RE: Legal Opinion in respect of Disciplinary Action against Mr. x, Junior Assistant Vice President (former) of Bank 1.
We refer to your letter no. ………….. dated March 08, 2007 and letter no. HRD: 2007/4372 dated March 21, 2007 and our letter no. ……………….. dated March 20, 2007on the above subject.
From perusal of your letter and the provided documents it appears that, Mr. x, Junior Assistant Vice President joined the Services of BANK 1 vide appointment letter dated June 01, 2004 and was posted in Bank 1’s ……… (“BANK 1”) with effect from June 19, 2004 and continued at BANK 1 upto December 14, 2006.
Mr. x submitted his letter of resignation on December 14, 2006 surrendering 03 (three) months basic pay as per BANK 1 Employees Services Rules and Regulations (“Service Rules”). BANK 1 vide their letter dated 14 December, 2006 informed Mr. x that he is under investigation for being connected with and aiding Mr. y in committing irregularities and BANK 1 also instructed Mr. x to resume duties instead of remaining absent unauthorisedly. But, Mr. x remained unauthorised absent from his duties since December 17, 2006 (December 15 and 16 being holidays).
In the meantime, the Management of BANK 1 Charge Sheeted Mr. x vide their letter dated December 18, 2006. Mr. x submitted his reply dated December 26, 2006.
The Management of BANK 1 found his reply unacceptable and appointed an Enquiry Officer to probe into the Charges against Mr. x. The Enquiry Officer enquired the matter and submitted his report of findings vide letter dated February 11, 2007. The following charges were established in the enquiry report:
a) Mr. x did not exercise due diligence in a proper manner in protecting the BANK 1’s interest by informing the higher authority of BANK 1 of the irregularities of the then Branch Manager.
b) Mr. x remained unauthorised absent after payment of notice pay and violated the provision under Rule 1.00 (i) of Part I, D – Resignation of the Service Rules which states that mere payment of notice pay by an employee shall not amount to acceptance of his resignation and shall not entitle him to remain absent from attending office.
In these circumstances, you have requested us to give our legal opinion as to what disciplinary action BANK 1 should take against the accused.
From perusal of the provided documents, it appears that, the first six stages of disciplinary proceedings contained in Rule 2.00 of Part II, B – Rules of Disciplinary Proceedings of the Service Rules has been complied with by BANK 1. Now, BANK 1 has to carry out the last two stages, i.e. decide an appropriate penalty to commensurate with the gravity of the offence committed by Mr. x and impose that penalty.
On perusal of the enquiry report dated February 11, 2007, it appears Mr. x was found not guilty in two of the major allegations against him but was found guilty regarding two relatively minor allegations, which are: Mr. x’ s repeated failure to exercise due diligence in a proper manner in protecting the BANK 1’s interest by informing the higher authority of BANK 1 of the irregularities of the then Branch Manager, and his unauthorised absence from duty.
The unauthorised absence fulfils the definition of ‘Misconduct’ as defined in Rule 3.00 of Part II, B – Rules of Disciplinary Proceedings of the Service Rules. But failure to exercise due diligence, is not clearly covered in the Service Rules, the definition of ‘misconduct’ has to be stretched to cover it.
According to Rule 4.00 of Part II, B – Rules of Disciplinary Proceedings of the Service Rules, two kinds of penalty may be imposed on Mr. x:
a) Major Penalty:
i) Dismissal from service.
ii) Forced retirement.
iii) Demotion to lower post.
iv) Recovery of loss caused by fraudulent means.
v) Termination of Service (as a measure of lesser punishment).
b) Minor Penalty:
ii) Withholding of promotion or of annual increment.
As to what disciplinary action BANK 1 should take against Mr. x, we are of the opinion that, the Management should keep in mind the triviality of the Misconducts and ensure that the disciplinary action is proportionate to the Misconducts committed.
Taking into consideration, the fact that ‘failure to exercise due diligence’ is not clearly covered in the Service Rules and also taking into account the explanation of Mr. x regarding the unauthorised absence, we are of the opinion that dismissing him from service will not be proportionate to his misconduct. We are of the opinion that BANK 1 may accept Mr. x’ s resignation and let him leave.
However, if BANK 1 decides to impose any penalty, then Mr. x should be informed about the following rights that he has under Rule 5.00 of Part II, B – Rules of Disciplinary Proceedings of the Service Rules:
a) That he has a right to submit an application to the punishment awarding authority to review the punishment afflicted to him and that he has to submit his review petition within 30 days from the date the punishment was awarded; and
b) That he has a right to appeal to a higher authority upto the Board of Directors for consideration of withdrawal of punishment and that such prayer for appeal shall have to be submitted within 45 days from the date of punishment.
If you have any further query, please do not hesitate to contact the undersigned.
For: “The Lawyers & Jurists”