Ravinder Singh Achreja vs Vijaya Bank & Ors
2013 Latest Caselaw 511 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) No. 1443/2002
%                                            Reserved on:   January 23, 2013
                                             Pronounced on: February 04,2013

RAVINDER SINGH ACHREJA                                         ......Petitioner
                 Through:                Ms. Kanchan Kaur Dhodi, Adv.


                            VERSUS

VIJAYA BANK & ORS                                                   ...... Respondents

                            Through:         Mr. P.S.Shetty, Adv.

CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?


VALMIKI J. MEHTA, J

1. By this present petition filed under Article 226 of the Constitution of

India the petitioner/employee seeks quashing of the penalty order dated 9.10.1998

imposing the penalty of compulsory retirement on the petitioner, passed on account

of continuous unauthorized absence of the petitioner from duty, and which absence

continued till passing of the impugned order. The impugned penalty order dated

9.10.1998 was preceded by the report of the Enquiry Officer dated 16.7.1998, and

the chargesheet dated 30.12.1996 issued to the petitioner. The appeal filed by the

petitioner before the Appellate Authority was rejected vide order dated 30.3.1999.

The petitioner, therefore, seeks setting aside of the orders dated 9.10.1998 and

30.3.1999 and claims reinstatement in service and all consequential benefits.

2. The facts of the case are that the petitioner joined the services of the

respondent no.1-bank on 5.3.1976. During his service, the petitioner suffered

physical disability with regard to both his lower limbs and therefore, he after

taking sanctioned leave underwent two surgeries in USA. The hip replacement

surgeries were performed on 12.10.1993 and 21.4.1994. The petitioner thereafter

joined his duties on 23.1.1995, however, he again applied for medical leave from

1.5.1995 to 30.5.1995. By an application dated 12.4.1995, the petitioner sought

preponement of leave period from 15.4.1995 to 15.5.1995, and the leave was

thereafter sought to be extended for a total period of 89 days ending on 12.7.1995.

The petitioner around 12.4.1995, without waiting for sanctioning of the leave,

proceeded to USA claiming requirement of medical treatment in terms of the

certificate dated 2.4.1995 issued by one Dr. Sudhir Kumar which prescribes that

the petitioner had to report to the orthopedic surgeon who had conducted his hip

replacement surgeries. This certificate dated 2.4.1995 was given by the said Dr.

Sudhir Kumar after the petitioner had fallen down from stairs. The certificate of

Dr. Sudhir Kumar besides asking the petitioner to report to the orthopedic surgeon,

also advices rest and to avoid climbing of stairs or lifting weights. The petitioner

by his subsequent application dated 21.1.1996 (i.e about 8 months after first

application dated 12.4.1995) again applied for extension of the leave up to

18.7.1996 i.e the leave was sought to be taken for about one year from 12.7.1995

to 18.7.1996. Be it noted that the only leave period which was sanctioned to the

petitioner in this period from 12.4.1995 to 21.1.1996 was for a period of 89 days

commencing from 15.4.1995 and ending on 12.7.1995. Rest of the period of the

leave taken by the petitioner was without any sanction having been granted. The

third application which was filed by the petitioner for continuation of his leave for

3-6 months is dated 15.5.1996. During this period, the employer/respondent no.1

had written letters to the petitioner to resume duty and these letters are dated

26.9.1995, 23.11.1995, 15.4.1996 and 13.6.1996. By these letters, the petitioner

was also informed by the respondent no.1-bank to report back immediately to duty.

The petitioner was also asked to file an affidavit that he was not earning in USA as

also information regarding the source of his income for meeting the expenditure of

the stay in USA. The bank also called upon the petitioner to submit leave

applications supported by the medical certificates in support of his treatment at

USA.

3. The fact of the matter is that the petitioner, right from 12.4.1995 till

today has not returned back from USA. The petitioner has not joined his duties

with the respondent no.1 even after the passing of the orders by the Disciplinary

Authority.

4. The petitioner was issued a charge sheet dated 30.12.1996 and the

article of charge against the petitioner is reproduced in the order of Enquiry Officer

and which reads as under:-

"ARTICLE OF CHARGE:-

While working at RI, Delhi, he after initially availing 4 days C.L. had left to USA allegedly for Post-Operation checkup in respect of hip replacement surgery conducted on him. Eventhough he had initially applied for 89 days sick leave from 15/04/1995 to 12/07/1995, he had failed to comply with the leave rules of the Bank and continued to stay at USA without producing any medical certificate especially the nature of treatment taken by him except the medical certificate dated 11/-1/1996 of one Dr. Pierre A. Cillhanna, which certificate that he was examined on 08/12/1995 and further to appear for re-examination every three months. However, he failed to produce medical certificate thereto afterwards and also failed to comply with the instructions of Head office by furnishing necessary details sought for by Head office. In respect of his Visa, source of income for meeting expenditure at USA and affidavit to the effect that he was not earning at USA etc. eventhough he was instructed to return to India and avail medical facility locally, since post operative facilities are available in India also, he failed to comply with the instructions. Therefore, the Bank has every reasons to believe that he has continued to overstay at USA on the grounds of signed sickness without complying with the leave rules of the Bank. By his above said acts he has acted in a manner unbecoming of a bank officer thereby contravened regulations 3(1), 13(1) and (2) of Vijaya Bank Officer Employees (Conduct) regulations, 1981."

5. The petitioner did not personally appear before the Enquiry Officer

for making his statement to dispute the article of charges against him and neither

did he file any written statement denying the imputation of charges contained in

the charge sheet. The petitioner of course did seek to appear through a Defence

Assistant namely Sh. S.P.Makkar, however, the Enquiry Officer in view of

applicable rules did not permit the said Assistant to appear without the

chargesheeted officer because the chargesheeted officer had to personally appear at

least once or he had to file a written statement, and neither of which was done by

the petitioner.

6. After the respondent no.1/management led evidence, the Enquiry

Officer has given the following findings.

"7. FINDINGS:

ISSUE NO:1 As per H.O Codified Circular No. 65/93 dated 06/05/93 and 101/93 dated 24/09/93

a) if an employee is absenting from duty without satisfying the provisions of leave rules can be deemed as unauthorised absence.

b) if any staff member seeks leave on medical grounds he/she should invariably submit medical certificate along with the leave application or within 3 days from the date of application seeking leave on medical grounds. In case an application for sick-leave is submitted after in ordinant delay without proper justification the delay cannot be condoned and the period of absence upto the date of receipt of the application shall be treated as unauthorised absence and hence on loss of pay.

c) if the employee is absent from duty for more than a day and if there is no leave application from the employee her or his absence should be treated as unauthorised absence and hence on loss of pay.

d) No leave or Extension of leave shall be deemed to have been granted unless an order to that affect is passed and also communicated to the employee concerned. After going through the above I have no hesitation in reporting that the CSO was on unauthorised absence. Further Sh. M.dinkar shetty, Chief Manager, ZO, Delhi, (Then Chief Manager, RI, Delhi)(MVV-1) has stated during the enquiry (Refer page No.3 to 8 of EP dated 18/03/98) that the CSO has remained absence unauthorised from 15/04/98 till the date of enquiry.

Now I would like to dwell upon the Management Exhibits. As per MEX No: 3,4,13 the Chief Manager of RI, Delhi has send letters/notice to CSO informing him about his unauthorised absence at a frequent iintervals and also informing him to report for duty. He has instead of complying with the said instructions CSO continued remain absence. Hence it is a very clear case of unauthorised absence. Accordingly I hold issue No:1 is proved against CSO.

ISSUE NO:2 It is evident from MEX No: 8 that even though leave had applied for to go to USA for medical checkup as per Doctor's advice and after applying leave (MEX-2) from 15/04/95 to 12/07/95 he has not returned to India till date of enquiry despite of repeated letters from the Chief Manager R.I., Delhi (Refer MEX 3,4,13,16,20). This clearly shows that he had overstayed at USA.

Further the reasons mentioned in his leave application while going to USA was "For medical check up as per Doctor's advice" (MEX -2) but the medical certificate issued by Dr. Rajwanth Singh, General Dentist, Manland and which certificates that CSO was undergoing "Dental Surgery". In this connection I would like to refer the medical certificate of Dr. Perra A. Calhanna dated 11/01/96 wherein the nature of sickness was not mentioned.

Under his letter dated 13/06/96(Refer MEX-16) Chief Manager, RI, Delhi has instructed CSO to produce:

a) Passport with VISA details, b) Affidavit stating that CSO is not earning at USA, c) Source of income to meet his expenses(Medical as well as regular expense at USA). But the CSO failed to comply with

the instructions and after studying the above facts I have no hesitation in reporting that issue No.2 is proved against CSO. ISSUE NO.3 In this connection I would like to again refer Chief Manager's letter dated 26/09/95, 23/1195, 01/12/95, 15/04/96 and 13/06/96 wherein he has advised CSO to report back for duty. (Refer MEX No.3,4, 13, 16 and by not reporting for duty as instructed by higher authority and it amounts to disobeyance. Vide his letter dated 13/06/98 further CM, RI, Delhi has instructed CSO to submit certain particulars such as: A) copy of Passport with Visa details B) Affidavit to the effect that CSO is not earning at USA, C) Source of Income to meet his medical expenses and other regular expenses. By not complying with the above instructions the CSO has disobeyed the instructions of higher authorities. Hence the issue has been proved against the CSO. ISSUE NO.4 In this connection I would like to refer HO Codified Circular No.65/93 dated 06/05/93 and 101/93 dated 24/09/93 wherein it is clearly stated that:

a) If an employee's absenting from duty without satisfying the provision of leave rules can be deemed as an unauthorized absence.

b) If any staff member seeks leave on Medical grounds he/she should Invariably submit medical certificate along with the leave application or within 3 days from the date of application seeking leave on medical grounds. In case an application for sick leave is submitted after Inordinant delay without proper justification the delay cannot be condoned and the period should be treated as unauthorized absence and hence on loss of pay.

c) If the employee is absent from duty for more than a day if there is no leave application from the employee her or his absence should be treated as unauthorized and hence on loss of pay.

d) No leave or extension of leave shall be deemed to have been granted unless an order to that effect is passed and also communicated to the employee concerned.

From the above facts I have no other option but to report that CSO has acted in the manner unbecoming of a bank officer thereby contravened regulations 3(1), 13(1), and (2) of Vijaya Bank officer service regulation 1981. After going through the above I have no hesitation in reporting that the issue has again gone against the CSO Shri A.S. Achreja.

CONCLUSION:

On analyzing all aspects of the matter and giving a thoughtful consideration to oral as well as documentary evidence produced before the enquiry, I conclude that all the charges framed against CSO are proved and established.

K. SACHIDANANDA SHETTY (ENQUIRY OFFICER) DAO-Mumbai.16/07/98"

(underlining is added)

7. Pursuant to the aforesaid report of the Enquiry Officer, the

Disciplinary Authority vide order dated 9.10.1998 visited the petitioner with the

major penalty of compulsory retirement.

8. Before adverting to the arguments addressed, I must state that law

with respect to interference by a Court in the order passed by a Disciplinary

Authority and an Appellate Authority is well settled and which is that this Court

does not sit as an Appellate Court over the findings of the Enquiry Officer and the

punishment imposed by the Disciplinary Authority. Unless the orders passed by

the authorities are illegal or violative of principles of natural justice or perverse or

violative of the doctrine of proportionality, a Court does not interfere.

9. The first point urged on behalf of the petitioner was that if the

respondent no.1-bank was not satisfied about the medical condition of the

petitioner, then the respondent no.1, in terms of Rule 3.1.4 relating to sick leave

was bound to ask the petitioner to report to a doctor for being examined and since

the petitioner was not asked to report to a doctor, the petitioner is deemed to have

been granted automatic leave till the entire period of unauthorized absence from

duty, which in this case has continued not only till the passing of the orders by the

Disciplinary Authority and the Appellate Authority, but even has continued till this

petition has been heard by this Court.

10. In my opinion, the provision of Rule 3.1.4 cannot be invoked by the

petitioner for various reasons. Firstly, the petitioner, by means of various letters,

which have been stated above, was called upon to report back for duty inasmuch as

the petitioner was not in India but was in USA. A direction to report back for duty

surely would be the basis for the subsequent examination by a doctor, and it cannot

be said that automatic medical leave is granted to an employee unless the employer

fails to direct the appearing of the employee before the doctor of the employer.

The provision relating to sick leave being Rule 3.1.4 is to apply in those

circumstances when an employee is ready to come before the doctor of the

employer in India. Rule 3.1.4 cannot mean that an employee can stay in USA and

claim that he is automatically entitled to medical leave without any sanction

merely because the employer has not specifically asked him to get himself

examined by the doctor of the employer. Another reason for rejecting the

argument with reference to Rule 3.1.4 urged on behalf of the petitioner is that at

least there will have to be a proper application seeking leave and which has to be

necessarily supported by a doctor's certificate for the relevant period for seeking

leave. Admittedly, in the present case, there are three disjointed applications

which do not cover the entire period of leave from 15.4.1995 till the date of giving

of the report by the Enquiry Officer and the passing of the order by the

Disciplinary Authority. At best, the leave as prayed for, if it can be said to have

been prayed for, is till December, 1996, and whereafter there is not even an

application for seeking leave on medical grounds. Not only that there are no

adequate applications, the applications that were made were applications not made

before sanctioning of the leave and the tenor in the applications is to be the effect

that the petitioner/employee is automatically entitled to claim leave on medical

grounds. There is no rule or law of automatic grant of leave and nor can there be,

otherwise organization will not be able for function. Reference in this regard is

specifically required to be made to paras 7(a) to (d) of the order of the Disciplinary

Authority reproduced above, which deals with this aspect of unauthorised absence.

Further, when we look at only certificates on record, we find that so far as the first

certificate dated 2.4.1995 of Dr.Sudhir Kumar is concerned, the said certificate in

no manner states that there is a grave and immediate medical urgency for the

petitioner to immediately report to the doctor in USA, and much less the certificate

dated 2.4.1995 advises complete bed rest. On the contrary, this certificate shows

that the petitioner with his physical disability is mobile within the limits of his

physical condition, and all that he was advised was not to lift weights and climb

stairs. At the risk of repetition it be noted that there is no medical requirement of

the petitioner being confined to bed in the certificate dated 2.4.1995. Also the

certificate gives no period of rest advised to the petitioner so that he could take

medical leave for a specific period. Next is the certificate dated 11.1.1996 of one

Dr.Pierre A. Calilhanna. Once again, all that this certificate states is that the

petitioner has to restrict his activities and he has to be checked up on regular basis

every three months in order to evaluate the status of his hip replacement. This

certificate in no manner states that the petitioner is not fit to report for work and

has to be confined to bed or to remain in USA. The expression of having to have a

regular check up every 3 months cannot mean that the petitioner for any of the in-

between periods of the three months can continue to remain absent from duty by

remaining in USA. Once again, this certificate of Dr. Mr.Pierre A. Calilhanna

dated 11.1.1996 does not support the case of the petitioner of his automatic

entitlement to medical leave. The last certificate is not on record and which has

been referred to in the findings of the Enquiry Officer and the chargesheet, but this

certificate has nothing to do with the issue of hip replacement, and is of the

petitioner undergoing dental surgery. Surely, medical facilities for post operative

treatment of hip replacement and also for ordinary dental surgery are available in

India and thus it was not possible for the petitioner to contend that automatic leave

should be granted to him for staying in USA.

11. In my opinion, therefore, the argument made by the petitioner relying

upon Rule 3.1.4 is wholly without merit and is accordingly rejected.

12. The second ground which is urged on behalf of the petitioner is that

the Defence Assistant authorized by the petitioner was not allowed to attend the

proceedings and it was wrongly insisted that the petitioner be present. In this

regard, counsel for the petitioner has placed great reliance upon Rule 6(19) of the

Rules and which rules provide the procedure for imposing of major penalty. This

rule provides that an employee can appear through an Assisting Officer and may

not appear personally. To counter the argument of the petitioner, the counsel for

the respondent no.1/bank has relied upon Rules 6(8) and (19) to argue that the

issue of the chargesheeted officer appearing through a Defence Assistant arises

only if firstly the chargesheeted officer personally appears and makes a statement

denying the charges or at any rate at least files a written statement to deny the

charges and only whereafter the chargesheeted officer can appear through a

Defence Assistant. It is thus argued on behalf of the respondent that in the present

case the issue of appearance of the Defence Assistant cannot arise because the

chargesheeted officer/petitioner did not appear personally even once before the

Enquiry Officer to make his statement and neither did he file a written statement

denying the charges.

13. In order to appreciate the arguments, Rules 6(7) (8) and (19) are

required to be referred to and which read as under:-

"6. PROCEDURE FOR IMPOSING MAJOR PENALTIES xxxxxxx

(7) The officer employee may take the assistance of any other officer employee but may not engage a legal practitioner for the purpose, unless the Presenting Officer appointed by the Disciplinary Authority is a legal practitioner or the disciplinary authority, having regard to the circumstances of the case, so permits.

(8) (a) The inquiring authority shall by notice in writing specify the day on which the officer employees shall appear in person before the inquiring authority.

(b) On the date fixed by the inquiring authority, the officer employee shall appear before the inquiring authority at the time, place and date specified in the notice.

(c) The inquiring authority shall ask the officer employee whether he pleads guilty or has any defence to make and if he pleads guilty to any of the articles of charge, the inquiring

authority shall record the plea, sign the record and obtain the signature of the officer employee concerned thereon.

(d) The inquiring authority shall return a finding of guilt in respect of those articles of charge to which the officer employee concerned pleads guilty.

(19) If the officer employee does not submit the written statement of defence referred to in sub-regulation (3) on or before the date specified for the purpose or does not appear in person or through the assisting officer of otherwise fails or refuses to comply with any of the provisions of these regulations, the inquiring authority may hold the inquiry ex-parte."

14. A reference to the aforesaid rules shows that the counsel for the

respondents is justified in arguing that the issue of representation on behalf of the

chargesheeted officer arises only after either a written statement is made by

charged officer personally appearing before the Enquiry Officer or a written

statement in writing signed by the chargesheeted officer is sent to the Enquiry

Officer. In the present case, admittedly, the petitioner never personally appeared

before the Enquiry Officer and nor did he send a written statement denying the

charges against him. Therefore, in the peculiar facts of this case, and keeping in

mind that the petitioner has since 1995 till date in 2013 not joined duties, it cannot

be said that there is any violation of the principles of natural justice in the facts of

the present case.

15. Principles of natural justice are not hide bound rules but are

sufficiently flexible to see that no injustice is caused. I fail to understand any

injustice to an employee such as the petitioner who has remained unauthorizedly

absent from duty for many years and has in fact settled in USA.

16. Therefore, the argument on behalf of the petitioner of violation of

principles of natural justice on account of the Defence Assistant not being allowed

to appear, is in the facts of the present case misconceived and is therefore

rejected.

17. The third ground urged on behalf of the petitioner is that the petitioner

should not have been visited with the punishment of compulsory retirement which

is urged to be disproportionately high. I really fail to understand this argument

because though the petitioner has tried his utmost through his counsel to make this

Court take a sympathetic view because of the physical disability of the petitioner,

however I do not think that any Court can ignore the fact that the employee has

chosen most contemptuously to remain absent from duty, not for a few days and

weeks; but for years altogether, and in fact has settled abroad in USA to allow the

plea that the punishment of compulsory retirement is highly disproportionate. If the

petitioner at some stage had joined his duties with the respondent no.1 even after

unauthorized absence, then, may be the Court as per the facts of such a case may

have examined any issue of liberal approach, but, there does not arise the question

of liberal approach with respect to an employee who remains unauthorisedly absent

and seeks to emotionally use his physical disability as a ground of justifying

continuous unauthorized absence. In the facts of the present case, I do not find that

punishment of compulsory retirement is disproportionate, and accordingly this

argument is also therefore rejected.

18. The next argument on behalf of the petitioner is that the petitioner

ought to have been given TA/DA for attending the enquiry, and since this was not

given the enquiry report gets vitiated. What the argument is urged to mean is that

the petitioner claims that he should be paid TA/DA for travelling in question from

USA to India, and unless such TA/DA is paid there would be violation of the

relevant circular of the respondent no.1. Firstly, there is no such circular filed and

nor there would be any such circular that an employee is to be paid TA/DA charges

from a foreign country to India merely because such employee chooses to be

unauthorizedly absent from duty and stay in USA. Obviously, this argument is

frivolous to say the least, and being without any merit is therefore rejected.

19. The last argument urged on behalf of the petitioner is with respect to

the fact that Enquiry Officer himself is chargesheeted and criminal case is pending

against him and therefore such an officer could not conduct an enquiry. When

asked to say that as to how such grave charges are being made, the counsel for the

petitioner expresses her inability to refer to any documents which have been filed

to substantiate this argument. That being so, once again, this argument is without

any basis and is rejected.

20. Finally, I must say that though no doubt there has to be balanced

sympathy for a physically disabled person such as the petitioner, however, the

question is should sympathy displace gross misconduct and continuous

unauthorized absence from duty for years altogether ending with the petitioner

never joining his duty, and having settled abroad in USA. Also, it may be noted

that the bank had asked the petitioner to file an affidavit with regard to whether the

petitioner is or is not earning abroad and what are his sources of income for

treatment, but, the petitioner has remained deliberately silent on this aspect, and

which is not an attitude which should be appreciated by Courts, either in law or in

equity.

21. In view of the above, considering the limited jurisdiction that this

Court exercises under Article 226 of Constitution of India, wherein this Court does

not act as an Appellate Court, and considering that the petitioner has

contumaciously and unauthorisedly not joined his duties with the respondent no.1

till date, and is using frivolous arguments, in my opinion, the present petition is

wholly without merit and is liable to be and is accordingly dismissed.

22. Considering the facts of the present case of contumacious

unauthorized absence of the petitioner, I was at one point of time thinking of

imposing terms on the petitioner but considering that he is a disabled person

(though of course he is settled in USA and means of income have been concealed

by him), I refrain from imposing any terms on the petitioner.

23. The writ petition is therefore dismissed leaving the parties to bear

their own costs.

FEBRUARY 04, 2013                                  VALMIKI J. MEHTA, J.
ib