Dismissed

Rashmi Srivastava v. Allahabad Bank B.B.D.Bagh Kokata and Ors.

Allahabad HC12 Oct 2022SPLA/577/2019

Case brief

AI extract

What is this about?

The High Court dismissed a special appeal challenging Single Judge orders that refused to entertain a writ petition under Article 226 regarding a bank employee's punishment due to availability of alternative statutory appeal under the Bank's internal Regulations.

What did the court decide?

Special appeal dismissed; appellant directed to file appeal under Regulation 17 within three months.

Rashmi Srivastava Vs Allahabad Bank B.B.D.Bagh… — Service and Employment | Allahabad HC (2022)

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Court No. - 2

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Case :- SPECIAL APPEAL No. - 577 of 2019 Appellant :- Rashmi Srivastava Respondent :- Allahabad Bank B.B.D.Bagh Kokata And Ors. Counsel for Appellant :- R.Srivastava Inperson,In Person Counsel for Respondent :- Gopal Kumar Srivastava

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Hon'ble Devendra Kumar Upadhyaya,J. Hon'ble Saurabh Srivastava,J.

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(1) Heard the appellant, Ms. Rashmi Srivastava in person and Shri Gopal Kumar Srivastava, learned counsel representing the respondents-Bank.

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(2) At the outset, we note that Allahabad Bank has since been merged with the Indian Bank, accordingly the necessary amendments in the array of the respondents in this special appeal shall be made by the appellant during course of the day.

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(3) Proceedings of this special appeal have been instituted by the appellant-petitioner under Chapter VIII Rule 5 of the Rules of the Court impeaching the judgment and order dated 26.08.2019 passed by the learned Single Judge in Writ Petition No.22721 (S/S) of 2019, whereby the writ petition filed by the appellant-petitioner was disposed of leaving it open for the appellantpetitioner to submit an appeal to the Appellate Authority. Learned Single Judge by passing the said order dated 26.08.2019 further provided that in case such an appeal is filed, the appellate authority shall proceed to decide the same in accordance with law and the Allahabad Bank OfÏcer Employees' (Discipline and Appeal) Regulations, 1976 (hereinafter referred to as "the Regulation, 1976").

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(4) The appellant has also challenged the order dated 04.11.2019 whereby the learned Single Judge has rejected the review petition No.106461 of 2019, whereby the appellant-petitioner had sought review of the order dated 26.08.2019.

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(5) The appellant-petitioner having been appointed as Probationary OfÏcer was working as Junior Management, Grade Scale-II, with the respondents-Allahabad Bank, which now stands merged with Indian Bank.

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(6) While functioning in different capacities at the Service Branch (Lucknow), Bangla Bazar Branch, EDD-1 Hardoi Branch and Currency Chest (Sitapur), the appellant-petitioner was issued a charge-sheet dated 20.08.2016 containing certain charges and accordingly the disciplinary proceedings were drawn against her which ultimately culminated in passing of the punishment order, dated 04.07.2019. By the said order of punishment dated 04.07.2019, three increments of pay with cumulative effect under Regulation 4 (b) of the Regulation, 1976 have been withheld. By the said order dated 04.07.2019 itself suspension of the appellant-petitioner, dated 09.03.2016 was revoked and it was further provided that her suspension period will not be treated as period on duty and no pay and allowances/increments other than the subsistence allowance paid to the appellant-petitioner will be payable to her for the period she remained under suspension.

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(7) Challenging the said order dated 04.07.2019, the appellant-petitioner instituted writ petition No.22721 (S/S) of 2019 before this Court which was disposed of by the learned Single Judge by means of the order dated 26.08.2019, whereby it was kept open for the appellant-petitioner to submit an appeal to the appellate authority and in turn, the appellate authority was directed to proceed and decide the appeal in accordance with law and Regulation, 1976.

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(8) The appellant-petitioner, however, instead of availing the remedy of appeal under Regulation, 1976 preferred a petition seeking review of the said order dated 26.08.2019 before the learned Single Judge, which too has been rejected by means of the order dated 04.11.2019 by the learned Single Judge.

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(9) It is these two orders dated 26.08.2019 and

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04.11.2019, which are under challenge herein before us in this special appeal.

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(10) Learned Single Judge while disposing of the writ petition refused to entertain the petition on the ground of availability of alternative remedy in terms of Regulation 17 of the Regulation, 1976.

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(11) While rejecting the review petition, learned Single Judge after noticing various pronouncements of Hon'ble Supreme Court has held that since Regulation, 1976 provides that an employee may appeal against the order imposing punishment upon him/her as specified in Regulation-4 and further that the appeal shall lie to the appellate authority, it would be appropriate to relegate the appellant-petitioner to avail the remedy of appeal.

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(12) It has been argued by the appellantpetitioner that the alleged alternative remedy available under Regulation-17 of Regulation, 1976 cannot be equated with a judicial remedy under Article 226 of the Constitution of India. It has further been argued by her that in fact the remedy as contemplated/envisaged in Regulation, 1976 is not a statutory remedy, neither is it efÏcacious and hence learned Single Judge has erred in law in refusing to entertain the petition filed by her challenging the order of punishment. She has further argued that as a matter of fact, the appellant-petitioner does not have any hope or expectation to get justice from the appellate authority for the reason that the authorities of the Bank did not pay any heed to; neither did they attend the complaints made by her in relation to incidents of sexual harassment to which she was subjected to. Accordingly, it has been argued by her that she should not be compelled to file appeal under Regulation 17 of the Regulation, 1976.

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(13) On the other hand, Shri Gopal Kumar Srivastava, learned counsel representing the respondents-Bank has submitted that ordinarily the discretion under Article 226 of the Constitution of India should be refused to be exercised by this Court in the face of availability of alternative statutory and efÏcacious remedy and hence, the

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orders passed by the learned Single Judge which are under appeal herein do not call for any interference by this Court in this special appeal, which is liable to be dismissed.

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(14) We have considered the respective submissions made by the appellant, who appears in person as also the learned counsel representing the respondents-Bank.

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(15) The submission made by the learned counsel for the appellant that remedy under Regulation 17 is not a statutory remedy is fallacious and incorrect. Allahabad Bank OfÏcer Employees' (Discipline and Appeal) Regulations, 1976, have been framed in exercise of powers conferred by Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, by the Board of Directors of Allahabad Bank that too in consultation with the Reserve Bank of India and also with the previous sanction of the Central Government. The Regulation, 1976 thus having framed under the provisions contained in Section 19 of a parliamentary enactment are statutory and binding on all the parties concerned.

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(16) It is the submission of the appellantpetitioner that the alternative remedy, as contemplated under Regulation 17, cannot be equated with judicial remedy. The said submission, in the context of exercise of discretionary powers of this Court under Article 226 of the Constitution of India is highly misplaced for the reason that it is a well settled principle of law, as enunciated by Hon'ble Supreme Court in umpteen number of cases, that ordinarily the statutory remedy should not be ignored while entertaining a writ petition under Article 226 of the Constitution of India. Of course, Hon'ble Supreme Court has carved out certain exceptions where the writ petition can be entertained under Article 226 of the Constitution of India even in the wake of availability of statutory remedy. However, such exceptions primarily inter-alia are that in case there are plea relating to violation of principles of natural justice or if vires or constitutionality or any rule or enactment is under challenge. Even otherwise this Court may in given facts of a particular case can

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entertain the writ petitions under Article 226 of the Constitution of India, even though the statutory remedy alternatively may be available if the facts brought before the Court pricks conscious of the Court to entertain the writ petition.

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(17) Except for the aforesaid exceptions, in our considered opinion, statutory remedy which is alternate to the remedy available under Article 226 of the Constitution of India cannot be ignored ordinarily.

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(18) In the entire writ petition as also in the special appeal, we do not find that the case put forth by the appellant-petitioner falls in any of the exceptions so as to ignore the availability of the remedy of statutory appeal available under Regulation 17 of the Regulation, 1976.

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(19) We may, at this juncture, refer to a judgement in respect of departmental enquiry pertaining to an employee of State Bank of India wherein Hon'ble Supreme Court has clearly laid down that exercise of jurisdiction under Article 226 of the Constitution of India cannot be said to be justified in interfering with the order of dismissal passed by the appointing authority, especially when the service rules provided for an alternative remedy of Appeal. The said observations have been made by Hon'ble Supreme Court in the case of State Bank of India and others Vs. Narendra Kumar Pandey 2013 (2) SCC 740 . Paragraph-25 of the said judgement is relevant, which is extracted hereinbelow:-

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"25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well accepted principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any,

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resulting in manifest miscarriage of justice or violation of the principles of natural justice. In SBI v. Ramesh Dinkar Punde (2006) 7 SCC 212, this Court held that the High Court cannot re-appreciate the evidence acting as a court of Appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting ofÏcer or the Inquiring Authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules."

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(20) Accordingly, we find ourselves unable to agree with the submissions made by the appellant-petitioner that even on availability of alternative remedy under Regulation 17, it was incumbent upon learned Single Judge to have necessarily entertained the writ petition filed by her challenging the order of punishment under Article 226 of the Constitution of India.

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(21) So far as the submission made by learned counsel for the appellant-petitioner that she does not have any hope and further that she does not expect any justice from the appellate authority for the reason that her complaints related to the sexual harassment was/ were not attended to or not paid heed to, is concerned, we may observe that in the writ petition no such factual foundation has been laid. Further, in an organization as big as Allahabad Bank, to presume that all the higher ofÏcers shall be acting in a biased manner against the appellant- petitioner will not be correct. If the petitioner/ appellant has any grievance against any individual ofÏcer that can be understood however, for that she will have to lay a very strong foundation. Ordinarily, in the bank organization it is a very higher level ofÏcer who is assigned the functions of appellate authority in the disciplinary matters and hence to bear the apprehension without any factual foundation about miscarriage of justice from such a higher level ofÏcer, in our considered opinion, will not be appropriate.

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(22) For the aforesaid reasons, we find that the orders dated 26.08.2019 and 04.11.2019 passed by learned Single Judge which are under challenge

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herein do not warrant any interference by us in this special appeal.

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(23) Accordingly, the special appeal is hereby dismissed.

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(24) However, we make it open for the appellantpetitioner to prefer an appeal challenging the punishment order before the appellate authority under Regulation 17 of Regulation, 1976 and, in case, any such appeal is filed before the appellate authority along with certified copy of this order, the appellate authority shall consider the same and decide it on merits, in accordance with law and also ignoring the limitation if any, expeditiously, say, within a period of three months from the date such appeal is preferred.

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(25) Since Allahabad Bank has recently been amalgamated with the Indian Bank, as such so as to allay any confusion from the mind of the appellant- petitioner, we provide that the appellant- petitioner shall furnish her appeal under Regulation 17 along with certified copy of this order to the Zonal Manager at Lucknow, who shall forward the same to the appropriate appellate authority. In case appellant-petitioner submits her joining before the Zonal OfÏcer of the amalgamated Bank within two weeks from today, the same shall be accepted and appropriate posting of the appellant-petitioner will also be made by the competent authority of the Bank.

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(26) We may clarify that the joining of the appellant-petitioner being provided for under this order shall not mean that the Court has in any manner condoned/ regularized the period of her absence for which the appellant-petitioner shall make an appropriate application to the competent authority, who shall consider the same and decide the said issue as well in accordance with rules/ law.

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(27) There will be no order as to costs.

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Order Date :- 12.10.2022 PAL

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Digitally signed by NARESH PAL Date: 2022.10.14 15:04:51 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Rashmi Srivastava v. Allahabad Bank B.B.D.Bagh Kokata and Ors.

Case brief

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Rashmi Srivastava v. Allahabad Bank B.B.D.Bagh Kokata and Ors.

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