
Branch has put up a note in the order sheet that it should be got
noted from all the staff members and put up the same on the
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notice board, the instructions must have been put up on notice
board and noted down by the staff members. This is perverse and
erroneous finding which belies logic. No person of ordinary
prudence could arrive at such finding on the given material. The
appellant being Class IV employee cannot be attributed too much
of knowledge of the intra-departmental circulars/instructions. At
any rate, such knowledge cannot be attributed to the appellant on
the basis of inferences.
Regarding Charge No. 2 also, the enquiry officer has
relied upon manual of instructions Vol. I (Cash) of UCO Bank
(Annexure-34 of the writ petition), which provided that “Only
members of cash department are authorised to receive cash from
the public. No other member of the staff is authorised to receive
cash.” What is alleged in the aforesaid charge is that the
appellant used to receive and deposit a sum of Rs. 20/- per month
on behalf of his relative Heera Lal Kumawat and pay-in-slip was
also being filled in by the appellant and the cash was handed over
to the cashier of the bank. Clearly charge is to the effect that this
act of the appellant in accepting cash was unauthorised and in
contravention of the bank rules which categorically states that no
employee of the bank, other than cash department staff, is
authorised to receive cash from the customers and even then, he
accepted cash on ten different dates, details of which are given in
charge no. 2. As against this, stand of the appellant was that
whenever the amount was given by Heera Lal Kumawat to him, he
deposited the same in his R.D. Account. Reference in this
connection has been made to statement of Radhey Lal (M.W.3),
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the then clerk in the cash department and a witness of the
respondent-bank, who admitted that the officer or clerk in the
cash department accept the cash and from the voucher it does not
appear that the appellant accepted any cash. He also admitted
that training is also given to the bank staff to fill up the pay-in-
slip. The appellant was later on given appreciation and cash
reward in securing deposits for the Bank as is evident from letter
dated 01.06.1976 issued by Assistant General Manager, Planning
Development (Annexure-2 of the writ petition) and letter dated
23.09.1997 issued by Regional Manager (Annexure-3 of the writ
petition). Indisputably, there was no charge of misappropriation
of the bank funds by the appellant. The appellant was subjected
to criminal trial and was acquitted vide judgment dated
28.05.1991 passed by the Judicial Magistrate No. 1, Ajmer. Even
though there was neither any charge in the charge sheet nor any
finding in the report of the enquiry officer but the disciplinary
authority in his report has given a finding that there is vast
difference as regards the entries appearing in the Recurring
Deposit Pass Book and corresponding ledger and it is on that basis
that he concluded that the act of the appellant was prejudicial to
the interest of the bank, amounting to gross negligence or
negligence involving or likely to involve the bank in serious loss.
Satisfaction of the disciplinary authority is thus founded on a
finding in excess of the charges against the appellant. It is
primarily on this finding that the respondent-bank has concluded
that act of the appellant being prejudicial to the interest of the
bank or gross negligence or negligence involving or likely to
involve the bank in serious loss was covered under gross
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misconduct under clause 19.5(J) of the Bipartite Settlement dated
19.10.1966.
We shall therefore examine whether on the basis of
evidence that has been adduced, the bank has been able to bring
home the charges against the appellant within the purview of
clause 19.5(J) of the Bipartite Settlement dated 19.10.1966,
which is reproduced hereunder:
“19.5 By the expression “gross misconduct”
shall be meant any of the following acts and
omissions on the part of and employee:
(a) ………
(b) ……..
(c) ………
(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) ……….
(l) ……….”
Penalty for ‘gross misconduct’ has been provided in
Clause 19.6, which reads as under:
“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.”
As against the aforesaid, the appellant has sought to
argue that this case would be covered by expression ‘minor
misconduct’ as provided under Clause 19.7(d) of the Settlement,
which is reproduced hereunder:
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“19.7. By the expression ‘minor misconduct’
shall be meant any of the following acts and
omissions on the part of an employee:-
(a) ……
(b) ……
(c) …….
(d) breach of any rule of business of the bank or
instructions for the running of any department.
(e) …….
(f) ………
(g) ………”
Penalty for ‘minor misconduct’ has been provided in
Clause 19.8, which reads as under:
“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 increment stopped for a period not
longer than six months.”
Learned Single Judge in the impugned judgment has
accepted the stand of the respondent-bank and held that act of
the appellant in receiving the money from Heera Lal Kumawat for
being deposited in his R.D. account with respondent-bank would
definitely fall within the ambit of misconduct as contemplated
under Clause 19.5(J) of the Bipartite Settlement dated 19.10.1966
punishable with any penalty as provided in Clause 19.6
thereunder. We hardly see any justification for such a conclusion,
even if both the charges against the appellant were accepted as
proved. In charge no. 1, what is alleged against the appellant is
that he violated bank Bank’s HO SCL No. 67/71 dated 08.12.1971,
according to which he was under obligation to intimate the bank
promptly in writing with regard to the criminal case registered
with the investigation/enquiry and/or any trial or proceedings
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started there against and in contravention of the same, he never
intimated the bank about the incident of his arrest. In Charge no.
2, allegation against the appellant is that he accepted cash on
various ten dates from one Heera Lal Kumawat for being deposited
in his RD account maintained at Purani Mandi Branch, Ajmer and
his act of accepting cash is unauthorised and in contravention to
rules, which state that no employee of the bank, other than cash
department staff, is authorised to receive the cash from the
customers. For charge no. 2, the bank has alleged that the act of
the appellant was in contravention to manual of instructions Vol. I
(Cash) of UCO Bank which provides that “Only members of cash
department are authorised to receive cash from the public. No
other member of the staff is authorised to receive cash.” Upon
examining the matter from this perspective and considering the
fact that in the disciplinary proceedings, there was no charge of
embezzlement of money or manipulation of records or fraud
against the appellant, as has been concluded by the disciplinary
authority, the recorded finding is in excess of the charges levelled
against the appellant and would in fact be covered by minor
misconduct provided in Clause 19.7(d) of the Settlement.
The precondition for an act of a delinquent to fall in the
expression “gross misconduct” as per Clause clause 19.5(J) of the
Bipartite Settlement dated 19.10.1966 is that the act or omission
on the part of the employee should be prejudicial to the interest of
the bank or gross negligence or negligence involving or likely to
involve the bank to serious loss. Neither of the charges framed
against the appellant can be said to described as “gross
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misconduct”, which was prejudicial to the interest of the bank nor
likely to involve the bank to serious loss.
The learned Single Judge, on the aspect of
proportionality of penalty, has referred to the judgments of the
Supreme Court in Raghubir Singh (supra); State of Andhra
Pradesh Vs. Chitra Venkata Rao, (supra); Union of India
(UOI) Others Vs. G. Annadurai (supra); V. Ramana
(supra), but finally recorded findings mostly on the merits of the
case rather than on the aspect of the proportionality of penalty.
This would be evident from the following findings recorded by the
learned Single Judge:
“55. In the instant case at hand, the petitioner
was accorded ample opportunity by the enquiry
officer in the enquiry proceedings conducted.
The disciplinary authority while serving a copy of
the enquiry report on 7th March, 1995, called
upon for his response and also accorded an
opportunity of personal hearing, which was
scheduled to be held on 10th March, 1995. The
petitioner for reasons best know to him, did not
respond to the enquiry report as well as did not
appear before the disciplinary authority on 10 th
March, 1995. Thus, the facts of the case at hand
are different and distinguishable from the
opinion referred to and relied upon and has no
application to the facts of the case of the
petitioner.
56. From the materials available on record, it is
also reflected that the petitioner was furnished
with all the documents, which were available
with the respondent-Bank but for his application
seeking leave owing to his arrest on 25 th June,
1979, and the related documents. The then
Manager of the Branch was not examined and
was dropped for the respondent-Bank was
directed to conclude the enquiry within a time
frame by the Division Bench of this Court and
the petitioner was seeking adjournment on one
or the other pretext inspite of a direction to
cooperate in the enquiry proceedings. The very
fact that the petitioner did not respond to the
enquiry report served on him while calling upon
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for his response and was also afforded an
opportunity of personal hearing further proves
that the fact that the respondent-Bank
conducted the enquiry proceedings in
accordance with the procedure affording ample
opportunity of defence to the petitioner during
the course of enquiry as well as by the
disciplinary authority while considering the
matter for imposing of a penalty. The defence
which is put forth in the instant writ application
was not pleaded by the petitioner before the
enquiry officer, no reply was filed to the charge-
sheet. No relationship was disclosed before the
enquiry officer, to lay a factual foundation, for
the alleged false prosecution launched against
him.
60. A glance of the text of 19.5(j) would reveal
that the expression ‘gross misconduct’ includes
any act prejudicial to the interest of the bank or
gross negligence or negligence involving or likely
to involve the bank in serious loss and the
penalty of ‘dismissal without notice’ has been
specifically provided under clause 19.6 for an
employee, who is found guilty of ‘gross
misconduct’. The act of the petitioner in
receiving the money from Hira Lal Kumawat for
deposit in the account of Hira Lal Kumawat with
the respondent-Bank; would definitely fall within
the ambit of the ‘misconduct’ as contemplated to
19.5 (j), punishable with any of the penalty as
provided under clause 19.6.
61. The expression “minor misconduct” as
contemplated under clause 19.7 (d), which
refers to breach of any rule of business of the
bank or instruction for running of any
department; refers to the misconduct in
discharge of duties which the employee is
obliged to perform in accordance with the rules
of business of the bank or instructions for
running of any departmental. Neither the
petitioner was entitled to receive the money
from Hira Lal Kumawat nor was obliged to
deposit the same in the ordinary course of
transaction/business of the bank. Therefore, the
act of the petitioner has been rightly construed
to be an act of ‘gross misconduct’ as
contemplated under clause 19.5 (j). Moreover,
the matter is not be examined by this Court in
exercise of power of judicial review as if an
appeal against the order passed by the
departmental authorities.
62. The petitioner was accorded ample
opportunity by the enquiry officer. The
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Disciplinary Authority while serving a copy of the
enquiry report on 7th March, 1995, called upon
for his response and also accorded an
opportunity of personal hearing, which was
scheduled to be held on 10th March, 1995. The
petitioner for reasons best know to him, did not
respond to the enquiry report as well as did not
appear before the Disciplinary Authority on 10 th
March, 1995.”
In fact, the Division Bench of this Court vide order
dated 05.04.1994 passed in the appeal filed by the respondent-
bank has recorded a categorical finding to the following effect:
“The appellant Bank has not been able to show
that there was any charge of mis-appropriation
of amount in the domestic enquiry. The domestic
enquiry had been permitted to be proceeded
further by this Court by way of interim relief.
Now the domestic enquiry has been concluded
and the respondent has been held guilty.
However, as stated above, it is an undisputed
position that in the domestic enquiry there was
no charge of mis-appropriation of any amount of
the Bank. In view of this position, we do not
think it proper that the operation of the
judgment and order dated 21.12.93 passed by
the learned Single Judge, should be stayed. The
effect of the judgment and order passed by the
learned single Judge quashing the charge sheet
dated 30.1.92, should be given much more so
because it would not be in public interest that
the Bank may pay full salary to the respondent
without taking any work from him.”
In the facts of the case, we are of the considered view
that penalty of dismissal from service awarded to the appellant by
the respondent-bank is shockingly disproportionate to the gravity
of the charges levelled and proved against the appellant. The
Supreme Court in Raghubir Singh (supra) on the aspect of
proportionality of penalty held as under:
“38. Having regard to the facts and
circumstances of this case, we are of the view
that it is important to discuss the rule of the
“Doctrine of Proportionality” in ensuring
preservation of the rights of the workman. The
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principle of “Doctrine of Proportionality” is a well
recognised one to ensure that the action of the
employer against employees/workmen does not
impinge their fundamental and statutory rights.
The abovesaid important doctrine has to be
followed by the employer/employers at the time
of taking disciplinary action against their
employees/workmen to satisfy the principles of
natural justice and safeguard the rights of
employees/workmen.”
The Supreme Court in Om Kumar Others (supra),
in para 66 to 71 held as under:
“66. It is clear from the above discussion that in
India where administrative action is challenged
under SectionArticle 14 as being discriminatory, equals
are treated unequally or unequals are treated
equally, the question is for the Constitutional
Courts as primary reviewing courts to consider
correctness of the level of discrimination applied
and whether it is excessive and whether it has a
nexus with the objective intended to be achieved
by the administrator. Here the court deals with
the merits of the balancing action of the
administrator and is, in essence, applying
“proportionality” and is a primary reviewing
authority.
67. But where an administrative action is
challenged as “arbitrary” under SectionArticle 14 on the
basis of SectionE.P. Royappa v. State of T.N., (1974) 4
SCC 3 (as in cases where punishments in
disciplinary cases are challenged), the question
will be whether the administrative order is
“rational” or “reasonable” and the test then is
the Wednesbury test. The courts would then be
confined only to a secondary role and will only
have to see whether the administrator has done
well in his primary role, whether he has acted
illegally or has omitted relevant factors from
consideration or has taken irrelevant factors into
consideration or whether his view is one which
no reasonable person could have taken. If his
action does not satisfy these rules, it is to be
treated as arbitrary. [SectionIn G.B. Mahajan v. Jalgaon
Municipal Council, (1991) 3 SCC 91 (SCC at p.
111] Venkatachaliah, J. (as he then was) pointed
out that “reasonableness” of the administrator
under SectionArticle 14 in the context of administrative
law has to be judged from the stand point of
Wednesbury rules. In Tata Cellular v. Union of
India, (1994) 6 SCC 651 (SCC at pp. 679-80),
Indian Express Newspapers Bombay (P) Ltd. v.
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(28 of 32) [SAW-324/2016]
Union of India, (1985) 1 SCC 641 (SCC at
p.691), Supreme Court SectionEmployees’ Welfare
Assn. v. Union of India, (1989) 4 SCC 187 (SCC
at p. 241) and SectionU.P. Financial Corpn. v. Gem Cap
(India) (P). Ltd. (1993) 2 SCC 299 (SCC at p.
307) while judging whether the administrative
action is “arbitrary” under SectionArticle 14 (i.e.
otherwise then being discriminatory), this Court
has confined itself to a Wednesbury review
always.
68. Thus, when administrative action is
attacked as discriminatory under SectionArticle 14, the
principle of primary review is for the courts by
applying proportionality. However, where
administrative action is questioned as “arbitrary”
under SectionArticle 14, the principle of secondary
review based on Wednesbury principles applies.
Proportionality and punishments in service law
69. The principles explained in the last
preceding paragraph in respect of SectionArticle 14 are
now to be applied here where the question of
“arbitrariness” of the order of punishment is
questioned under SectionArticle 14.
70. In this context, we shall only refer to these
cases. SectionIn Ranjit Thakur v. Union of India, (1987)
4 SCC 611, this Court referred to
“proportionality” in the quantum of punishment
but the Court observed that the punishment was
“shockingly” disproportionate to the misconduct
proved. SectionIn B.C. Chaturvedi v. Union of India,
(1995) 6 SCC 749, this Court stated that the
court will not interfere unless the punishment
awarded was one which shocked the conscience
of the court. Even then, the court would remit
the matter back to the authority and would not
normally substitute one punishment for the
other. However, in rare situations, the court
could award an alternative penalty. It was also
so stated in SectionUnion of India v. Ganayutham,
(1997) 7 SCC 463.
71. Thus, from the above principles and
decided cases, it must be held that where an
administrative decision relating to punishment in
disciplinary cases is questioned as “arbitrary”
under SectionArticle 14, the court is confined to
Wednesbury principles as a secondary reviewing
authority. The court will not apply proportionality
as a primary reviewing court because no issue of
fundamental freedoms nor of discrimination
under SectionArticle 14 applies in such a context. The
court while reviewing punishment and if it is
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satisfied that Wednesbury principles are
violated, it has normally to remit the matter to
the administrator for a fresh decision as to the
quantum of punishment. Only in rare cases
where there has been long delay in the time
taken by the disciplinary proceedings and in the
time taken in the courts, and such extreme or
rare cases can the court substitute its own view
as to the quantum of punishment.”
The Supreme Court in Naresh Chandra Bhardwaj
Vs. Bank of India and Others, AIR 2019 SC 2075, while
discussing the law on the scope of judicial interference by the
constitution courts in the matter of punishment in disciplinary
proceedings held that domain of the courts on the issue of
quantum of punishment is very limited. It is the disciplinary
authority or the appellate authority, which decides the nature of
punishment keeping in mind the seriousness of the misconduct
committed. This would not imply that if the punishment is so
disproportionate that it shocks the conscience of the court the
courts are denuded of the authority to interfere with the same.
Normally even in such cases it may be appropriate to remit the
matter back for consideration by the disciplinary/appellate
authority. However, one other cause for interference can be where
the plea raised is of parity in punishment but then the pre-
requisite would be that the parity has to be in the nature of
charges made and held against the delinquent employee and the
conduct of the employee post the incident.
The Supreme Court in Ranjit Thakur Vs. Union of
India and Others, (1987) 4 SCC 611, held as under:-
“Judicial review generally speaking, is not
directed against a decision, but is directed(Downloaded on 01/10/2019 at 09:06:41 PM)
(30 of 32) [SAW-324/2016]against the “decision-making process”. The
question of the choice and quantum of
punishment is within the jurisdiction and
discretion of the Court-martial. But the sentence
has to suit the offence and the offender. It
should not be vindictive or unduly harsh. It
should not be so disproportionate to the offence
as to shock the conscience and amount in itself
to conclusive evidence of bias. The doctrine of
proportionality, as part of the concept of judicial
review, would ensure that even on an aspect
which is, otherwise, within the exclusive
province of the court-martial, if the decision of
the Court even as to sentence is an outrageous
defiance of logic, then the sentence would not
be immune from correction. Irrationality and
perversity are recognised grounds of judicial
review.”
In Prem Nath Bali Vs. Registrar, High Court of
Delhi and Another, AIR 2016 SC 101, The Supreme Court in
para 24 to 26 of the report held as under:-
“24. It is a settled principle of law that once the
charges leveled against the delinquent employee
are proved then it is for the appointing authority
to decide as to what punishment should be
imposed on the delinquent employee as per the
Rules. The appointing authority, keeping in view
the nature and gravity of the charges, findings
of the inquiry officer, entire service record of the
delinquent employee and all relevant factors
relating to the delinquent, exercised its
discretion and then imposed the punishment as
provided in the Rules.
25. Once such discretion is exercised by the
appointing authority in inflicting the punishment
(whether minor or major) then the Courts are
slow to interfere in the quantum of punishment
and only in rare and appropriate case substitutes
the punishment.
26. Such power is exercised when the Court
finds that the delinquent employee is able to
prove that the punishment inflicted on him is
wholly unreasonable, arbitrary and
disproportionate to the gravity of the proved
charges thereby shocking the conscious of the
Court or when it is found to be in contravention
of the Rules. The Court may, in such cases,
remit the case to the appointing authority for
imposing any other punishment as against what
was originally awarded to the delinquent
employee by the appointing authority as per the(Downloaded on 01/10/2019 at 09:06:41 PM)
(31 of 32) [SAW-324/2016]Rules or may substitute the punishment by itself
instead of remitting to the appointing authority.”
In view of above discussion, penalty of dismissal
awarded to the appellant is found to be excessive, arbitrary and
wholly disproportionate to the gravity of charges and violative of
Wednesbury principles of unreasonableness, which shakes the
conscience of the Court. In the normal course, we would have
thought of remanding the matter back to the disciplinary authority
for awarding any of the penalties prescribed under Clause 19.8 of
the Bipartite Settlement for minor misconduct. Considering
however that charge sheet in the present case was served upon
the appellant 13 years after the incident on 30.01.1992, and order
of dismissal from service was passed on 10.03.1995 and the
appellant has been litigating with the respondents for almost 27
years, we, in the peculiar facts of the present case, instead of
remanding the present matter back to the disciplinary authority,
deem it appropriate to substitute the penalty of dismissal from
service with the highest penalty awardable under Clause 19.8 of
the Bipartite Settlement, which may be imposed for minor
misconduct, i.e. stoppage of his increment for a period not longer
than six months.
In the result, appeal is allowed. Impugned judgment
dated 26.10.2015 passed by the learned Single Judge as also the
order of dismissal of the appellant from service is set aside and
consequently, the writ petition is allowed. As a result of setting
aside of order of dismissal from service, the appellant shall be
deemed to have continued in service throughout from the date of
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his dismissal till he attained the age of superannuation and shall
be entitled to all consequential benefits together with interest @
6% per annum minus the penalty of stoppage of increment for a
period not longer than six months.
Compliance of this judgment be made by the
respondents within a period of three months from the date copy of
this judgment is produced before the respondents.
(NARENDRA SINGH DHADDHA),J (MOHAMMAD RAFIQ),Acting CJ
MANOJ NARWANI
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