The Patna High Court dismissed writ petitions filed by two bank officers challenging a charge sheet issued for participating in a protest meeting. The Court held that judicial review at the initial stage of disciplinary proceedings is premature unless the authority lacks jurisdiction.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT PATNA
Civil Writ Jurisdiction Case No.499 of 2013
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Lalit Kumar Prasad Singh, Son Of late Ram Naresh Prasad Singh, resident of 22, Jagat Blaram Apartment, Rose Bud School Lane, Boring Road, Patna
.... .... Petitioner/s
Versus
.... .... Respondent/s
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with
Civil Writ Jurisdiction Case No.570 of 2013
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Anirudh Akhauri, S/O late Indu Bhushan Akhauri, R/O A/2, SBI Officers Complex, Opposite Telephone Exchange, Rajendra Nagar, P.S.-Kadam Kuan, Distt-Patna
.... .... Petitioner/s
Versus
.... .... Respondent/s
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Appearance :
(In CWJC No.499 of 2013) For the Petitioner/s : Mr. Abhinav Srivastava, Advocate For the Respondent/s : Mr. S.D.Sanjay, Advocate Mr. Akash Chaturvedi, Advocate
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(In CWJC No.570 of 2013) For the Petitioner/s : Mr. Abhinav Srivastava For the Respondent/s : Mr. Tara Kant Jha, Sr. Advocate Mr. S.D.Sanjay, Advocate Mr. Akash Chaturvedi, Advocate ====================================================== CORAM: HONOURABLE MR. JUSTICE BIRENDRA PRASAD VERMA C.A.V. ORDER
In both these writ petitions common questions of fact as well as law are involved. Therefore, with consent of the parties both these matters were heard together, and are being disposed of by this common order.
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containing articles of charge and statement of imputation of misconduct against both of them and thereby a disciplinary proceeding in terms of rule 68 (1)(i) of the State Bank of India Officers Service Rules ( hereinafter referred to as „Service Rules‟) has been initiated separately calling upon them to submit their written statements of defence within fifteen days from the date of receipt of the said letter. Both the petitioners have prayed that the aforesaid charge sheet dated 27.9.2012 and the disciplinary proceeding initiated against them be set aside, as on the basis of articles of charges they cannot be said to have committed any misconduct under the Service Rules.
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days in a week, on 28.8.2012 during the lunch time, a protest meeting was organized at local Head Office, Patna of the respondent Bank, which was addressed by the petitioners in the capacity of office-bearers of the Association and they reiterated the demand of only five days banking. It is claimed by the petitioners that staging protest meeting against the management‟s proposal for seven days banking and participation in the same was not in individual capacity as an Officer of the Bank, rather it was in the capacity of an officebearer of the said recognized Association. It is further claimed that the protest meeting on 28.8.2012 was held not only at local Head Office at Patna of the respondent Bank, rather protest meeting was organized all over the country.
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Network III, Local Head Office, Patna of the Bank, initiated a disciplinary proceeding in exercise of his powers under rule 68(1) (i) of the Service Rules and charge sheet containing articles of charge, statement of imputation of misconduct, lists of documents and witnesses were served upon both the petitioners separately and both of them were called upon to submit their written statements of defence within 15 days. In response to the aforesaid charge memo, the petitioners claim to have submitted their written statements of defence within the time prescribed denying the charges, and asserting therein that they have not committed any misconduct under the provisions of the Service Rules and, therefore, the disciplinary proceeding itself be dropped.
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support of his above contentions, he has placed reliance on the judgments of the Hon‟ble Apex Court in The Manager, Govt. Branch Press V. D.B. Belliappa [AIR 1979 S.C. 429], A.L. Kalra V. The Project and Equipment Corporation of India Ltd [AIR 1984 S.C. 1361], Sawai Singh V. State of Rajasthan [AIR 1986 S.C. 995], and Transport Commissioner, Madras-5 V. A. Radha Krishna Moorthy [ (1995) 1 S.C.C. 332] . He has placed heavy reliance on a Division Bench judgment of Calcutta High Court in Dr. U.N. Viswas Vs. Union of India & ors.[ ( 1998) 2 CALLT 194 HC] 8. Mr. Tara Kant Jha, learned Senior Counsel, and Mr. S.D. Sanjay, learned counsel, both appearing on behalf of the respondents, have strongly opposed the prayers made in both the writ applications. It is submitted on behalf of the respondents that the petitioners have not stated the facts correctly and if rules 50 (4), 50 (5), 50 (6), 54 (1), 54 (2) and 66 of the Service Rules are read conjointly, then it would be apparent that on the basis of materials available, both the petitioners have committed misconduct and, therefore, they are being subjected to a disciplinary proceeding validly in terms of rule 68 of the Service Rules. According to them, a disciplinary proceeding cannot be permitted to be challenged at the very threshold unless and until it is wholly without jurisdiction. It is contended that, in fact, no cause of action has arisen for the petitioners to approach this Court at this stage against issuance of charge sheet only. The issues raised on behalf of the petitioners are issues of facts and these are yet to be tested and crystallized by the Inquiring Officer with participation of the petitioners in the disciplinary proceedings initiated against
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them. It is highlighted that at the initial stage of a disciplinary proceeding, on the basis of the defence of a delinquent, the powers of judicial review is not required to be exercised by the High Court. However, according to them, on conclusion of the disciplinary proceeding, if final order is passed against the petitioners, then they shall have liberty to challenge the same in appeal before the appellate authority in terms of rule 69 of the Service Rules, and if still aggrieved, then they can assail the validity and correctness of the orders before the High Court and at that stage all the questions raised on behalf of the petitioners can be appropriately considered and decided in accordance with law. On the basis of these submissions, besides others, learned counsels appearing on behalf of the respondents have prayed for dismissal of both the writ petitions with a direction to the petitioners to co-operate for early conclusion of the disciplinary proceeding. In support of their above contentions, the learned counsels appearing for the respondents have placed reliance on the judgments of the Hon‟ble Supreme Court in The Manager, Government Branch Press V. D.B. Belliappa [(1979) 1 S.C.C. 477], State of Uttar Pradesh V. Shri Brahm Datt Sharma [AIR 1987 S.C. 943], Union of India V. Upendra Singh [ (1994) 3 S.C.C. 357], Executive Engineer, Bihar State Housing Board V. Ramesh Kumar Singh [ ( 1996) 1 S.C.C 327], Special Director V. Mohd. Ghulam Ghouse [AIR 2004 S.C.1467], Union of India V. Kunisetty Satyanarayana [ AIR 2007 S.C. 906], State of Orissa V. Sangram Keshari Misra [ ( 2010) 3 S.C.C. 311] and Secretary, Min. of Defence V. Prabhash Chandra Mirdha [AIR 2012 S.C. 2250]. Apart from the above, reliance has also
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been placed on an unreported Division Bench judgment ( of which I was a Party ) of this Court in L.P.A. No. 1195 of 2011 and heavy reliance has been placed on a judgment and order dated 19.12.2012 passed by a learned Single Judge of the High Court of Madhya Pradesh at Jabalpur in Writ Petition Nos. 21358 of 2012 and 21359 of 2012 .
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indicated in the charge memo. Therefore, this is an issue of fact, which requires evidence. Whether the petitioners have discharged their duties with utmost devotion and diligence, and, whether they acted in a manner unbecoming of a Bank official, are also issues of facts, which again require evidence from both sides. Unless and until the issues of facts are crystallized by the Inquiring Officer on the basis of materials produced by the parties, violation of the provisions under rules 50 (4), 50 (5) and 50 (6) read with rule 66 of the service Rules cannot be properly and effectively appreciated and adjudicated upon at this stage.
“50(4) Every Officer shall, at all times, take all possible steps to ensure and protect the interest of the Bank and discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank official.
50 (5) every Officer shall maintain good conduct ad discipline and show courtesy and attention to all persons in all transactions and negotiations.
50 (6) every Officer shall take all possible steps to ensure the integrity and devotion to duty of all persons for the time being under his control and authority.
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54.(1) No Officer shall engage himself or participate in any demonstration which is prejudicial to the interest of the sovereignty and integrity of India, the security of the State, friendly relations with foreign State, public order, decency or morality, or which involves contempt of the court, defamation or incitement to an offence.
54 (2) No Officer shall join, or continue to be a member of an association, the objects or activities of which are prejudicial to the interest of the sovereignty and integrity of India or public order or morality.
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- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - 66. A breach of any of the provisions of these rules shall be deemed to constitute misconduct punishable under rule 67.”
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associations or unions as provided under Article 19 of the Constitution of India, but the aforesaid fundamental rights of a citizen can be regulated by imposing reasonable restrictions. One must bear in mind that the petitioners are not only the citizens of India, but they are also the Officers of high rank/scale of the respondent Bank. They owe certain duties towards the Bank and its well being. Their livelihood is dependent on the well being of the Bank and its financial position. Interest of customers of the Bank cannot be allowed to be compromised in the name of holding protest meeting during bank‟s working hours. Apparently there is a relationship of Master and Servant between the petitioners and the Bank. Master is required to take care of the interest of its servant, but at the same time, servant is also required to protect the interest and well being of its Master. In fact, survival and well being of the Bank vis-à-vis its employees are inter-dependent. Neither the interest of the Bank can be protected in isolation nor the employees in isolation can prosper and can claim better amenities. In fact, financial growth of the Bank and well being of its employees are two sides of the same coin and are fully dependent upon each other.
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(Supra) and Sawai Singh V. State of Rajasthan ( Supra), it was held by the Hon‟ble Apex Court that on the basis of vague charges the departmental inquiry may vitiate, but in several other judgments of the Hon‟ble Apex Court interference at initial stage of inquiry has been deprecated. The issues of vagueness or otherwise have been left to be decided after enquiry report is submitted and final order is passed by the disciplinary authority. It has been consistently held by the Hon‟ble Apex Court that disciplinary proceeding at its initial stage can be interfered with in exercise of powers of judicial review at the very threshold only if the order is wholly without jurisdiction. At this stage I am tempted to refer to the judgment of the Hon‟ble Apex Court in State of Uttar Pradesh V. Shri Brahm Datt Sharma (Supra) . Paragraph 9 of the judgment would be relevant and is reproduced herein below.-
“The High Court was not justified in quashing the show cause notice. When a show cause notice is issued to a Govt. servant under statutory provision calling upon him to show cause, ordinarily the Govt. servant must place his case before the authority concerned by showing cause and the courts should be reluctant to interfere with the notice at that stage unless the notice is shown to have been issued palpably without any authority of law. The purpose of issuing show cause notice is to afford opportunity of hearing to the govt. servant and once cause is shown it is open to the govt. to consider the matter in the light of the facts and submissions placed by the govt. servant and only thereafter a final decision in the matter could be taken. Interference by the Court before that stage would be premature. The High Court in our opinion ought not to have interfered with the show cause notice.”
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covers the issues raised in the present proceeding and is, therefore, reproduced herein below :-
“In the case of charges framed in a disciplinary inquiry the tribunal or court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court.”
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Court in Union of India V. Kunisetty Satyanarayana (Supra), State of Orissa V. Sangram Keshari Misra ( Supra) and recently in Secretary, Min. of Defence V. Prabhash Chandra Mirdha ( Supra) has consistently held that issuance of charge sheet in a disciplinary proceeding cannot be subject matter of challenge in a writ proceeding at an initial stage unless it is established that same has been issued by an authority not competent to initiate the disciplinary proceeding. Writ petition against show cause notice or charge sheet at that stage has been held to be pre-mature as it does not give rise to any cause of action. It has further been held that mere issuance of show cause notice or charge sheet does not infringe right of any person and only when final order imposing some punishment or otherwise is passed adversely affecting a party, the said party can be said to have the valid grievance giving him right to assail the said order in a writ petition under Article 226 of the Constitution of India and not otherwise. The Hon‟ble Apex Court has recently crystallized the law in paragraph 13 in Secretary, Ministry of Defence v. Prabhas Chandra Mirdha (Supra) , which is being reproduced herein below :-
“Thus, the law on the issue can be summarised to the effect that charge-sheet cannot generally be a subject-matter of challenge as it does not adversely affect the rights of the delinquent unless it is established that the same has been issued by an authority not competent to initiate the disciplinary proceedings. Neither the disciplinary proceedings nor the charge-sheet be quashed at an initial stage as it would be a premature stage to deal with the issues. Proceedings are not liable to be quashed on the grounds that proceedings had been initiated at a belated stage or could not be concluded in a reasonable period unless the delay creates prejudice to the delinquent employee. Gravity of alleged misconduct is a relevant factor to be taken into consideration while quashing the
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proceedings.”
(Birendra Prasad Verma, J)
Kanth/A.F.R.
3 issues framed by the court
Whether a writ petition challenging the issuance of a charge sheet at the initial stage of a disciplinary proceeding can be entertained when no jurisdictional flaw exists.
Whether the High Court can interfere with the initiation of disciplinary proceedings and issuance of charge sheet before the conclusion of the inquiry.
Whether participation in a protest meeting by government employees as union office-bearers can be termed misconduct at the threshold stage.
Colour shows how this judgement treated each authority
A.L. Kalra V. The Project and Equipment Corporation of India Ltd [AIR 1984 S.C. 1361]Distinguished¶77
Sawai Singh V. State of Rajasthan [AIR 1986 S.C. 995]Distinguished¶77
Transport Commissioner, Madras-5 V. A. Radha Krishna Moorthy [ (1995) 1 S.C.C. 332]Distinguished¶7
Dr. U.N. Viswas Vs. Union of India & ors.[ ( 1998) 2 CALLT 194 HC]Referred¶7
The Manager, Government Branch Press V. D.B. Belliappa [(1979) 1 S.C.C. 477]Explained¶77
Union of India V. Upendra Singh [ (1994) 3 S.C.C. 357]Explained¶82
Special Director V. Mohd. Ghulam Ghouse [AIR 2004 S.C.1467]Referred¶48
Union of India V. Kunisetty Satyanarayana [ AIR 2007 S.C. 906]Explained¶89
State of Orissa V. Sangram Keshari Misra [ ( 2010) 3 S.C.C. 311]Explained¶89
Secretary, Min. of Defence V. Prabhash Chandra Mirdha [AIR 2012 S.C. 2250]Explained¶89
Lalit Kumar Prasad Singh
Anirudh Akhauri
State Bank Of India
Birendra Prasad Verma
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
