Dr. (Mrs.) Usha Wadhwa vs The Reserve Bank Of India, Shree ...
2006 Latest Caselaw 1938 Del

JUDGMENT

J.M. Malik, J.

1. In this writ petition, the petitioner has called into question the disciplinary proceedings dated 01.07.2002, dismissal order dated 24.04.2003, the Appellate Authority order dismissing the appeal dated 24.12.2003 and she has further prayed that she be reinstated with full arrears of salary, allowances, continuity of services and all other consequential benefits which she would have earned if she had not been illegally dismissed. The petitioner was appointed as part time lady Bank Medical Officer vide letter of appointment dated 05.06.1982. In the agreement, it was stipulated in para X that the appointment of the petitioner would be terminable on three months notice on either side or three months pay in lieu thereof. She was also permitted to carry out private practice. It was further stipulated in para XII, "You will be entitled to avail yourself of leave on full remuneration for 20 days in a year cumulative up to one month. You will make substitute arrangements acceptable to the Bank during your leave period as also when you are not in a position to attend the dispensary."

2. On 22.05.2002, Ramesh Chandra, Regional Director, Reserve Bank of India issued a show cause notice wherein the petitioner was required to explain her unauthorized absence from work for a total number of 178 days on 81 occasions between 01.01.1999 to 31.03.2002 in breach of Regulation 39 of R.B.I. (Staff) Regulations, 1948 and as to why the disciplinary action should not be initiated against her under Regulation 47 and as per the terms and conditions of the letter of appointment dated 05.06.1982.

3. Chargesheet dated 01.07.2002 was given to the petitioner. The paras germane to the present controversy are reproduced as follows:

You are hereby informed that in the circumstances stated in paragraph 4 below, the charges as set out in paragraph 5 have been framed against you.

3. It has been reported that you are in the habit of absenting yourself unauthorisedly and applying for leave disproportionate to your accumulated leave in violation of condition No. (xii) of the above mentioned appointment letter. In the connection, you were repeatedly advised verbally as well as in writing by Bank. Later, two charge sheets dated 29.10.1996 & 23.07.1999 were issued to you for having committed breach of Regulation 39 of the Reserve Bank of India (Staff) Regulations, 1948 and terms and conditions of your appointment by your irregular attendance and remaining absent unauthorisedly from duties. The charges were proved against you and you were punished in both the charge sheets.

4. It has now been reported again that you have absented yourself unauthorisedly for a total number of 178 days on 81 occasions between the period 01.1.1999 to 31.03.2002 as per details shown in Annexure A. On almost all occasions you did not take prior sanctioned leave and absented yourself unauthorisedly. Out of 81 applications only 28 are dated by you. Of these 15 were received late. You were, however, advised vide bank's letter ND RDS. No. 8813/Staff/Misc./2000-01 dated 07.06.2001 to improve your leave record, but to no effect.

5. You are, therefore, charged with having committed breach of Staff Regulations 39 of Reserve Bank of India (Staff) Regulation 1948 and also the terms and conditions of your appointment by your irregular attendance and remaining absent unauthorisedly from your duties.

4. In her reply dated 17.07.2002, the petitioner mentioned as under:

As no specific period is mentioned therefore, it was my pleasure to accept this letter as I being a consultant gynecologist in private practice, so that whenever I am not in a position to attend I can send substitute.

She further explained that she had sent substitutes and had sent leave applications. Again, the leave was applied for the genuine cause of sickness.

5. The enquiry report mentioned as under:

It had been reported that the CSO was in the habit of absenting herself unauthorisedly and applying for leave disproportionate to her accumulated leave in violation of condition No. (xii) of her appointment letter No. MGR 13130/MS 6(16)/82-83 dated 5th June, 1982. In this connection, she was repeatedly advised verbally as well as in writing by the Bank vide various written communication including two charge sheets dated 29.10.1996 and 23.07.1999 for having committed breach of Regulation 39 of RBI (Staff) Regulation, 1948 as well as terms and condition of her appointment (advised vide letter as ibid) It had been further reported that she had absented herself unauthorisedly for a total period of 178 days on 81 occasions during the period 1.1.1999 to 31.3.2002 as per details shown in Annexure to the charge sheet dated 1st July, 2002. On almost all the occasions the CSO did not take prior sanctioned leave and absented herself unauthorisedly. She had not even cared to mention any date on 53 applications and 15 applications were received post-fact.

It is further stated that:

The CSO did not produce any evidence or witness in support of her defense.

6. The findings of the competent authority read as under:

I find that charge-sheeted officer has been in the habit of absenting herself unauthorisedly from her duties and availing of leave disproportionate to her accumulated leave in violation of Regulations 39 of the Reserve Bank of India (Staff) Regulations, 1948 and the terms and conditions stipulated at para (xii) of Bank's offer of appointment letter No. MGR 13130/MS. 6 (16)-81-82 dated 5.6.1982 which was accepted by her on 16.6.1982.

It was further pointed out:

The abnormally long period of absence of the charge sheeted officer had been regularised by the Bank by grant of Extra Ordinary leave not counting towards increments/pension for a total period of 44 months and 27 days till 1.2.1999 since her joining the Bank in July, 1982.

7. The argument urged by the learned Counsel for the petitioner has the following three prongs. Learned Counsel for the petitioner pointed out that the petitioner was required to defend the charges of paragraph number 4 and 5 only. She vehemently argued that the word 'habit' found no place in paragraph number 4 of the chargesheet dated 01.07.2002. It is alleged that the word 'habit' has been deliberately introduced into the findings dated 08.11.2002 in order to justify the extent and gravity of the harsh penalty which had been sought to be imposed. It is pointed out that consideration of other circumstances would certainly go a long way to prejudice the interest of the petitioner. The order was passed on extraneous circumstances which were not mentioned in the charges.

9. All the arguments advanced by the learned Counsel for the petitioner are devoid of force. Paragraph number 3 of show cause notice quoted above clearly goes to show that the parties were not supposed to lead evidence on the matters which had already been settled/adjudicated. The paragraph number 3 clearly, specifically and unequivocally states that the previous charges were proved against her and she was punished in both the chargesheets. The petitioner did not deny these facts. There lies no rub in mentioning the previous conduct of the petitioner in new allegation set up against her. The charge is to be read as a whole and not in vacua to the benefit of one and to the detriment of another. It was made clear that charge number 3 already stands proved against her and the parties were to lead evidence on charge number 4 only. Since all the three charges stood proved, therefore, the enquiry officer rightly and legally came to the conclusion that she had become habitual in absenteeism. I see no flaw in the order passed by the authority.

10. Second submission made by the learned Counsel for the petitioner was that she had moved an application dated 02.06.2003, wherein she had asked for supply of copies of various attendance records. She argued that those records were not supplied to the petitioner and, therefore, she could not defend herself properly.

11. It is desirable that one should not juggle with facts. There is a catch in her argument. It appears that attempts were made to obfuscate the real issue. It is apparent that this application was not moved before the enquiry officer. This is dated 02.06.2003, whereas the dismissal order was passed on 24.04.2003. This application was moved after she was dismissed. Consequently, this application does not carry weight in the eyes of law. One of the defenses set up by her was that she was advised over phone by Mr. S.R. Garg on behalf of the Regional Director to resign from the Bank services. She did not take any step to produce Mr. S.R. Garg to prove this contention. In her reply dated 29.11.2002, she explained, "I was submitting the applications well in time but they were always lost by Mr. S.K. Chawla in Medical Section, even the duplicates were lost again and again." She did not take the trouble to produce Mr. S.K. Chawla in the witness box. Final order dated 24.04.2003 reveals, "The argument of the chargesheeted officer that her leave applications were lost in the Medical Section by Mr. S.K. Chawla cannot be believed in view of the fact that Mr. S.K. Chawla, Assistant Manager was not posted in the Medical Section of the Bank during the period under circumstances/review in the present chargesheet." It is, thus clear that the argument urged by the learned Counsel for the petitioner is without dimensions.

12. The last submission made by the learned Counsel for the petitioner was that the penalty imposed upon the petitioner is disproportionate to the offence committed by the petitioner. In support of her case, she has cited an authority reported in Ex-Naik Sardar Singh v. Union of India and Ors. , wherein it was held that punishment must be commensurate with the gravity of the misconduct. In this case, the army Jawan was carrying more than the permitted wine bottles issued from army canteen. He was awarded punishment of three months rigorous imprisonment and dismissal from service. It was held that there is arbitrariness in awarding the punishment to the appellant and ends of justice will sufficiently be met if a lesser punishment is awarded.

13. The above cited authority does not apply to the facts of this case. It is well known that medical profession is a noble and dignified profession. A Doctor is sometimes equated with God. John Owen has opined:

God and Doctor we alike adore.

But only when in danger, not before.

The danger over both are alike requited.

God is forgotten and the Doctor slighted.

14. In persons grafted in serious trust, negligence is a crime. It is regrettable that the petitioner went on leave without sending applications to the concerned authority. In the instant case, this is indisputable fact that previously the petitioner was punished on two occasions for the similar charges. She is an obdurate absentee. The view taken by the disciplinary authority is, thus, justified.

15. In a recent authority reported in State of Rajasthan v. Mohammad Ayub Naz 2006 (1) SLR 832, the Constable remained absent for three years. Punishment of removal from service was held not to be disproportionate. After having subjected the evidence to a closet scrutiny, I find that the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. All these facts neatly dovetail with the observations made by the Apex Court in case reported in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386. It is well settled that the High Court while exercising the power of judicial review cannot formally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof. This view finds support in cases reported in B.C. Chaturvedi v. Union of India and Ors. ; V. Ramana v. A.P. SRTC and Ors. 2005 (5) SLR 752 (SC) and Bank of India etc. v. T.S. Kelawala and Ors. etc. .

16. The appointment letter dated 05.06.1982 is a document of infinite importance. In paragraph number (x), it was specifically stated that the appointment of the petitioner would be terminable on three months notice on either side. Again, it is apparent that she did not adhere to the stipulation No. (xii) of the appointment letter. I am of the considered view that she has no legal right to remain in the service.

17. In the light of the above discussions, I find that the writ petition is without merit and the same is, therefore, dismissed. However, there shall be no order as to costs.