R.K.Choudhary, J.

(1) This is an application under Article 226 of the Constitution of India for issue of a writ in the nature of certiorari quashing the order of discharge passed against the petitioner which was communicated to him by letter dated the 28th of August, 1956 written by Mr. S. K. Ghosh, Agent, State Bank of India, Gaya Branch, which is annexure E to the petition. The petitioner was first employed by the Imperial Bank of India as a teller on the 1st January, 1942 and in December, 1953 he was promised to be an assistant to the head cashier. The head cashier was on leave from 2nd January, 1956 to 29th February, 1956 and during his absence the petitioner was appointed to act in his place as the head cashier. There appears to have been some trouble between the petitioner and some members of the cash department staff. The petitioner states that he apprehended planning of some mischief by the staff of the cash department against him. He, therefore, wanted to be relieved from his responsibilities of a head cashier and requested the Agent to take over the keys of the cash from him. Admittedly, the Agent did not accept the keys from him as according to him, it would have been contrary to the banks instructions and the petitioner was asked to carry on the work of the head cashier until the head cashier returned from leave. It appears that after this incident the petitioner worked normally without any hitch on the next day, that is, on the 23rd February 1958, but on the 24th February 1956, he absented himself from the bank without any notice. He however, came to the bank at about 3 P. M. on that date and ultimately on the next day he placed the keys on the table of the head cashier. The petitioner however, sent an application to the Agent in the evening stating that he had started from his house on the 23rd February 1956, to come to the bank but had gone in another direction in a fit o mental aberration. According to the Agent, he got him examined by the bank doctor on the same day who stated that the petitioner was not found to have anything abnormal except nervous tachycardia. It further appears from the counter affidavit filed by the Agent that on enquiry he discovered that in fact there was a previous history of mental instability of the petitioner and that after the incident referred to above he had been admitted to the Mental Hospital at Ranchi on the 6th April 1956, from where he was discharged on the 30th May 1956.

(2) The petitioner in his letter dated 1st June 1956, which is marked as exhibit F to the above counter affidavit, stated that he did not remember anything since 21st February 1956, as he was mentally unbalanced and had no control over his brain. Be that as it may, the petitioner was suspended on the 3rd March 1958 until further orders. Thereafter on 22nd of March, 1956, a detailed charge-sheet was submitted on him and he was required to show cause why disciplinary action should not be taken against him on any or all of those charges. Later on, by letter dated 9th of June, 1956, the petitioner was informed that an enquiry would be held on the 22nd of Tune, 1956, with regard to the charges referred to above by Mr. K.S. Basu, the Staff Officer, and an enquiry was actually held by the said officer on that date in which he was represented by the Assistant General Secretary of the State Bank of India Staff Association in accordance with his request. On report being submitted, the Secretary and Treasurer recommended to the local Board of the State Bank of India to discharge the petitioner from banks service by paying him a months pay and allowance in lieu of notice, and the Local Board of the State Bank of India decided in accordance with that recommendation to discharge the petitioner. The aforesaid Agent, Mr. S. K. Ghose, thereupon informed the petitioner of the above decision by letter dated the 28th of August, 1956, referred to above. It appears that the petitioner preferred an appeal against the discharge order but it did not prove to be fruitful. The petitioner has thus made this application for issue of a writ as stated above. The opposite party, namely, the Agent, State Bank of India, Gaya Branch, was asked to show cause why the discharge order should not be quashed and cause has been shown by filing a counter-affidavit by him, a reference to which has already been made above.

(3) The first ground on which the petitioner based his case for issue of a writ is that he was holding a permanent civil post under the Union Government and that the order of discharge has been made in voilation of the provisions of Articles 311, and 320 of the Constitution of India. The State Bank of India is a corporation incorporated under the State Bank of India Act (Act 23 of 1955) to take over the undertaking of the Imperial Bank of India. Sub-section (2) of Section 3 of that Act enacts that the Reserve Bank together with such other persons as may from time to time become share-holders in the State Bank in accordance with the provisions of this Act, shall so long as they are share-holders in the State Bank, constitute a body corporate with perpetual succession and a common seal under the name of the State Bank of India, and shall sue and be sued in that name. It is, therefore, contended on behalf of the opposite party that the petitioner could not be said to have held a civil post under the Union Government and Arts. 311 and 320 of the Constitution of India, have no application. The contention is perfectly correct and must prevail as being supported by a Bench decision of this Court in Subodh Ranjan Ghosh v. Sindri Fertilisers and Chemicals Ltd., AIR 1957 Pat 10 [LQ/PatHC/1956/97] (A), in which it was held that the Sindri Fertilisers and Chemicals limited Company is a separate legal entity, has separate legal existence and is a different person altogether, from the subscribers to the memorandum, namely, the President or the Secretary to the Government of India, and that in the eye of the law it is not the agent of the Union Government or trustee for them, and therefore, Arts. 311 and 320 of the Constitution of India have no application to the case of the servants of that company. It may be stated that in view of the above decision Mr. Ghosh appearing for the petitioner did not press this point.

(4) It is, however, contended by him, that, though the above articles in terms do not apply to the case of the petitioner, but their principle as having been embodied in the Sastri Award is applicable to his case. It may be noted that an award called Sustri Award dated the 5th March 1953, was made by the All India Industrial Tribunal (Bank Dispute) under the Industrial Disputes Act, which is binding both on the State Bank of India and the petitioner. In paragraph 521 (10) (a) of that award provisions have been made for submission of a charge sheet clearly setting forth the circumstances appearing against the employee against whom disciplinary action is proposed or likely to be taken and for a hearing to be given to him as regards the nature of the proposed punishment in case any charge is established against him. It is undisputed in this case that no such hearing was given to the petitioner. It has, therefore, been contended by Mr. Ghose that the discharge order is bad in law and without jurisdiction. True, it is that under the above award, if a punishment has to be inflicted on an employee by way of disciplinary action against him, he is entitled to be given a hearing as regards the nature of the proposed punishment. But on behalf of the opposite party it has been contended that in this case the order of discharge, under the terms of the above award itself, does not amount to a punishment under disciplinary action. Reference has been made to Clause (c) of para. 521 (10) of the award which runs as follows:

"In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the gross type he may be merely discharged, with or without notice or on payment of a mouths pay and allowance, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reasons, or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases "shall not be deemed to amount to disciplinary action".

It is contended on behalf of the opposite party that in, the present case in view of the mental condition of the petitioner it could not be safe to retain him in services of the bank and the Secretary and Treasurer while recommending for his discharge to the Local Board considered this aspect of the case but in view of the fact that he had put in 14 years service and his previous record was satisfactory recommended that he should instead of being immediately dismissed be only discharged on payment if a months pay and allowance in lieu of notice. This will be manifest from a passage in the recommendation letter which runs as follows :

" .... as there can be no certainty of the non-recurrence of such attacks in future, it will be grave risk to keep him any longer in the Banks employment. We have fully considered the circumstances of the case and are convinced that he cannot be retained in the Banks service as a cashier or in any other capacity and that his gross misconduct as proved at the enquiry warrants his immediate dismissal. In view, however, of the fact that he has put in 14 years service and that his previous record is satisfactory we propose, subject to your approval, to discharge him from the Banks service by paying him a months pay and allowance in lieu of notice; this would be permissible in terms of para. 521 (5) (e) read with para. 521 (10) (c) of the Sastry Award."

(5) It has, therefore, been contended on behalf of the opposite party that the order of discharge does not in view of para. 521 (10) (c) amount to a punishment under a disciplinary action and, therefore, the question of giving the petitioner a hearing as regards the nature of the proposed punishment does not arise. In my opinion, the argument put forward is well founded and must prevail. In reply to the above argument, however, it has been contended on behalf of the petitioner that the passage quoted above in the recommendation by the Secretary and Treasurer itself makes it perfectly clear that the order of discharge was made in terms of para. 521 (5) (e) read with para. 521 (10) (c) of the above award, and reading these two paragraphs together there can be no room for doubt that the order of discharge was by way of punishment on disciplinary action. Paragraph 521 (5) (e) states that an employee found guilty of gross misconduct may have his misconduct condoned and be merely discharged. Provision of para. 521 (10) (c) has already been quoted above. Beading these two paragraphs together, I am unable to accept the contention put forward on behalf of the petitioner. Under para. 521 (5), (e) the order of discharge has to be passed after condoning the misconduct and, once the misconduct is condoned, there is no question of punishment. Similarly, under para. 521 (10) (c) the misconduct may be condoned where sufficiently extenuating circumstances exist, and if that misconduct is of the gross type the employee is only to be discharged, the order of discharge, in such a case not being deemed to amount to disciplinary action, Mr. Ghosh, however, has argued that the provisions that discharge in such cases shall not be deemed to amount to disciplinary action does not relate to the case where misconduct is condoned but to the case where evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. In my opinion, such an interpretation of the above provision is unwarranted by the words used therein. That clause deals with two kinds of cases, namely, (i) where misconduct has to be condoned for certain extenuating circumstances and (ii) where evidence is found to be insufficient to sustain the charges. The use of the words such cases in the last sentence of that clause makes it perfectly clear that this provision is for both the kinds of cases. Had it been only for the case where the evidence is found to be insufficient, the word cases could not have been used.

(6) On consideration of the facts and circumstances of the case as well as the recommendation of the Secretary and Treasurer--to the Local Board for making an order of discharge and the provisions of the Sastri Award, it is clear that the order of discharge in the present case does not amount to any disciplinary action, and, therefore, the question of violation of the provisions of para. 521 (10) (d) entitling the petitioner to be given a hearing as regards the nature of the proposed punishment does not arise in this case. This contention put forward by the learned counsel for the petitioner is, therefore, rejected.

(7) It has next been contended that the right of appeal has been denied to the petitioner inasmuch as he preferred an appeal against the order of discharge but nothing appears to have been done ia regard to it. Paragraph 521 (12) of the Sastri Award makes it perfectly clear that an employee is entitled to prefer an appeal against an order passed in disciplinary matters. But it has been rightly contended on behalf of the opposite party that, in view of the fact that the order of discharge did not amount to disciplinary action, there could be no question of going up in appeal against that order. It has been further contended on behalf of the opposite party that on the own petition of the petitioner this contention should be rejected in limine because in para. 23 of the petition it has been stated that the petitioner preferred an appeal against the discharge but that was not granted.

(8) It has also been contended on behalf of the petitioner that there has been violation of natural justice in this case as a copy of the enquiry report, though asked for, was not supplied to the petitioner, although he was entitled to it under the Sastri Award. For the reasons given above for rejecting the contentions regarding a hearing being given in respect of the proposed punishment and the denial of the right of appeal this contention is also rejected.

(9) The next point taken by Mr. Ghosh on behalf of the petitioner is that there is nothing on the record to show that the local Board of the State Bank of India approved of the recommendation made by the Secretary and Treasurer for discharging the petitioner and in absence of such an approval the order is bad in law. In paragraph 13 of the counter affidavits, however, the opposite party has stated on oath that upon a consideration of the enquiry officers report the Local Board of the State Bank of India at Calcutta decided to discharge the petitioner in accordance with recommendation of the Secretary and Treasurer dated 21st of August 1956- This statement has not been controverted, on behalf of the petitioner in his reply to the counter affidavit wherein he only mentions that he had no knowledge of the above fact and that the above decision of the local Board of the State Bank of India was never communicated to him. This contention, therefore, also fails.

(10) The last contention put forward on behalf of the petitioner is that in this case no order of discharge should have been passed because all the charges levelled against the petitioner were cancelled. In support of this contention, reliance has been placed on annexure D attached to the petition, which is a letter from the opposite party to the Secretary, State Bank of India Staff Association, Gaya. It is stated therein that under instructions from Mr. K.S. Basu, Staff Officer, (Agent, Patna branch) all the memos issued by him against the staff during his period he treated as withdrawn. It is contended that the charge-sheet, annexure, B dated 22nd of March 1956, is headed as memorandum1 and all the memos including the above memorandum were withdrawn, as referred to in that letter. In reply to this argument, it is stated on behalf of the opposite party as he has been put in in paragraph 24 of the counter affidavit that in the case of minor shortcomings or misconduct of an employee where the bank does not intend to take any disciplinary action against him beyond drawing his attention to the act and cautioning him, such communication and cautioning is done in writing upon stationary bearing the heading Memorandum and hence this specific type of communication has acquired the nomenclature Memorandum in the departmental practice of the bank, and that it was in this sense that the expression all the memos issued by him (the opposite party) against the staff was used in his letter dated 23rd June 1956, and the same has no reference whatsoever to the chargesheet which was issued to the petitioner. On behalf of the petitioner, however, it has been argued that no document has been produced by the opposite party in the present case to show that at the time when the above letter was written there was any memorandum issued against any person other than the petitioner and as such the contention put forward by the opposite party should not be accepted. But from the own petition of the petitioner, it appears, that several memorandums had been issued against the staff by the opposite party as will appear from paras. 20 and 21 of his petition which are as under :

"20. That in the meantime the Trade Union of the employees had negotiations with the authorities regarding the memorandums issued against the staff by the Agent of Gaya Branch including those issued against the petitioner. 2

1. That by his letter dated the 23rd of Tune 1956, the Agent of Gaya, Branch of the State Bank of India informed the Secretary State Bank of India Staff Association, Gaya that all memorandums issued by him (The Agent) against the staff were withdrawn."

Thus according to the petitioner himself, several memorandums had been issued against the staff including one against the petitioner, and, in that view of the matter, the contention put forward on his behalf cannot be accepted.

(11) For the reasons given above, it is clear that the petitioner has not been able to make out a case for issue of any writ under Article 226 of the Constitution of India and there is no merit in his application. It is accordingly dismissed with costs, hearing fee Rs. 100.00.