Calcutta High Court (Appellete Side)
Anupam Das vs Allahabad Bank & Ors on 26 February, 2021
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Appellate Side
Present :- Hon'ble Justice Amrita Sinha
WPA No. 13189 of 2018
Anupam Das
Vs.
Allahabad Bank & Ors.
For the writ petitioner :- Mr. Samim Ahammed, Adv.
Mr. Arka Maity, Adv.
Mr. Utsav Dutta, Adv.
Ms. Saloni Bhattacharya, Adv.
For the respondent Bank :- Mr. Om Narayan Rai, Adv.
Hearing concluded on :- 22.01.2021
Judgment on :- 26.02.2021
Amrita Sinha, J.:-
The petitioner is aggrieved by the order of removal from service
passed against him by the disciplinary authority on 14th December,
2017 and the order dated 10th May, 2018, affirming the same, by the
appellate authority.
The petitioner was an employee of the Allahabad Bank. While he
was in service a charge sheet was issued against him on 15th
September, 2016. There were five Articles of Charge. Article-I: He
proceeded on leave on several occasions without submission of proper
leave application and without obtaining permission of the Competent
Authority. Article-II: He remained on unauthorized absence from duty
upto 15th February, 2016. Article-III: He remained continuously absent
from duty, in unauthorized manner, since 23rd February, 2016 till date.
Article-IV: The letter sent to his residential address on 17th March, 2016
was returned with the remark "unclaimed" and the letter sent by e-mail
was also not responded by him, though his correspondences with office
were made from the same residential address and same e-mail. Article-
V: He did not join in his transferred place of posting in violation of the
order of his superior authority and also in violation of the order passed
by the Hon'ble High Court.
The disciplinary authority was of the opinion that the aforesaid
acts of omission and commission committed by the petitioner were in
violation of Regulations 3(i) and 3(iii) of the Allahabad Bank Officer
Employees' (Conduct) Regulations, 1976 (herein after referred to as
"Conduct Regulations"), amounting to misconduct under Regulation 24
of the said Regulations.
The statement of imputation of charges mentioned in details the
days on which the petitioner remained absent unauthorizedly. The list of
documents and the list of witnesses were also forwarded to the
petitioner along with the charge sheet.
The petitioner did not participate in the disciplinary proceeding
and all the letters sent to him by the enquiry officer and the presenting
officer returned undelivered. The enquiry conducted ex parte was
completed on 24th March, 2017 and the enquiry officer submitted his
report on 31st August, 2017. The disciplinary authority on perusal of the
enquiry report and upon analysis of the witnesses put forth in the
enquiry, concluded, that all the charges levelled against the petitioner
was proved. The disciplinary authority by order dated 14th December,
2017 imposed the penalty of removal from service which shall not be a
disqualification for future employment under Regulation 4(i) of
Allahabad Bank Officer Employees' (Discipline and Appeal) Regulations,
1976 herein after referred to as the "D & A Regulations".
Aggrieved by the order passed by the disciplinary authority the
petitioner preferred an appeal before the appellate authority on 19th
January, 2018. By an order dated 10th May, 2018 the appellate
authority dismissed the appeal preferred by the petitioner and upheld
the order of the disciplinary authority.
Being aggrieved the petitioner has filed the instant writ petition.
The primary contention of the petitioner is that the charge sheet,
enquiry report, findings of the disciplinary authority and the appellate
authority does not disclose any misconduct within the meaning of
Regulations 3(i) and 3(iii) of the Conduct Regulations.
He contends that there is no allegation in the charge sheet that
his absence was either wilful or deliberate. Mere unauthorized absence
does not amount to misconduct under the aforesaid Regulations and
hence the charge sheet is vague. In support of the aforesaid contention
the petitioner relies upon the judgment delivered by the Hon'ble
Supreme Court in the matter of Krushnakant B. Parmar -vs- Union of
India & Anr. reported in (2012) 3 SCC 178 paragraphs 2, 3, 4, 14, 15,
16, 17, 18 and 19 wherein it was held that unless the absence was
wilful or deliberate the question of the action being unbecoming of the
officer or failure to perform duty does not arise at all.
The petitioner has relied upon medical documents in support of
his absence. He was suffering from medical problems and accordingly he
was not in a position to join his duties. The absence in such a situation
cannot be treated as wilful or deliberate.
The petitioner has mentioned in details the reasons for his
absence in the appeal preferred by him before the appellate authority.
He argues that none of the averments made by the petitioner has been
disputed by the appellate authority, and as such, his absence not being
wilful or deliberate ought to be condoned and the charge of misconduct
is liable to fail.
The petitioner alleges mala fide at the time of passing of the order
of transfer on 1st July, 2016 whereby the petitioner was transferred to
Siliguri.
The petitioner submits that he could not take part in the
disciplinary proceeding as the notices were not received by him. He
submits that his employer was well aware of his e-mail number and the
documents ought to have been sent to him through e-mail. Non-service
of the documents relating to his disciplinary proceeding, including the
enquiry report, has caused prejudice to him.
The petitioner contends that the respondents proceeded in a pre-
determined manner. On the very day of issuing the charge sheet the
employer had declared him to be on unauthorized leave.
According to the petitioner none of the documents relied upon by
the employer were proved by the witnesses. Regulation 6(XIII) of the D &
A Regulations mandates oral and documentary evidence to be proved by
witnesses. That not being done, the entire disciplinary proceeding is
liable to fail.
In support of the aforesaid contention the petitioner relies upon
the judgment of the Hon'ble Supreme Court in the matter of Ramji
Dayawala & Sons (P) Ltd. -vs- Invest Import reported in (1981) 1 SCC
80 paragraph 16.
The petitioner submits that neither the report of the enquiry
officer nor the disciplinary authority or the appellate authority contain
any independent findings of facts. He submits that he raised as many as
ten issues in his appeal before the appellate authority. The appellate
authority chose to deal with only issue nos. 1, 3, 8, 9 and 10 and that
too, while dealing with those issues the relevant evidences were not
considered.
In this connection the petitioner relies upon the decision delivered
by the Hon'ble Supreme Court in the matter of Allahabad Bank & Ors.
-vs- Krishna Narayan Tewari reported in (2017) 2 SCC 308
paragraph 7 wherein the Court held that in a case where the
disciplinary authority records a finding that is unsupported by any
evidence whatsoever or a finding which no reasonable person could have
arrived at, the writ court would be justified if not duty bound to examine
the matter and grant relief in appropriate cases. The Court observed
that the writ court will certainly interfere with disciplinary enquiry or
the resultant orders, if the enquiry itself was vitiated on account of
violation of principles of natural justice.
The petitioner argues that the appellate authority failed to
appreciate that the order of transfer, despite being illegal, he intended to
join his transferred place of posting, but because of health issues he was
unable to join. The appellate authority did not deny the aforesaid
averment made by the petitioner, thereby implying, that the reason for
not joining the transferred place of posting has been accepted by the
authority.
The last contention of the petitioner is that the punishment that
has been imposed upon him is highly disproportionate. As the charges
against him were vague and not even proved on evidence the
punishment is shockingly disproportionate and is liable to be set aside
by the Court.
Per contra, the learned advocate appearing on behalf of the bank
submits that on 14th September, 2015 while the petitioner was in office,
he complained of discomfort and uneasiness. The Branch Manager
immediately arranged for medical help and the petitioner was sent to the
Calcutta Medical Research Institute (CMRI). After administration of first
aid the petitioner was released by the said hospital. The petitioner
returned from CMRI and joined office on the self-same day without any
further health problem. There was no indication in the medical
documents of CMRI requiring the petitioner to take rest.
The petitioner, for no valid reason, remained absent on 15th
September, 2015 without any prior notice or intimation. A letter was,
however, sent by the petitioner on 16th September, 2015 to the effect
that on consultation with a doctor, he was advised to take rest. The
letter further indicated that he will resume his duties upon being
declared fit by the doctor.
On 28th September, 2015, after a lapse of twelve days the
petitioner returned to work and expressed his desire to join duties. As
the petitioner was not carrying the fit certificate with him accordingly,
he was advised to resume duties after he produces the fit certificate by
the doctor.
The petitioner went away and did not make any communication
with the branch till 4th October, 2015. On 5th October, 2015 the bank
requested the petitioner to submit his leave application mentioning his
probable date of joining.
On receipt of the aforesaid letter the petitioner returned to work
on 13th October, 2015 and he was allowed to join duties. The petitioner
again absented himself from work on 15th October, 2015 without any
intimation, but reported to duty on 16th October, 2015. On and from
19th October, 2015, the petitioner remained absent continuously
without any intimation. The petitioner, however, sent an email on
regular basis in the morning, intimating that he was unable to attend
office as he was unwell.
The bank by an e-mail dated 29th October, 2015 requested the
petitioner to submit his application with detailed reasons for his
absence and to intimate the expected date of his joining duty.
The petitioner by a letter dated 31st October, 2015 informed the
bank that he was unable to attend office since October 19, 2015 as he
was feeling uncomfortable, but assured that he would be joining very
soon.
By a letter dated 5th November, 2015, the petitioner informed the
bank that he would join on 10th November, 2015 but surprisingly the
petitioner did not turn up on the said date. The petitioner ultimately
joined duties on 12th November, 2015. In the meantime, the petitioner
remained absent for about twenty four days from October 19, 2015 to
November 11, 2015. He continued duty for five days and again
absented himself on 18th November, 2015. He rejoined on 19th
November, 2015 and again absented himself on 24th November, 2015.
On 25th November 2015 he joined duty but absented himself from 27th
November, 2015 without any intimation.
On 1st December, 2015 he communicated a message over the
mobile phone and intimated the Assistant General Manager of the bank
that he will join his duty on 3rd December, 2015. The petitioner,
however, did not join on 3rd December, 2015. The bank, accordingly, by
a letter dated 3rd December, 2015, requested the petitioner to explain
his present position of health and to intimate his expected date of
joining on becoming medically fit. The petitioner failed to reply to the
said letter. A further e-mail was sent to the petitioner requesting him to
intimate his probable date of joining. The petitioner thereafter informed
the bank that he was unable to join his duties due to the illness of his
wife.
The petitioner thereafter visited the branch on 16th December,
2015 and expressed his desire to join. The Assistant General Manager
of the bank requested him to provide the reasons for not replying to the
bank's earlier letter dated 3rd December, 2015 as the same was required
for onward transmission to the higher authorities. On being asked to
submit the explanation, the petitioner got highly infuriated and left the
branch after heated arguments with the Assistant General Manager.
The matter was reported by the branch office to the branch head and
the petitioner was called upon to submit his explanation for such
untoward act. The petitioner submitted his explanation by a letter dated
29th December, 2015 but he did not turn up for resuming his duties.
On 12th January, 2016 the petitioner wrote a letter to the zonal
office complaining, that though he was fit to resume duties since
December 16, 2015, he has not been able to join his duties as he did not
receive any communication or confirmation for resuming his duty. In
reply, the petitioner was intimated that he was free to report for duty
along with the medical certificate certifying his fitness. It was further
clarified that the period of his absence was being treated as
'unauthorised'.
The petitioner visited the SME Finance Branch on 16th February,
2016 along with a medical certificate dated 15th December, 2015
certifying that the petitioner was fit to resume his duties on and from
16th December, 2015. The petitioner was directed to submit his
explanation for not joining duty for such a long period of time. This
infuriated the petitioner and he started an altercation with the Assistant
General Manager of the Bank and thereafter left. The petitioner was
asked to explain his conduct by a letter dated 16th December, 2015. The
petitioner replied to the same by his letter dated 29th December, 2015.
The petitioner reported to work on 16th February, 2016 but again
failed to attend office on 20th February, 2016, but thereafter joined on
22nd February, 2016 and then remained absent on 23rd February, 2016.
On 24th February, 2016, he sent an e-mail that he was feeling
uncomfortable and needed rest for a couple of days.
By a letter dated 22nd February, 2016, the petitioner was asked to
explain the reason for not joining duties for the period 16th December,
2015 to 15th February, 2016. The petitioner was informed once again
that his absence from duties was treated as unauthorized by the higher
authorities.
By a letter dated 24th February, 2016 the petitioner intimated the
bank that he was physically prevented from joining his duties.
In the month of March 2016, being the closing of the financial
year, additional manpower was required in the Asset Recovery
Management Branch (ARMB) of the Bank to deal with the sudden work
load. The petitioner was temporarily posted at the ARMB of the Bank
situated in the first floor of the same building where the petitioner was
serving. The petitioner was sought to be served with the letter dated
March 11, 2016 intimating him about his temporary transfer, but such
attempt failed as the postal envelope addressed to the petitioner
returned unserved with the endorsement "unclaimed". The order of
temporary posting was thereafter communicated to the petitioner via e-
mail. The petitioner did not reply and/or respond to the said order of
posting.
By an order dated 1st July, 2016 the petitioner was advised to
report at the zonal office, Siliguri for receiving posting orders on 4th July,
2016 as the Competent Authority of the bank decided to transfer him
from the place where he was then posted.
The bank viewed the action of the petitioner as misconduct and
initiated formal disciplinary proceeding against him. The petitioner did
not participate in the disciplinary proceeding and ex parte order was
passed removing him from service. The petitioner preferred an appeal
against the said order but was unsuccessful.
According to the respondents, the disciplinary authority acted
strictly in accordance with the provisions mentioned in the D & A
Regulations. It has been submitted that due opportunity was given to
the petitioner to defend himself. Principle of natural justice was duly
complied with by the disciplinary authority. The petitioner, for the
reasons best known to him, did not participate in the disciplinary
proceeding. Notices were sent to the petitioner at the address registered
in the official record of the bank. The un-served letters were returned
with the endorsement 'unclaimed'. The bank made a public
advertisement in the newspapers and sought to draw the attention of
the petitioner. There was no response from his side. The bank was left
with no other alternative but to proceed and conclude the disciplinary
proceeding ex parte.
It has been argued that the scope of review in matters dealing with
the disciplinary proceedings of employees under Article 226 of the
Constitution of India is extremely limited. The Courts ought not to
interfere with the order passed by the disciplinary authority if the same
has been passed upon compliance of the provisions of law and
principles of natural justice.
The respondents rely upon the decision delivered by the Hon'ble
Supreme Court in the matter of Ram Kumar -vs- State of Haryana
reported in (1987) SUPPL SCC 582 paragraphs 7 and 8 and in the
matter of National Fertilizers Limited and Another Vs. P.K.Khanna
reported in (2005) 7 SCC 597 paragraph 9 in reply to the argument of
the petitioner that the appellate authority did not record any
independent reasons at the time of affirming the order passed by the
disciplinary authority.
The respondents also rely on the decision delivered by the Hon'ble
Supreme Court in Gujarat Electricity Board & Anr. -vs- Atmaram
Sungomal Poshani reported in (1989) 2 SCC 602 paragraph 4 and in
the matter of Tushar D. Bhatt -vs- State of Gujarat & Anr. reported
in (2009) 11 SCC 678 paragraph 18 on the issue that an order of
dismissal was permissible on the ground of not joining the transferred
place of posting.
Reliance has also been placed on the decision of the Supreme
Court in the matter of Maharashtra State Mining Corporation -vs-
Sunil reported in (2006) 5 SCC 96 paragraphs 2, 3, 7, 8, 9 and 10.
On the issue raised by the petitioner that the documents placed
before the disciplinary authority was not proved in the manner required
to be done, the respondents relies upon the judgment delivered by the
Hon'ble Supreme Court in the matter of Union of India -vs- H. C. Goel
reported in AIR 1964 SC 364 paragraph 23, G.M. (Operations) S.B.I. -
vs- R. Periyasamy reported in (2015) 3 SCC 101 paragraph 10, Union
of India -vs- P. Gunasekaran reported in (2015) 2 SCC 610 and State
of Tamil Nadu & Ors. -vs- S. Subramaniam reported in (1996) 7 SCC
509.
In reply to the contention of the petitioner that the charges
mentioned in the charge sheet did not include the charge of absence, it
has been submitted that there are sufficient charges in the charge sheet
clearly indicating unauthorised absence from work. The petitioner was
all along aware of all the charges levelled against him. His devotion and
sincerity towards his duty were lacking. In such a situation the non-
recording of the appropriate Regulation dealing with absence will not
make the charge sheet bad. In support of the aforesaid contention the
petitioner has relied upon the decision of the Hon'ble Supreme Court in
the matter of Union Bank of India -vs- Vishwa Mohan reported in
(1998) 4 SCC 310.
The respondents pray for dismissal of the writ petition.
I have heard and considered the submissions made on behalf of
both the parties.
The petitioner was an officer employee of the Allahabad Bank.
The service of the petitioner was a transferable one. The petitioner on
14th September, 2015, fell sick and had to be administered medical
treatment. The petitioner reported to work on 13th October, 2015 but
absented himself on the 15th October, 2015 without giving any prior
intimation. Since thereafter the petitioner intermittently remained
absent from duty, without any prior intimation, citing health reasons,
either of himself or his wife. The petitioner did not submit any formal
application for obtaining leave. In spite of giving assurance of reporting
to duty on a particular day the petitioner did not turn up for work on
more than one occasion.
It appears from records that the petitioner remained absent for
eighty one days between 27th November, 2015 to 15th February, 2016
without submitting any proper application for leave.
According to Regulation 13 (1) of the Conduct Regulations no
officer employee shall absent himself from his duty or be late in
attending office or leave the station without having first obtained the
permission of the Competent Authority. In case of unavoidable
circumstances, where availing of prior permission is not possible or is
difficult, such permission may be obtained later, subject to the
satisfaction of the Competent Authority.
It appears in the instant case, that the petitioner absented himself
from work without obtaining prior permission of the competent
authority for days together. The petitioner forwarded a message via
email in the morning intimating that he would not be able to report to
duty as he was not feeling comfortable. The discomfort of the petitioner
was not backed up by medical reports. An officer of the bank ought not
to absent himself from duty without any cogent reason. As the petitioner
claimed that he was unwell, he ought to have submitted proper
application(s) for leave along with supporting documents.
An employee ought to appreciate that he has been
appointed/employed for a particular purpose, for performing certain
assigned jobs. Not reporting to duty means that the work which is
assigned to the employee has to be performed by some other person, as
the work of a public authority ought not to be kept pending on account
of absence of an employee. The bank in such a case would have been
answerable, if the work is not performed or completed within the
specified time limit. If an employee remains absent from office without
giving any prior intimation then it becomes difficult for the employer in
the matter of proper administration of the institution. The requirement
of prior intimation is for the sole purpose of putting the employer on
notice of the absence, so that the work may be assigned to some other
employee and is not kept pending. In the absence of proper prior notice,
the employer will not be in a position to assign the work to any other
person.
The petitioner was handling the foreign exchange services of the
bank. Non-reporting to work in such an important department certainly
caused inconvenience to the bank. The petitioner by a letter dated 29th
December, 2015 addressed to the Assistant General Manager of the
bank intimated him that there was huge work load and he had verbally
requested to reduce his work load. Being aware of the fact that he was
holding a responsible post, the petitioner ought not to have taken his
duty in such a casual and cavalier manner.
The bank initiated a disciplinary proceeding against the petitioner
on account of certain irregularities committed by him. There were as
many as five charges mentioned in the statement and articles of charge
framed against him. Three out of the five charges relates to his absence
from work without obtaining prior permission and without submission
of proper leave application. A further charge of not joining his
transferred place of posting in violation of the order passed by the High
Court, Calcutta has also been levelled against him. According to the
bank, the same amounts to misconduct.
The petitioner has challenged the same, as according to him, the
Regulation dealing with absence was not specifically mentioned in the
articles of charge issued to him. The charge sheet mentioned violation of
Regulations 3(1) and 3(3) of the Conduct Regulations. However,
Regulation 24 relating to misconduct has also been mentioned in the
articles of charge.
Regulation 24 of the aforesaid regulations mentions that a breach
of any of the provisions of the Regulations shall be deemed to constitute
misconduct punishable under the Regulations. The charges levelled
against the petitioner clearly mention the fact of his remaining absent
from office, without any valid permission and without submitting any
documents. The same is in violation of Regulation 13, which certainly
amounts to misconduct punishable under the Regulations. 3(1) of the
Conduct Regulations is a general provision which mentions that every
officer employee shall, at all times take all possible steps to ensure and
protect the interest of the bank and discharge his duties with utmost
integrity, honesty, devotion and diligence and do nothing which is
unbecoming of a bank officer.
Regulation 3(3) of the Conduct Regulations mentions that no
officer employee shall, in the performance of his official duties or in the
exercise of powers conferred on him, act otherwise than in his best
judgement except when he is acting under the direction of his official
superior.
The aforesaid provision lays down the general principles that are
required to be followed by all officer employees of the bank. The act of
the petitioner in absenting himself from work without any prior
intimation is in direct conflict with the provision of Regulation 3(1).
Being absent from work without prior intimation cause serious prejudice
to the bank and poses problems in the general administration and day
to day functioning of the bank. The same is not in the interest of the
bank, but is against the bank's interest. Not reporting to work on
frequent basis reflects the employee's lack of devotion and diligence
which is unbecoming of the bank officer.
The expression 'prior permission' as appearing in the Conduct
Regulations has to be given due importance. The service condition of the
employee requires a permission to be obtained from the competent
authority before he remains absent from work. Remaining absent from
work without taking an expressed permission from the competent
authority, in advance, amounts to misconduct as per the said
Regulations.
The petitioner has also not acted in accordance with the order
passed by his superior authority. He did not join his transferred place of
posting in compliance with the order of his superior authority. The
petitioner unsuccessfully challenged the order of transfer before this
Court. In the order dated 23rd August, 2016 passed in W.P. No. 16506
(W) of 2016 filed by the petitioner, the Court specifically records that
there is no question of staying the impugned order of transfer and the
petitioner must report to Siliguri within ten days, failing which, the bank
shall be at liberty to pass proper order including initiation of disciplinary
proceeding against him. The disciplinary proceeding against the
petitioner was initiated only after he did not comply with the direction
passed by the High Court.
The notice of show cause and the subsequent letters and notices
were communicated to the petitioner at the address which was
mentioned in his official records. The same returned unserved with the
endorsement "unclaimed". The bank has relied upon Regulation 20 of
the D & A Regulations which mention that every order, notice and other
process made or issued under the Regulations shall be served in person
on the officer employee concerned or communicated to him by registered
post at his last known address. Admittedly, the notices and the
processes of the disciplinary proceeding were communicated to the
petitioner at his last known recorded address. The same returned
unserved. The bank thereafter made a public announcement in the
newspaper. The petitioner did not respond to the same. The petitioner
tried to make out a case that the bank ought to have communicated the
notices and the processes via e-mail as the petitioner regularly
communicated with his superior officers via e-mail. The said contention
of the petitioner cannot be accepted, as the mode of service of notice has
been clearly mentioned in the D & A Regulations of the bank. Serving a
copy via e-mail may be as a supplementary communication, in addition
to the prescribed mode of communication, but the same cannot be
treated as the primary and the only mode of communication. If the
mode of communication as prescribed in the Regulations has been
followed by the employer, then the same has to be accepted as a valid
communication, irrespective of the fact whether a supplementary,
additional communication over e-mail was made or not. It was the
bounden duty of the petitioner to intimate the bank about his proper
address and his change of address. The petitioner never recorded his
present address in the official records maintained by the bank. It has
been submitted by the bank that as many as twenty letters sent to the
recorded address of the petitioner returned unserved.
The petitioner contends that as there is a separate Regulation
dealing with absence from duty (Regulation 13 of the Conduct
Regulations), the bank ought to have invoked the same and thereafter
proceeded accordingly. As the bank did not invoke Regulation 13
accordingly, the charge of absence from duty cannot be attributed to the
petitioner. It has further been submitted that the petitioner all along
provided the reason for not reporting to duty to his superior officer. The
absence was not wilful, and in the absence of a finding that the
petitioner remained wilfully absent from duty, the period during which
he did not report for duty ought not to have been treated as
unauthorized. The petitioner has relied upon the judgment delivered in
the case of Krushnakant B. Parmar (supra) in support of his
submission.
The Supreme Court in the matter of Chennai Metropolitan
Water Supply and Sewerage Board & Ors. -vs- T. T. Murali Babu
reported in (2014) 4 SCC 108 paragraph 23 has laid down that the
views expressed in the case of Krushnakant B. Parmar (supra) has to be
restricted to the facts of the said case, regard being had to the real
position, the nature of the charge levelled against the employee and the
material that had come on record during the enquiry. It cannot be
stated as an absolute proposition in law that whenever there is a long
unauthorized absence, it is obligatory on the part of the disciplinary
authority to record a finding that the said absence is wilful, even if the
employee fails to show the compelling circumstances to remain absent.
The said decision has practically denuded the precedential value of the
decision in Krushnakant B. Parmar (supra).
The petitioner has relied upon the decision delivered by the
Hon'ble Supreme Court in the matter of Roop Singh Negi -vs- Punjab
National Bank & Ors. reported in (2009) 2 SCC 570 para 14 on the
issue of proof of documents. The Supreme Court in the said matter held
that the departmental proceeding, being a quasi-judicial proceeding, the
charges levelled against the delinquent officer must be found to have
been proved. It is the duty of the enquiry officer to arrive at a finding
upon taking into consideration the materials brought on record by the
parties. Merely tendering the documents without proving the contents,
thereof will not amount to the documents being proved. The petitioner
submits that as the disciplinary proceeding was held ex-parte the
documents relied upon by the management witness were merely
tendered and not proved. Accordingly, no reliance can be placed on the
said documents.
In reply to the aforesaid contention the respondents submit that
the fact of the case of Roop Singh Negi (supra) is different from the facts
of the case at hand. It has been submitted that the documents relied
upon by the bank were the records of the bank comprising of the
attendance register, the official communications and the letters and
certificates produced by the petitioner. The said documents are of great
evidentiary value and there is no requirement for proving the aforesaid
documents separately at the time of proceeding with the departmental
proceeding. The said documents were enough proof to pass order
against the petitioner.
In this connection the respondent has relied upon the
Constitution bench judgment delivered by the Supreme Court in the
matter of H.C. Goel (supra), R. Periyasamy (supra), P. Gunasekaran
(supra), S. Subramaniam (supra) on the issue that under Article 226 of
the Constitution the High Court cannot consider the question of
adequacy or sufficiency of evidence in support of a particular
conclusion. If there is some evidence to arrive at the finding the Court
will not question the same. Here, there are evidences galore against the
petitioner.
The respondents rely upon the judgment delivered by a three
judge Bench of the Hon'ble Supreme Court in the matter of Bhavnagar
University -vs- Palitana Sugar Mills (P) Ltd. & Ors. reported in
(2003) 2 SCC 111 paragraph 59 on the issue that a decision is an
authority for which it is decided and not what can logically be deduced
therefrom. A little difference in facts or additional facts may make a lot
of different in the precedential value of a decision.
The respondents rely upon the judgment delivered by the Hon'ble
Supreme Court in the matter of Ram Kumar -vs- State of Haryana
reported in 1987(Supp) SCC 582 para 7 and 8 and the judgment of the
Supreme Court in the matter of National Fertilisers Ltd. & Anr. -vs-
P.K. Khanna reported in (2005) 7 SCC 597 para 9 wherein the Court
held that when the punishing authority agrees with the findings of the
enquiry officer and accepts the reasons in support of such finding, it is
not necessary for the punishing authority to again discuss the evidence
and come to the same finding as that of the enquiry officer and give the
same reasons for the findings. The Court held that the disciplinary
authority is required to give reasons only when the disciplinary
authority does not agree with the finding of the enquiry officer.
The respondents rely upon Regulation 7(2) of the D & A
Regulations wherein it is mentioned that the disciplinary authority shall,
if it disagrees with the finding of the inquiring authority on any article of
charge, record its reasons for such disagreement and record its own
findings on such charge. In the instant case, as the disciplinary
authority accepted and agreed with the findings of the inquiring
authority accordingly, there is no requirement for recording further
reasons for agreeing with the findings of the inquiry officer.
The Supreme Court in Gujarat Electricity Board & Anr. -vs-
Atmaram Sungomal Poshani (supra) held that whenever a public
servant is transferred he must comply with the order and failure to act
in compliance with the transfer order would expose him to disciplinary
action under the relevant rules. In the said case the respondent lost his
service as he refused to comply with the order of transfer from one place
to another. The Court was of the opinion that the respondent acted in
an irresponsible manner in not complying with the order of transfer
which led to his discharge from service.
In Tushar D. Bhatt (supra) the Court reiterated the aforesaid
contention. The Court also reiterated the settled legal position that
absence from duty without proper intimation is a grave offence
warranting removal from service.
The primary charge against the petitioner in the case at hand is
that he remained absent from service without any prior intimation, for
days together and further failed to act in accordance with the direction
given by the superior authority. By order dated 23rd August, 2016
passed in W.P. No. 16506 (W) of 2016 filed by the petitioner, the prayer
of the petitioner for staying the impugned order of transfer was
categorically refused by the Court with direction to the petitioner to
report to Siliguri within ten days, failing which, the bank shall be at
liberty to pass proper order including initiation of disciplinary
proceeding against him.
While deciding the case of T.T. Murali Babu (supra) the Court
relied upon the views expressed by the Court in the case of State of
Punjab -vs- P.L. Singla reported in (2008) 8 SCC 469 and was of the
opinion that the unauthorized absence of an employee as a misconduct,
cannot be put into a straight jacket formula for imposition of
punishment and the extent of the punishment will depend upon the
nature of service, the position held by the employee, the period of
absence and the cause/explanation for the absence.
The petitioner has submitted that the punishment imposed upon
him is highly disproportionate.
It is settled law that the Court, in review of the punishment
imposed upon an employee, is not entitled to interfere with the same
unless the punishment imposed shocks the conscience of the Court. In
the instant case, the petitioner being an officer employee of the bank
held a responsible post. He ought not to have absented himself for days
together citing trivial reasons without any supporting documents.
Forwarding a communication in the morning intimating the superior
officer that he will not attend the office as he was not feeling well cannot
be accepted to be a valid application for leave. Absenting from work for
days together without any prior intimation and without any supporting
document is certainly misconduct on the part of the petitioner.
A three judge bench of the Supreme Court in SBI -vs- Ramlal
Bhaskar reported in (2011) 10 SCC 249 made it succinctly clear that
in a proceeding under Article 226 of the Constitution the High Court
does not sit as an appellate authority over the findings of the
disciplinary authority and so long as the findings of the disciplinary
authority are supported by some evidence, the High Court does not re-
appreciate the evidence and come to a different and independent finding
of the evidence.
In the instant case, it is clearly evident that the petitioner
remained absent without any prior intimation and without supporting
documents. The explanation given by the petitioner for his absence not
being found satisfactory, disciplinary proceeding was initiated against
him. The petitioner was given several opportunities to defend himself in
the said disciplinary proceeding, which the petitioner failed to avail as
he did not receive the letters and the notices which were sent to him.
The petitioner moved out from his residential address as recorded in the
official records of the respondent authority and did not care to
incorporate his present address in the official records. The public
notices published by the bank in the newspapers were also not
responded to by the petitioner and thereby he lost the chance of
defending himself before the disciplinary authority.
The Supreme Court in the matter of Vishwa Mohan (supra)
emphasised that in the banking business absolute devotion, diligence,
integrity and honesty needs to be preserved by every bank employee and
in particular the bank officer. If it is not observed, the confidence of the
public/depositors would be impaired.
The petitioner being an officer employee of the bank ought to have
been more diligent, and should have acted in a responsible manner with
absolute devotion. The action of the petitioner does not reflect the above
qualities. The Court does not find any reason to interfere with the order
passed by the disciplinary authority duly affirmed by the appellate
authority.
The writ petition accordingly fails and is hereby dismissed.
Urgent certified photocopy of this judgment, if applied for, be
supplied to the parties or their advocates on record expeditiously on
compliance of usual legal formalities.
(Amrita Sinha, J.)
