Anjani Kumar and Sudhir Agarwal, JJ. - (1.) -Aggrieved by the order of punishment dated 30th January, 1999 placing the petitioner in next lower grade scale, appellate order dated 6th May, 1999 and revisional order dated 8th April, 2000 affirming punishment, the petitioner, Vinayak Prasad Awasthi, has filed this writ petition under Article 226 of the Constitution of India seeking a writ of certiorari quashing the said orders. He has also sought a writ of mandamus commanding the respondents to grant him promotion in Middle Management Grade Scale-III (hereinafter referred to as M.M.G.S.-III) with effect from 1.4.1997.
(2.) THE facts in brief as stated in the writ petition are that Syndicate Bank (hereinafter referred to as the bank) is a nationalized bank and as such is 'State' within the meaning of Article 12 of the Constitution of India. THE petitioner was appointed as clerk on 23rd August, 1973 and confirmed on 28th February, 1974. He was promoted to officer's cadre vide order dated 28th September, 1977, known as Junior Management Grade Scale-I (hereinafter referred to as J.M.G.S.-I) and further promoted to Middle Management Grade Scale-II (hereinafter referred to as M.M.G.S.-II) vide order dated 5th May, 1984. THE hierarchy of the officers of the bank is as under : "(i) Scale-I : Rs. 4,250-230-4,940-350-529-230-8,050. (ii) Scale-II : Rs. 6,210-230-8,740 (iii) Scale-III : Rs. 8,050-230-9,200-250-9,700." In order to remove stagnation, the petitioner was granted higher grade, i.e., M.M.G.S.-III with effect from 1st May, 1995, vide order dated 24th December, 1997. In the year 1996 the petitioner was posted as Assistant Manager, Syndicate Bank, Naripura Branch, Agra. The Deputy General Manager, Zonal Office of the Bank, issued an order dated 6th May, 1996 placing him under suspension in a contemplated disciplinary enquiry. A charge sheet was issued on 10.6.1996 and after holding departmental enquiry, the disciplinary authority imposed punishment of reduction to next lower grade, i.e., J.M.G.S.-I. It also provided that the period of suspension shall not be treated on duty and the petitioner shall not be entitled to any wages for the period of suspension except the subsistence allowance already paid. Aggrieved by the order of punishment the petitioner preferred an appeal which has been dismissed by the appellate authority vide order dated 6th May, 1999 and his review petition has been dismissed by the reviewing authority by order dated 8th April, 2000. Learned counsel for the petitioner has assailed the aforesaid orders on the following grounds : (1) The charges levelled against him do not constitute any misconduct. Even otherwise the charges are vague and therefore, on the said allegations the petitioner could not have been punished ; (2) Regulation 6 of Syndicate Bank Officers, Employees (Discipline and Appeal) Regulation, 1976 (hereinafter referred to as the Regulation) contemplates a detailed oral enquiry but no such enquiry has been conducted by the Enquiry Officer. Neither any evidence was adduced nor material was produced before Enquiry Officer and, therefore, the entire proceeding is vitiated in law ; (3) Regulation 4 (g) of the Regulation provides reduction to a lower grade or post but the disciplinary authority has imposed three punishments upon the petitioner, namely, reduction to J.M.G.S.-I from M.M.G.S.-III ; which has the effect of reducing pay scale by two grades ; his period of suspension has been declared as not to be treated on duty for any purpose and full salary for the period of suspension has been denied ; (4) The amount of salary of the petitioner which was debited for recovery on the ground of alleged unauthorised absence of 136 days was passed in violation of principle of natural justice. Moreover it was subsequently regularised by order dated 7th April, 1997 rendering entire act of debiting the said amount illegal. Thus, it cannot be said that the petitioner committed any misconduct. In support of the aforesaid submission he placed reliance upon the decisions-State Bank of Patiala and others v. S. K. Sharma, AIR 1996 SC 1669 ; Nawabkhan Abbaskhan v. State of Gujarat, AIR 1974 SC 1471 ; State of West Bengal and others v. Sanjib Roy and another, JT 2001 (Suppl 1) 118 and State of Punjab and others v. Bakshish Singh, 1998 (8) Supreme 128 : 1998 (1) AWC 57 (SC). This makes the entire basis of proceedings including charge sheet a nullity ; (5) The appellate authority and the revisional authority have passed non-speaking orders though they were required to consider various grounds raised by him and therefore, the orders being non-speaking are illegal. Reliance is placed on Ram Chander v. Union of India, AIR 1986 SC 1173 and Divisional Personnel Officer, Southern Railway v. T. R. Chellappan, 1976 (3) SCC 190 ; (6) The petitioner sought time from Enquiry Officer vide letter dated 14th January, 1999 but the same was ignored and therefore, he was denied adequate opportunity of hearing ; and (7) His promotion to higher post in the year 1997 was denied due to disciplinary proceedings and therefore, after quashing the order of punishment the petitioner is entitled for promotion from due date and all consequential matters.
(3.) THE respondent-bank has filed a counter-affidavit stating that the petitioner while working as Assistant Manager at Agra Main Branch remained unauthorisedly absent without prior permission and did not report for duty despite several letters and reminders. His period of absence was treated unauthorised resulting in recovery of salary from his pay and allowances which he has already received. Further he had availed sundry advance against T. A. bills resulting in recovery of sundry advance from the petitioner. For the aforesaid recovery his savings bank S.T.F. Account No. 43, which was opened at Main Branch Agra on 15th May, 1995, was debited with the sad amount. When the petitioner was transferred from main Branch to Naripura Branch there was a debit balance of Rs. 34,547.84 in S.B. S.T.F. Account No. 43 at Main Branch which was transferred to Naripura Branch on 16th August, 1995. In order to avoid recovery of debit balance from the aforesaid account the petitioner opened another savings bank account S.B. S.T.F. 9983 without bringing this fact to the knowledge of Branch Manager. THE Manager ordered debit of Rs. 34,547.84 to S.B. S.T.F. Account No. 43 but the petitioner acted in violation of said instructions and unauthorisedly debited the said amount to S.B. S.T.F. 9983 and started drawing salary and other credits from S.B. S.T.F. 43 account without the knowledge of the Branch Manager. When the Branch Manager came to know of this fact on 28th October, 1995 he got debited the balance of Rs. 35,723.84 outstanding in Account No. 9983 to petitioner's Account No. S.B. S.T.F. 43. THE petitioner thereafter made subsequent credit of salary and other related transactions to his S.B. Account No. 9983 to thus prevented adjustment of debit balance outstanding in his Account No. S.B. S.T.F. 43 and enjoyed benefits of such credits. In this way the petitioner availed for self undue and unlawful advantages at the cost of bank. Further while working at Naripura Branch he obtained sundry advance of Rs. 5,000 in various denominations for the purpose of substituting some defective notes in connection with cash remittance of Rs. 14,12,000 on 20th April, 1995. Though he returned to the branch on the same date but retained balance amount of sundry advance and after several reminders of the Branch Manager, finally paid it on 24.4.1995. Thus, he misused temporarily the sundry advance of Rs. 5,000. For the aforesaid acts and omissions constituting misconduct, he was placed under suspension on 11.5.1996. A charge-sheet was issued on 10.6.1996. Detailed oral enquiry was conducted. During the course of oral enquiry the management examined one witness and 41 documents were produced before the Enquiry Officer while in defence the petitioner examined one witness and 21 documents were exhibited. THE Enquiry Officer submitted report dated 12.12.1998 holding him guilty of charges. A copy of enquiry report was given to the petitioner and thereafter the order of punishment impugned in this writ petition was passed. THE appeal and review have been rejected. It is said that the petitioner was never promoted from M.M.G.S.-II to M.M.G.S.-III but since he had reached the maximum scale of M.M.G.S.-II he was allowed stagnation increment of next higher grade which did not result in promotion in M.M.G.S.-III but the petitioner continued to function in M.M.G.S.-II. During the pendency of enquiry he was considered for promotion but his matter was kept in sealed cover in accordance with Para 11.5.4 of Promotion Policy dated 28th April, 1993. Since he was ultimately punished, he was thus not promoted in higher grade. It is also submitted that the punishment awarded to the petitioner is in accordance with the Rules. Effective opportunity was afforded to the petitioner. THErefore, no interference is called for under Article 226 of the Constitution of India. Learned counsel for the respondents, opposing the writ petition, supported the orders impugned in the writ petition as per the stand taken in the counter-affidavit. We have heard Sri Yogesh Agarwal learned counsel for the petitioner and Sri P. K. Singhal for the respondents.;