To all CMDs, EDs, CVOs of all PSB Tips before Final Orders by Disciplinary Authority (1) Procedure in case disciplinary authority differs with the enquiry report of Inquiring Authority : The interest of justice require that in case the disciplinary authority does not accept the report of the enquiry officer exonerating a Govt. servant, it should record its provisional conclusions and issue a notice to the concerned public servant asking him to show cause why the proposed punishment be not imposed on him. (Banarsi Lal Vs. Union of India, 1984-II-LLN-562) (Punjab & Haryana High Court) The Disciplinary Authority must record reasons as to the points of difference as also the evidence which has been relied upon by the Disciplinary Authority for recording his disagreement with the findings of Inquiring Authority. In “Santosh Kumar Roy- (Petitioner) Vs The State Bank of India and others (Respondent)” 1989 Lab. I.C. NOC 101 (PAT), the court held that where the Disciplinary Authority has not stated any reasons as to how he disagrees with the findings of the inquiring authority and had not discussed the evidence on the record for the purpose of showing that the same was sufficient for the purpose of recording his own findings on the charge , it would be substantial failure on the part of the disciplinary authority to comply with – rule 50(3) (ii) ( This rule corresponds to regulation 7 (2) of discipline & Appeal Regulation of officers in other Banks ). The disciplinary authority while disagreeing with the findings of the inquiring authority should also give notice to the officer charged besides recording reasons for such disagreement and record its own findings on such charge. This was the view taken by the Andhra Pradesh High Court in T.Vasudeva Rao Vs. General Manager, Punjab National Bank, New Delhi and Others (1990(1) SLR 343 A.P. HC). The court observed : “ It is also well settled that the finding recorded by the enquiry officer is not binding on the disciplinary authority and the disciplinary authority can disagree with the finding and record its own finding based on reasons but before exercising that right, the doctrine of fair play would require, i.e., an opportunity of representation should be given to the delinquent officer to show cause as to why the finding in favour of the delinquent officer should not be disturbed for the reasons given in the show cause notice calling upon an explanation, consider the same and then come to its own conclusion either agreeing or disagreeing with the stand taken by the delinquent officer.” Vigilance Manual - special chapter on vigilance Management in Public Sector Banks states as under: 12.5.2: In view of the Supreme Court’s judgment in Ramzan khan’s case, if the disciplinary authority is different from the inquiry authority, and if the latter has held all or any of the charges against the C.O. as proved , the disciplinary authority should ask the C.O. for his representation, if any , within 15 days . In case If the Inquiry Officer has held any or all the charges against the C.O. as “not proved “, the disciplinary authority should consider the Inquiring officer’s report in the first instance. If he disagrees with the Inquiring Officer’s findings , he should communicate his reasons for disagreement, to the C.O. while asking for his representation . The disciplinary authority may take further action on the inquiry report on consideration of the C.O.’s representation or on the failure of the C.O. to submit the same within the stipulated time. (2) Enquiry Officer Vs Inquiring Authority. In terms of 3rd. BPS dated 22.11.1979 by modification of clause 19.14 of 1st. BPS, para 521(12) of the Shastri Award & para 18.28 of the Desai Award “ It is clarified that the Disciplinary Authority may conduct the enquiry himself or appoint another officer as the ENQUIRY OFFICER for the purpose of conducting the enquiry”. In terms of Regulation 6(2) of Punjab National Bank Officer Employees’ (Discipline &Appeal) Regulations, 1977 “ Whenever the Disciplinary Authority is of the opinion that there are grounds for inquiring into the truth of any imputation of misconduct or misbehaviour against an officer employee, it may itself enquire into, or appoint any other person who is, or has been, a public servant ( herein after referred to as the INQUIRING AUTHORITY ) to inquire into the truth thereof ” Note: In Darbhanga Circle the DA in case of Officer Employees is appointing Enquiry Officer instead of Inquiring Authority, which is not proper, In terms of Regulation 6(2) of Punjab National Bank Officer Employees’ (Discipline &Appeal) Regulations, 1977. (3) Two major penalties cannot be imposed in the same enquiry. Where the regulations relating to disciplinary procedure provided for imposition of major punishment of reduction to a lower grade or post, or to a lower stage in a time scale, the punishment could be either to reduce the person concerned to lower grade or post or to lower him in the time scale, the two penalties viz., reduction to a lower grade and reduction in time scale cannot be imposed as both result in reduction of salary. (Ashok Kumar Sapra Vs. Union of India, 1986-II-LLJ 223 Delhi High Court) & ( Nand Kishore Katyal Vs. Bank of India, 1989(2) RSJ 46 Delhi High Court) In case of Ashok kumar Sapra the hon’ble Delhi High Court observed that two major penalties of reduction in grade and further reduction by five stages in the lower grade is improper. The Delhi HC held that two major penalties cannot simultaneously be imposed on an employee. Where a Railway Servant was reduced in scale of pay as well as in the time scale of pay, it was held that these two penalties could not be imposed. (R.Devadanam Vs. Union of India , 1989(2) SLJ (CAT) 131 (Hyderabad) (4) Fixing pay in the lower scale on reduction in rank. In Nand Kishore Katyal Vs Bank of India, 1989(3) SLR 48, the Hon’ble Delhi HC observed : “ In my opinion, when a person is directed to be reduced to a lower grade, then his relative position in the lower grade has to be fixed. This is best fixed by taking a percentage and not by taking the number of stages which he had reached in the scale from which he was reduced. The petitioner had reached the highest of the Scale II, namely Rs. 2000/- per month. Either the petitioner should have been reduced in that scale, which was not done in this case, or he could have been placed at the corresponding position in Scale I which was at the highest of scale of Rs. 700/- - - - Rs. 1800/-. The petitioner should, therefore, have been put at Rs. 1800/- and not at Rs. 1320/-.” Note: In my view “ All the decisions holding that penalty of reduction in the lower stage in time scale of pay as well as reduction in rank cannot be simultaneously imposed, are based on the reasoning that two penalties, both having the net effect of reduction or loss in salary should not be imposed, and hence cannot be sustained.” (5) Reduction to lower time-scale of pay, grade, post or Service under Rule 11 of CCS (CCA) Rules, 1965 clause (vi) Vs Reduction to a lower grade or post under Punjab National Bank Officer Employees’ (Discipline &Appeal) Regulations, 1977 regulation 4(g) : CENTRAL CIVIL SERVICES (CLASSIFICATION, CONTROL & APPEAL) RULES, 1965 Major Penalties - Clause (vi) : Reduction to lower time-scale of pay, grade, post or Service for a period to be specified in the order of penalty, which shall be a bar to the promotion of the Government servant during such specified period to the time-scale of pay, grade, post or Service from which he was reduced, with direction as to whether or not, on promotion on the expiry of the said specified period - (a) the period of reduction to time-scale of pay, grade, post or service shall operate to postpone future increments of his pay, and if so, to what extent; and (b) the Government servant shall regain his original seniority in the higher time scale of pay , grade, post or service; Scope of penalty of reduction in rank - Supreme Court judgment in cases of Shri Nayadar Singh & Shri M.J. Ninama Vs. Union of India (Civil Appeal No. 3003 of 1988 and 889 of 1988) :- Clause (vi) of Rule 11, which enumerates the penalties that may be imposed on a Government servant after following the prescribed procedure, provides as under: “(vi) reduction to a lower time-scale of pay, grade, post or Service which shall ordinarily be a bar to the promotion of the Government servant, to the time scale of pay, grade, post or Service from which he was reduced with or without further directions regarding conditions of the restoration to the grade or post or Service from which the Government servant was reduced and his seniority and pay on such restoration to that grade, post or service.” 2. The judgment cited above related to two cases in one of which a Government servant who was initially recruited as a Postal Assistant and was later promoted as UDC, while working as UDC, was reduced in rank, as a measure of penalty, to a post of LDC, which was lower in rank than the post of Postal Assistant to which he had been recruited initially. In the second case, disciplinary authority had imposed a penalty of reduction in rank reducing an officer from the post of Assistant Locust Warning Officer to which he was recruited directly to that of Junior Technical Assistant. The Supreme Court, while setting aside the penalty imposed in both cases have held that a person appointed directly to a higher post, service, grade or time-scale of pay cannot be reduced by way of punishment to a post in a lower time scale, grade, service or to post which he never held before. 3. The rulings given by the Supreme Court in the above cases may be kept in view by all disciplinary authorities while deciding cases in future. However, past cases need not be reopened in the light of the aforesaid judgment. [Deptt. of Pers. & Trg. OM No. 11012/2/88-Estts. Dated 02.02.89] Punjab National Bank Officer Employees’ (Discipline &Appeal) Regulations, 1977 Major Penalties : Regulation 4(g) : Reduction to a lower grade or Post. (6) “Reduction in rank” means reduction from a higher to a lower rank or post in the hierarchy of service to which an officer belongs and not reduction in the same rank. (P.Dhingra Vs. Union of India 1958 SCR 828 ; State of Punjab Vs. Shri Kishan Das 1971 I LLJ 271) (7) Imposition of Penalty disproportionate to misconduct is violative of Article 14 of the Costitution. The penalty imposed must be commensurate with the gravity of misconduct, and any penalty disproportionate to the gravity of misconduct would be violative of Article 14 of the Costitution of India. (Bhagat Ram Vs. State of H.P., 1983(2) SLJ 323 (SC)(2 Judge Bench) (8) A Penalty not provided for in the rules or regulations cannot be imposed : A Penalty not provided for in the rules or regulations cannot be imposed . (Sankatha Prasad Pande Vs. State of UP 1957 I LLJ 265) Where forfeiture of past service was not one of the recognized penalties, such punishment could not be imposed. (G.Pattabiraman Vs. Union of India, 1987(1) SLJ (CAT) 18 Madras) ; (Ram Pat Vs. Union of India, 1984(3) SLR 756 Delhi High Court). Where punishment of “treating the entire period of suspension as leave without pay” was not one of the prescribed punishments the imposition of punishment was held illegal. (N.S.Dhamankar Vs. Cantonment Board, Belgaum, 1987-II-LLN-160 Karnataka High Court) In the banking industry the Grade, Post and Cadre are well defined which is as under : GRADE POST CADRE TEG scale VII GM Sub-ordinate TEG Scale VI DGM Clerical SMG Scale V AGM Officer SMG Scale IV RM/Chief Manager/Chief MMG Scale III Grade A MMG Scale II Grade B JMG Scale I Grade C,D,E Ref: Officer Employees’ Service Regulation, 1979 Chapter II (Regulation 4) & Chapter III (Regulation 7) Ref: Officer Employees’ Service Regulation, 1979 Chapter II (Regulation 6) & Chapter III (Regulation 7) Ref: PD Cir. No.: 1529/1996, 1565/1997, 1634/1998 & HRD Cir. No.: 115/2002, 246/2005, 258/2005, 317/2006, 335/2006, 433/2007, 593/2010 The imposition of penalty “ Reduction to lower Post i.e. from MMG Scale –II to Clerical Cadre” recently by PNB Darbhanga Circle in terms of Reg. 4(g) of PNB officer employees’ (D&A) Regulation 1977 is bad in Law. MMG Scale –II & Clerical Cadre are not POSTS, rather they are GRADES & CADRE respectively. (9) Proving of charge in departmental /domestic inquiries. In departmental enquiries the burden to prove the charges is on the department (Presenting Officer ) to prove with reference to the documentary evidence and evidence of witness and the burden can not be shifted to the charged official . (A.N.Vaidyanathan Vs. Director of Communication 1987(4) SLJ (CAT) 931 (Madras bench) When no evidence is adduced by management on a particular fact alleged against the employee, that fact will be treated as “Not proved” (Haribansh Mallick Vs Union of India, 1990(2) ATJ 268Cuttak bench ) The findings cannot be based on personal knowledge of the enquiry officer or disciplinary authority. [Mangai Vs. Director of Social Welfare (1988) 6 ATC 356 (Madras)] The disciplinary authority must confine himself to the record of the inquiry. He cannot take extraneous matter into consider( S M R Naqvi Vs Union Bank of India 1992 I CLR 551) Findings based on extraneous matters i.e.matter which is not part of evidence and on the record of enquiry –the management will be guilty of committing basic error and Enquiry report stands vitiated . Findings have to be treated as “perverse”. [P.Munuswamy Vs. Supdt. of Police, 1987(1) SLR 632 Madras: CAT ; Lakshmi Devi sugar mills limited vs their workmen (1957 I LLJ 439); Chaudhary vs union of India (1957 I LLJ 494) ; Pannalal pathak vs Elgin Mills co ltd . (1958 I LLJ 100)] (10) Regulation 6 (21) (i) of Punjab National Bank Officer Employees’ (Discipline &Appeal) Regulations, 1977. The regulation 6 (21) (i) states : “on the conclusion of the inquiry the Inquiring Authority shall prepare report which shall contain the following : a) a gist of articles of charge and the statement of the imputation of misconduct or misbehavior; b) a gist of the defence of the officer employee in respect of each article of charge; c) an assessment of the evidence in respect of each article of charge; d) the findings on each article of charge and the reasons therefor ”. Note: In most of the inquiry reports submitted by the inquiring authorities it has been observed that although they are giving their findings on each charges under imputation of lapses/irregularities (Annexure II ) but their report lacks in assessment of the evidence & the findings on each article of charge with the reasons therefor (Annexure I) which ultimately weaken the prosecution’s/bank management’s case before the court of law. (11) An error of judgment does not amount to a violation of Reg. 3(3) of Bank (D&A) regulation 1977. If an officer has made an error of judgment, it does not amount to a violation of Reg. 3(3) of Bank (D&A) regulation 1977, as an error of judgment cannot be culpable. ( Calcutta High Court : Debasis Das Vs. Canara Bank : 1992 II LLJ 697 = 1992 DLJ (Enq)185 ) (12) Transfer by way of Punishment. Charge Sheet + transfer for the same reason by way of punishment cannot be made. (Allahabad HC : State of UP Vs. Jagdeo Singh 1987 Suppl.SCC 413) followed by (Allahabad HC : RM SBI Vs. Avtar Singh : 1992 DLJ (Enq) 178) The Bank not only chargesheeted the concerned workman for the alleged acts of misconduct but also transferred him for the same reasons. The Allahabad High Court held that transfer by way of punishment is not permissible. Compiled by: S.M.M.Rehman M.Sc, M.B.A.(Finance), LL.B, LL.M, C.A.I.I.B. Financial Advisor & Legal Consultant ; Advocate Patna High Court ; Chairman: S.Educational & Social Welfare Trust. (A Non Government Organisation) (Formerly Senior Manager, Punjab National Bank) Email : smmrehman@gmail; smmrehman@ymail; smmrehman@rediffmail
Posted on: Sat, 01 Feb 2014 06:33:52 +0000
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