The High Court dismissed the petitioner's writ petition challenging the Industrial Tribunal's award and the Disciplinary Authority's order of removal. Upholding the Tribunal's decision, the Court held that no error of law apparent on the face of the record existed and warned against sitting in appeal over fact-finding.
No order as to costs.
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.15312 of 2015
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Rupak Kumar, son of late Braj Bhushan Mishra, resident of Jagdishpur baghnagari, P.S.- Sakra, Dist- Muzaffarpur.
.... .... Petitioner
Versus
.... .... Respondents
=========================================================== Appearance : For the Petitioner/s : Mr. Yugal Kishore, Sr. Advocate Mr. Bipin Krishna Singh, Advocate For the Respondent-Bank: Mr. Chitranjan Sinha, Sr. Advocate Mr. Sanjiv Kumar, Advocate
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CORAM: HONOURABLE MR. JUSTICE ASHWANI KUMAR SINGH ORAL JUDGMENT
Date: 20-04-2017
In the present writ application the petitioner has challenged the order dated 23.02.2015 passed in Reference No. 124 of 2013 whereby the Presiding Officer of the Central Government
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Industrial Tribunal (for short ‘Tribunal’) has declined to grant any relief to the petitioner and has found the punishment of removal of the petitioner proportionate to the nature of misconduct.
sub-ordinate cadre of the State Bank of India on 03.05.2000 and promoted as Assistant in the clerical cadre on 08.11.2007. When he was posted as Assistant in Region-I, Administrative office, Patna, a complaint was received by the respondent-Bank that he had concealed his higher qualification at the time of his appointment in the subordinate cadre and pursuant to such complaint an investigation was made by the respondent-bank through its Assistant General Manager (Vigilance) on 28.06.2008 to find out the truth. On investigation, it surfaced that the petitioner was appointed on the basis of School Leaving Certificate dated 16.09.1996 issued from the High School, Bharwari, DistrictMuzaffarpur wherein it was shown that he was studying in ClassIX. In his job application form dated 04.04.2000, he mentioned his education qualification as VIII pass. He got his appointment as messenger by concealing the fact that he was matriculate at the time of such appointment and had passed matriculation examination conducted in the year 1992, which fact was also confirmed by the
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Bihar School Examination Board, Patna vide its letter no.7405 dated 03.07.2008. Further, on investigation, it also revealed that at the time of his getting promotion in clerical cadre, he produced another matriculation certificate of the year 2002 showing matric pass from the High School, Bansbigha, Dhanarua, thereby, again, concealing the said fact of passing matriculation examination in 1992.
“(i) At the time of appointment in the Bank, you submitted a School Leaving Certificate dated 19/09/1996 from High School, Bharwari (Distt. Muzaffarpur) of studying in Class-IX, despite the fact that you already passed Matriculation Examination from
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Bihar School Examination Board, Patna, in 1992, thereby concealing the fact. (ii) You produced subsequently Certificate of Passing Matriculation Examination in 2002 from High School, Bansbigha, Dhanarua, thereby concealing again the fat of passing Matriculation Examination in 1992”.
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before the Disciplinary Authority accepted the punishment proposed in memorandum dated 29.05.2009 whereafter, the Disciplinary Authority issued order for imposition of penalty of bringing down one stage lower in the scale of pay on the petitioner and a copy of the said order was received by him on 15.06.2009.
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“We are of the view that disciplinary proceeding has to be conducted according to the Rules and the prescribed procedure. It invariably lays down the hierarchy of authorities for the purpose. In such a situation, the learned single Judge has erred in creating a new authority in the matter which is inconsistent with the Rules and the prescribed procedure. We disagree with the approach of the learned writ court. Furthermore, law is well settled that the disciplinary authority is always entitled to recall a part or whole of the disciplinary
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proceeding and commence afresh. The impugned action of the appellant recalling the second show-cause notice is, therefore, fit to be upheld.
In the result, this appeal is allowed. We disagree with order of the learned single Judge. In the circumstances of the case, there shall be no order as to costs”.
terms:-
“We do not find any error in the order under review. In the facts and circumstances of the case, this review application is disposed of without any prejudice to the petitioner to challenge the disciplinary proceeding as well as order of punishment before appropriate forum. Furthermore, if the petitioner is aggrieved by order of this court on merits, he can always take recourse to appeal”.
was pending before this Court, the proceeding initiated against him continued. The Enquiry Officer submitted his report dated 03.11.2011 finding both charges having been proved. The
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Disciplinary Authority vide memorandum dated 14.11.2011 asked for second show cause reply from the petitioner after enclosing the inquiry report. The petitioner submitted his second show cause reply on 05.12.2011. After examining the record of the departmental proceeding including the second show cause reply of the petitioner, the Disciplinary Authority found both charges proved and considering the gravity of the proved charges, tentatively came to the conclusion that ends of justice would be served if punishment of removal from service with superannuation benefits is imposed upon the petitioner.
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service with superannuation benefit and without disqualification from future employment in terms of paragraph 6(b) of the Bipartite Settlement dated 10.04.2002.
“Whether the action of the management of State Bank of India to propose the punishment of Sh. Rupak Kumar was proportionate? If not, what relief the workman concerned is entitled for”?
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April, 2015 by the Central Government as per Section 17 of the Industrial Disputes Act, 1947.
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Manager of the respondent-Bank, which was duly granted to him and, thereafter, the petitioner had appeared and passed the matriculation examination whereafter promotion was granted to him in clerical cadre. He submitted that the Bank has a policy for promotion of subordinate cadre employees to clerical cadre after being successful in the written examination and interview for the said promotion. He contended that the action of the management of the State Bank of India whereby the petitioner has been removed from service was not proportionate to the charges and the learned Presiding Officer of the Tribunal failed to appreciate this vital issue while deciding the case.
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punishment order was never communicated to the petitioner. He contended that when the first Disciplinary Authority retired, the successor Disciplinary Authority examined the whole record and decided to withdraw the earlier memorandum whereby proposed order of punishment was communicated to the petitioner. He contended that the said issue was already agitated by the petitioner earlier before this Court and, hence, the petitioner is debarred from raising the issue once again before this Court in the present proceeding.
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commence afresh. Thus, the petitioner cannot be allowed to agitate his grievance before this Court regarding impugned action of recalling the second show cause notice by the respondent-Bank. For the same reason, I am of the view that when no punishment order was ever communicated to the petitioner pursuant to the second show cause notice dated 29.05.2009 on the proposed punishment, there is no question of execution of first order of punishment.
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after taking permission from the competent authority of the Bank, the same would be of no help to the petitioner as the authorities were not aware of the fraud played by the petitioner. In the opinion of this Court looking at the serious nature of the charges if the disciplinary authority awarded the punishment of removal from service with superannuation benefits and without disqualification from future employment to the petitioner, it cannot be said that the punishment imposed was not commensurate to the charges or disproportionate to the charges alleged.
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Tribunal lacked jurisdiction or that the order passed by it is perverse.
“ The jurisdiction to issue a writ of certiorari is a supervisory jurisdiction and the Court exercising it is not entitled to act as an appellate Court. This limitation necessarily means that findings of fact reached by the inferior Court or Tribunal as a result of the appreciation of evidence cannot be reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by the Tribunal, a writ of certiorari can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Similarly, if a finding of fact is based on no
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evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. In dealing with this category of cases, however, we must always bear in mind that a finding of fact recorded by the Tribunal cannot be challenged in proceedings for a writ of certiorari on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal, and the said points cannot be agitated before a writ court ”.
“In case of finding of facts, the court should not interfere in exercise of its jurisdiction under Article 227 of the Constitution. Reference may be made to the observations of this Court in Bathutmal Raichand Oswal v. Laxmibai R. Tarta (1975) 1 SCC 858 where this Court observed that the High Court could not in the guise of exercising its jurisdiction under Article 227 convert itself
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into a court of appeal when the legislature has not conferred a right of appeal. The High Court was not competent to correct errors of facts by examining the evidence and reappreciating. Speaking for the Court, Bhagwati, J. as the learned Chief Justice then was, observed at AIR p. 1301 of the Report as follows: (SCC p. 864, para 7)
„7. The special civil application preferred by the appellant was admittedly an application under Article 227 and it is, therefore, material only to consider the scope and ambit of the jurisdiction of the High Court under that article. Did the High Court have jurisdiction in an application under Article 227 to disturb the findings of fact reached by the District Court? It is well settled by the decision of this Court in Waryam Singh v. Amarnath (AIR 1954 SC 215) (AIR p. 217, para 14) that the
“power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in Dalmia Jain Airways Ltd. v. Sukumar Mukherjee (AIR 1951 Cal 193), to be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority and not for correcting mere errors”.
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This statement of law was quoted with approval in the subsequent decision of this Court in Nagendra Nath Bora v. Commr. of Hills Division (AIR 1958 SC 398) and it was pointed out by Sinha, J., as he then was, speaking on behalf of the court in that case: (AIR P. 413, para 30)
“30. … It is, thus, clear that the powers of judicial interference under Article 227 of the Constitution with orders of judicial or quasi-judicial nature, are not greater than the power under Article 226 of the Constitution. Under Article 226, the power of interference may extend to quashing an impugned order on the ground of a mistake apparent on the face of the record. But under Article 227 of the Constitution, the power of interference is limited to seeing that the tribunal functions within the limits of its authority”."
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opinion that if after giving adequate opportunity to the petitioner, the Disciplinary Authority of the respondent-Bank awarded the punishment of removal from service with superannuation benefits, no fault can be found either with the order of the Disciplinary Authority or with the order of the Appellate Authority or with the order of the Tribunal.
application, being devoid of any merit, is dismissed.
(Ashwani Kumar Singh, J.)
Sanjeet/-
| AFR/NAFR | AFR |
|---|---|
| CAV DATE | NA |
| Uploading Date | 26.04.2017 |
| Transmission | NA |
| Date |
2 issues framed by the court
Whether the writ court can interfere in the findings of the Tribunal on sufficiency or adequacy of evidence.
Whether the punishment of removal from service by the Disciplinary Authority was proportionate to the misconduct.
Colour shows how this judgement treated each authority
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Rupak Kumar
State Bank of India
ASHWANI KUMAR SINGH
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
