Delhi High Court

Sita Ram Aggarwal vs Punjab National Bank & Ors. on 1 November, 2011

Author: M. L. Mehta

*              THE HIGH COURT OF DELHI AT NEW DELHI

+                       W.P.(C) No.3465/1998

                                      Reserved on: 19.09.2011
                                    Pronounced on: 01.11.2011

SITA RAM AGGARWAL                       ...... PETITIONER

                        Through:    Mr. Aprub Lal with Ms. Kumari
                                    Alka, Advocates

                              Versus

PUNJAB NATIONAL BANK & ORS.                    ...... Respondents

                        Through:    Mr. Jagat Arora with Mr. Rajat
                                    Arora, Advocates


CORAM:
HON'BLE MR. JUSTICE M.L. MEHTA

1.     Whether Reporters of local papers may be
       allowed to see the judgment?                   Yes
2.     To be referred to the Reporter or not ?        Yes
3.     Whether the judgment should be reported
       in the Digest ?                                Yes

M.L. MEHTA, J.

1. This writ petition under Article 226 of the Constitution of

India has been preferred by the petitioner for issuance of a writ of

Certiorari for quashing the order dated 31.1.1995 passed by the

Deputy General Manager Disciplinary Authority under which the

petitioner has been retired compulsorily from the service of

Punjab National Bank (PNB). The petitioner was appointed as Civil

Engineer by respondent bank on 12.4.1993 and was initially

posted to supervise the construction work of the bank at Bhikaji

Cama Palace, New Delhi. Since his work was not satisfactory, he

was not selected for the promotion in the interview held in April,

1988. He was issued a charge-sheet on 7.7.1988 on the

allegations that he failed to take possible steps to ensure and

protect the interest of the bank and did not discharge his duties

with utmost devotion and diligence and thus committed

misconduct in terms of Regulation 3(i) of Punjab National Bank

Officers and Employees (Conduct and Regulations), 1977

(hereinafter referred to as "Regulations"). He submitted a show

cause notice to the charge-sheet and also Memorandum and

letter dated 25.10.1988 and finally preferred an appeal before the

Chairman-cum-Managing Director which was turned down. Since,

interviews were held again in January-February, 1990 for

promotion, and he was not called for the same, he filed a writ

petition wherein an order was passed that any promotion made

would be subject to the final decision of the writ petition.

However, subject to the final decision of the writ petition, he was

promoted with effect from 19.7.1993. The petitioner has narrated

all these facts to allege malafide of the officers of the bank in the

subsequent charge-sheet of misconduct which was slapped upon

him while he was posted at Bhopal. On 14.9.1993, he along with

Mr. Yusuf Zia, an officer of the regional bank at Bhopal, visited

later‟s residence. The allegations against him were that he again

visited the residence of Mr. Yusuf Zia on 16.9.1993 at about 1.30

pm when his mother Mst. Mehfuza Begum was alone and he tried

to molest her. He was served with a show-cause notice on

18.9.1993 to explain his visit to the residence of Mr. Yusuf Zia and

about his misconduct with his mother. In his explanation, he

denied about his visit on 16.9.1993 and stated that he had visited

the residence of Mr. Yusuf Zia on 14.9.1993 after several requests

by him. He also explained that as per advice of the doctor, he was

on bed rest for 16.9.2003. Since the petitioner did not attend

office after 16.9.1993, he was also charge-sheeted of misconduct

for having left the office without obtaining the prior permission of

the competent authority and for absenting himself from duties

unauthorizedly.

2. The petitioner has been served with the charge-sheet with

the undermentioned charges:

"Charge-I

He acted in a highly indecent and immoral manner prejudicial to the interest of the Bank.

1. On 14.9.93, at about 7 pm, Shri Agarwal visited the residence of one Shri Yusuf Zia, Officer in JMG Scale-I, posted at Regional Office, Bhopal at 2/7, MIG Ankur Complex, Bhopal. Shri S.R. Agarwal was introduced to Smt. Mehfuja Begum, mother of Shri Yusuf Zia, as a senior officer of the bank.

On 16.9.93, Shri Agarwal taking undue advantage of the introduction and knowing fully well that Smt. Mehfuja Begum would be alone at home, went to the residence of Shri Zia at about 1.30 pm with the immoral intention of outraging her modesty. Shri Agarwal rang the Calling Bell of the flat and gained entry. On being enquired by Smt. Begum about the purpose of Shri Agarwal's visit at that hour, Shri Agarwal said that he had come to meet her only. Immediately thereafter, he made obscene gesture/ posture with the intention to outrage the modesty of Smt. Mehfuja Begum.

As soon as Smt. Mehfuja realized the malafide intention of the visit of Shri Agarwal, she managed to run out of flat to call the neighbour for help. When Shri Agarwal found that Smt. Mehfuja Begum had gone out of the house and was seeking help of the neighbour, he rushed out of the house and escaped.

Taking undue benefit of this position as Senior Manager of the Bank, Shri Agarwal indulged in activities quite prejudicial to the interest of the Bank as it lowered the image of the bank in the eyes of the public at large.

CHARGE-II

He left Headquarters without obtaining prior permission of the competent authority and absented from duties unauthorizedly.

1. On 18.9.1993 (Saturday) at about 4 pm Shri Agarwal submitted Leave application for availing privilege leave w.e.f. 20.9.1993 to 25.9.1993 for going to Delhi stating reasons for leave as "personal works at Delhi". it was advised to Shri Agarwal verbally that his request for leave as above was not acceded to by the Competent Authority and as such, he should not proceed on leave.

Despite the above verbal instructions, Shri Agarwal left Headquarters and processed on leave without obtaining prior approval/

concurrence of the Competent Authority, thereby violating the instructions of the Higher Authorities.

2. Shri Agarwal absented from duties w.e.f. 20.9.93 and did not report for duties though he was advised about non-sanction of his privilege leave applied by him as stated under para (1) above. Vide Zonal Office, Bhopal telegram dated 21.9.93, Shri Agarwal was advised about non-sanction of leave as well as for resuming the duties immediately. Shri Agarwal, however, neither reported for duties nor he submitted any reply to the said telegram/ confirmatory copy of telegram and remained absent unauthorizedly.

3. Again, Shri Agarwal was advised to resume his duties along with explanation for his unauthorized absence from duties w.e.f. 20.9.93 vide Zonal Office, Bhopal telegram dated 13.10.93. He neither reported for his duties nor he submitted any explanation / reply for his unauthorized absence from duties and has been continuing to remain absent from duties without any valid reasons."

3. The petitioner replied the above charges on 27.1.1994. With

regard to the charge no.1, he admitted that he did visit Zia‟s

house on 14.9.1993, but stated the same to be at later‟s instance.

He, however, denied his visit on 16.9.1993 or any other day. With

regard to charge no.2, he stated that on 18.9.1993 at about 11

am, an erratic group of employees of the Bank obstructed him to

proceed for his work and they also started behaving with him in

an abhorrent manner. He then approached the Deputy Zonal

Manager who suggested him not to go to worksite and also

advised him to proceed on leave and accordingly he made an

application on 18.9.1993 for proceeding on leave from 20.9.1993

to 25.9.1993. He stated that he proceeded on leave after

obtaining verbal consent of Deputy Zonal Manager and denied

that he proceeded on leave without consent or knowledge of the

higher authorities. He stated that on 25.9.1993, he being unwell,

applied for extending leave on medical grounds and also sent a

phonogram on 4.10.1993 informing about his sickness. He stated

having sent as many as 8 phonograms starting from 16.10.1993

to 21.01.1994 and 6 letters starting from 8.11.93 to 7.1.94

seeking grant of leave. On this premise, he denied that he was

unauthorizedly absent from duty.

4. Not satisfied with the reply, the respondent instituted a

departmental inquiry which ultimately came to be conducted by

the Inquiry Officer from 23.3.1994 to 27.6.1994. The Inquiry

Officer conducted the inquiry as per rules and there is no

challenge with regard to the manner of conducting inquiry by him.

Even after conclusion of inquiry proceedings on 27.6.1994, the

petitioner was granted another opportunity to submit his brief in

writing which he did vide letter dated 7.7.1994. The Disciplinary

Authority ultimately vide its order dated 31.1.1995 decided to

impose upon him major penalty of compulsory retirement from

bank services. Now, the petitioner started leveling allegations

against the Disciplinary Authority vide repeated letters which

were turned down by the department/ competent authority. The

petitioner then represented to Senior Regional Manager on

29.8.1995 for placing before Appellate Tribunal his representation

protesting appointment of Disciplinary Authority. Then he sent

other letter as follow-up on 7.10.1995. He was again informed

about the decision of the Board according approval of Disciplinary

Authority and that the same has also been communicated to him.

He was also informed that the appeal could have been preferred

within 45 days under Regulation No.17 and the period now

already stood expired. The petitioner kept on writing letter after

letter to the different authorities of the Bank and he also wrote

another letter to the Executive Director of the respondent bank

denying the allegations of misconduct and also levelled

allegations of misconduct against the Disciplinary Authority. On

these averments, the petitioner has challenged his compulsory

retirement from service vide impugned order dated 31.1.1995 of

Disciplinary Authority.

5. From the averments as noted above and the submissions

made by learned counsel for the petitioner, it would be noted that

the main grievance of the petitioner was about the aforesaid

charges leveled against him and whereupon the inquiry came to

be conducted and consequently he was compulsorily retired from

his service.

6. In dealing with this controversy, it is necessary at the outset

to emphasize the limitation and jurisdiction of this Court in

entertaining a plea of writ of certiorari under Article 226 of the

Constitution of India. This question has been the subject matter of

several decisions of the Supreme Court as well as this Court and

the law in this regard is no longer in doubt. In order to justify the

issue of writ of certiorari, it must be shown that the impugned

order suffers from an error apparent on the face of the record.

7. Now adverting to the facts of the present case leading to

the conduct of the inquiry resulting in compulsory retirement of

the petitioner, it is noted that there are two charges of

misconduct leveled against him. It has been noted above that a

due inquiry was conducted after giving opportunity of being heard

to the petitioner by the Inquiry Officer. In the inquiry proceedings,

the petitioner was also given opportunity to cross examine the

department witnesses and lead his own evidence. With regard to

the charge (1) of misconduct it was not only the complainant, who

was none else but the mother of junior colleague of the petitioner,

but three independent witnesses were also examined by the

department. From the inquiry report, it is seen that the

complainant maintained about the indecent behavior of the

petitioner. The petitioner had admitted having visited the

residence of the Yusuf Zia on 14.9.1993 and the presence of

mother of Yusuf Zia there. Yusuf Zia was admittedly his junior and

no explanation has been given by the petitioner about the

purpose of his visit to the house of Mr. Zia on 14.9.1993. Though

petitioner had denied having visited residence of Yusuf Zia on

16.9.1993 and behaving indecently with his mother Mehfuza

Begum, but all this stood proved in the statements of Begum Zia

and two independently corroborating witnesses. There was no

reason why Begum Zia or the two independent witnesses would

depose against him. The petitioner had also admitted that on

18.9.1993 he was assaulted by the staff of the bank. The reasons

for such an assault was none else but the indecent behavior of

the petitioner with Begum Zia.

8. I do not see any perversity or illegality in the inquiry

conducted by the Inquiry Officer. However, the question for

consideration would be as to whether indulgence in such an

activity by the petitioner would amount to misconduct or not. The

respondent bank in its „Officer Employees‟ Regulations

(hereinafter the "the Regulations")‟ has prescribed various

activities of the employees amounting to misconduct and notified

different kinds of punishments. Sub Clause (2) of Rule 3 which

prescribed general regulations for conduct of the employees

reads as under:

"(2) Every officer employees shall maintain good conduct and discipline and show courtesy and attention to all persons in all transactions and negotiations."

9. Learned counsel for the petitioner submitted that the

alleged activities of the petitioner in any case would not amount

to misconduct inasmuch as it has no connection whatsoever with

the official working of the petitioner. In this regard, reliance is

placed on M/s Glaxo Laboratories (I) Ltd. v Presiding

Officer, Labour Court, Meerut and others [AIR 1984 SC 505].

It is submitted by learned counsel for the petitioner that the

employer has hardly any extraterritorial jurisdiction. He is not the

custodian of general law and order situation nor the Guru or

mentor of his workmen for their well regulated cultural

advancement. The Supreme Court in above case observed as

under:

"If the power to regulate the behaviour of the workmen outside the duty hours and at any place wherever they may be was conferred upon the employer, contract of service may be reduced to contract of slavery. The employer is entitled to prescribe conditions of service more or less specifying the acts of misconduct to be enforced within the premises where the workmen gather together for rendering service. The employer has

both power and jurisdiction to regulate the behaviour of workmen within the premises of the establishment, or for peacefully carrying the industrial activity in the vicinity of the establishment. (para 13) Xxxx

Where the Standing Orders of an establishment provide that certain acts would constitute misconduct if "committed within premises of the establishment or in the vicinity thereof" then any misconduct committed anywhere irrespective of the time-place content where and when it is committed anywhere irrespective of the time-place content where and when it is committed cannot be comprehended to be the misconduct within the meaning f the Standing Orders merely because it has come remote impact on the peaceful atmosphere in establishment. The words "committed within premises of the establishment or in the vicinity thereof are words f limitation and they must cut down the operation of the Standing Order. The misconduct prescribed in a standing Order which would attract a penalty has casual connection with the place of work as well as the time at which it is committed which would ordinarily be within the establishment and during duty hour. The casual connection in order to provide linkage between the alleged act of misconduct and employment must be real and substantial, immediate and proximate and not remote or tenuous.(paras 15, 16 and 18)

Some misconduct neither defined nor enumerated and which may be believed by the employer to be misconduct ex post facto would not expose the workman t a penalty. It cannot be left to the vagaries of management to say ex post facto that some acts of omission or commission nowhere found to be enumerated in the relevant Standing Order is nonetheless a misconduct not strictly falling within the enumerated misconduct in the relevant Standing Order but yet a misconduct for the purpose of imposing a penalty. (para 23)

10. There does not arise any dispute with regard to the

standing orders of establishment which specifically mandates

certain acts to constitute misconduct and that it could not be left

to the management to say ex post facto, the same acts of

omissions and commissions would nonetheless amount to

misconduct even if they are not included in the standing order. As

per Regulation 3 which prescribes general conduct for the

employees every employee was required to maintain good

conduct and discipline and show courtesy and attention to all

persons and in all transactions. In fact it is difficult to lay down

any general rule as to what conduct can be properly termed as

misconduct. In this regard reference is made to the case of the

Supreme Court in Agnani (W.M) v Badri Das and others [Civil

Appeal No.881 of 1962, dated 25th March, 1963] wherein it was

held as under:

"Acts which are subversive of discipline amongst the employees would constitute misconduct; rowdy conduct in the course of working hours would constitute misconduct; misbehavior committed even outside working hours but within the precincts of the concern and directed towards the employees of the said concern may, in some cases, constitute misconduct; if the conduct proved against the employees is of such a character that he would not be regarded as worthy of employment, it may, in certain circumstances, be liable to be called misconduct. What is misconduct will naturally depend upon the circumstances of each case. It may, however, be relevant to

observe that it would be imprudent and unreasonable on the part of the employer to attempt to improve the moral or ethical tone of his employees' conduct in relation to strangers not employed in his concern by the use of the coercive process of disciplinary jurisdiction. As we have already observed, it is not possible and we do not propose to lay down any general rule in that behalf. Where standing orders were framed, there is no difficulty because they define misconduct. In the absence of standing orders, the question will have to be dealt with reasonably and in accordance with commonsense".

11. In the present case, the misconduct that is proved against

the petitioner has been noted above. There cannot be any

dispute that bank employees have direct link with the general

public at large and if they are not disciplined, it would have the

effect of subversing the good image of the establishment. Any

indecent behavior or activity of the bank employees are bound to

have negative impact on the working of the establishment. This is

irrespective of the fact that the act was committed within the

premises or outside. It is the duty of the officials of the

establishment of the bank to take all possible steps to protect the

interest of the bank and to ensure that the duties are discharged

by its employees. Not only that, they must have integrity, honesty

and devotion, and must act in a decent and orderly manner. It is

unbecoming of a bank officer to indulge in any kind of activity

which has the effect of subserving the discipline and good

behavior of the establishment. In view of the nature of the

activities in which the petitioner indulged and which stood proved

through proper inquiry, the contention of learned counsel for the

petitioner was untenable that the respondent was not supposed

to act as a mentor or its work was not to regulate their conduct

and behavior Judging by any kind of standard, the activity and

behavior of the petitioner towards Mrs. Begum Zia when she was

alone at her home would amount to misconduct within the ambit

of Clause 2 of Regulation 3.

12. With regard to the charge relating to his being absent from

duties unauthorizedly, the case of the petitioner was that he was

assaulted by the staff on 18.9.1993 and then was advised by

Zonal Manger to proceed on leave and he did so after submitting

the application for leave from 20.9.1993 to 25.9.1993. In the

inquiry proceedings, the bank official Mr. D.K. Sharma was

examined as PW5 and he was subjected to lengthy cross

examination by the petitioner. From his submissions, it came to

be concluded by the Inquiry Officer that the petitioner did apply

for leave with effect from 20.9.1993 to 25.9.1993 vide his leave

application dated 18.9.1993, but the same was not accorded

sanction and the decision of the Competent Authority was

communicated to him with clear and mandatory instructions not

to proceed on leave. This witness clearly stated that the leave

applied by the petitioner had not been sanctioned. This clearly

goes to prove the second charge against the petitioner. Based

upon the testimony of the witnesses and the documentary

evidence led by both the parties, the Inquiry Officer arrived at a

conclusion that the petitioner was advised adequately and timely

of non-sanction of his leave and about his unauthorized absence.

Not only this, the petitioner continued sending applications and

phonograms for extension of his leave on medical grounds. From

the evidence of the parties and also the documents, the Inquiry

Officer also arrived at a finding of fact that the petitioner was

categorically advised to submit the explanation as well as medical

certificate in original from Chief Medical Officer of Government

Hospital or from Bank Chief Medical Officer posted at New Delhi.

Based on material on record, the Inquiry Officer also came to

conclusion that the petitioner acted in violation of instructions and

remained absent from his official duties from 20.9.1993 onwards

and also did not give any explanatory letters/ documents in

support of his contentions.

13. Rule 13 of the Regulations which was stated to be violated

by the petitioner reads as under:

"13. Absence From Duty:

(i) 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.

(ii) Provided that in the 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 that such a permission could not have been obtained.

(iii) No officer employee shall ordinarily absent himself in case of sickness or accident without submitting a proper medical certificate.

Provided that in the case of temporary indisposition or sickness of a casual nature, the production of a medical certificate may, at the absolute discretion of the competent authority, be dispensed with.

14. From the petitioner‟s own saying, it would be seen that he

was assaulted on 18.9.1993 and he proceeded on leave and left

for Delhi. Thereafter, he kept sending letters/ phonograms for

extension of leave on medical grounds. That was the charge

against him and the same was proved adequately in the inquiry.

This would apparently be seen that the absence from duty was in

clear violation of Rule 13 of the Regulations.

15. In view of above discussion, it is seen that the inquiry was

properly conducted by the Inquiry Officer and nothing illegal or

ultra vires could be pointed out by the petitioner. The fact that he

had some grudge or grievance against the Disciplinary Authority

as regards to his working, it was all extraneous and irrelevant