Ashok Kumar Chhabra vs Indian Bank & Ors.
2014 Latest Caselaw 3364 Del

          *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                            Date of decision: 28th July, 2014

+                                W.P.(C) No.5197/2001

       ASHOK KUMAR CHHABRA                    ..... Petitioner
                  Through: Mr. Jagat Arora & Mr. Rajat Arora,
                           Advs.
                                    Versus
       INDIAN BANK & ORS.                                ..... Respondents

                    Through:            Mr. Vaibhav Kalra & Mr. Deepak
                                        Yadav, Advs.
CORAM :-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1. This petition invoking Article 226 of the Constitution of India

impugns the order dated 9th March, 2000 of the Disciplinary Authority of the

respondent Bank imposing upon the petitioner major penalty of dismissal

from service in terms of Regulation 4(j) of Indian Bank Officer Employees'

(Discipline & Appeal) Regulations, 1976. The petitioner also seeks the relief

of reinstatement with all consequential benefits.

2. Notice of the petition and the application for interim relief were issued

though no interim relief granted. Rule was issued in the writ petition on 26th

July, 2002 and the application for interim relief dismissed. The petitioner

was permitted to file additional affidavit. Mediation was attempted but

without any success. Written synopsis of submissions filed by the counsels

are on record. The counsels have also been heard.

3. The arguments of the counsel for the petitioner are:-

(i) that the petitioner, in the year 1972 selected and appointed as a

Probationary Officer in the respondent Bank, served diligently

and was promoted from time to time and was last working in

the Senior Manager Grade Post (Scale-V) and had unblemished

career;

(ii) that the petitioner, on account of the illness of the brother of his

wife staying in USA, had to suddenly leave for USA on 29th

December, 1998 and owing to the urgency could neither apply

for and obtain leave nor even inform his employer, the

respondent Bank of the same;

(iii) that the petitioner however vide his letter dated 2nd January,

1999 informed the respondent Bank of his sudden departure and

applied for 90 days leave;

(iv) the respondent Bank though rejected the application for leave

only in May, 1999, prior thereto commenced disciplinary

proceedings against the petitioner for having absented from

duty and which disciplinary proceedings have resulted in the

punishment aforesaid being meted out to the petitioner;

(v) that the Disciplinary Authority of the respondent Bank has paid

no heed to 26 years of unblemished service of the petitioner

with the respondent Bank;

(vi) that though the respondent Bank vide order dated 3rd July, 2014

was directed to take instructions whether it was willing to

convert the punishment meted out to the petitioner to that of

voluntary retirement with all consequential retiral benefits and

to which the petitioner is willing and which would enable the

petitioner to at least have the respondent's share of provident

fund, gratuity, leave encashment etc. but the respondent Bank is

not agreeable to that also; and,

(vii) that the petitioner having an unblemished service record of 26

years should not be deprived of his such retiral benefits.

4. On enquiry whether the petitioner, if the order of dismissal from

service were to stand, would not be entitled to the respondent's share of

provident fund, gratuity, pension etc., the answer is in the affirmative.

5. I have enquired from the counsel for the petitioner as to when the

petitioner returned from USA.

6. The counsel for the petitioner candidly admits that the petitioner has

since settled in USA and except for brief visits, has not visited India.

7. It has further been enquired from the counsel for the petitioner as to

on what kind of Visa did the petitioner go to USA.

8. The counsel informs that the petitioner was holding a Green Card

issued by the US Government and even in December, 1998 had travelled on

that basis. He however contends that the same should not be taken as the

petitioner having left in December, 1998 without any intention to return,

because the petitioner was holding the Green Card since the year 1992 but

inspite of that had continued to serve the respondent Bank. The counsel

reiterates that the petitioner after having served for 26 years ought to at least

get his retiral benefits.

9. I have further enquired that had the petitioner continued to serve,

when would he have superannuated.

10. It is replied that the petitioner would have attained the age of

superannuation only on 1st August, 2011 and as in December, 1998 had

nearly 14 years of service left.

11. I have enquired from the counsel for the petitioner whether the rules

of the respondent Bank permit availing of such retiral benefits after 26 years

of service, even though nearly 14 years of service / employment remain.

12. Though the counsel fairly admits that the rules do not so permit but

states that for this reason only the petitioner is willing to his case being

considered as of voluntary retirement. It is stated that the petitioner had

applied for voluntary retirement on 7th June, 1999 but which request was

also rejected. However on further enquiry it is again fairly admitted that the

said rejection of the request for voluntary retirement is not under challenge

in this writ petition which is concerned only with the legality of the decision

of the Disciplinary Authority to dismiss the petitioner from service.

13. Upon the counsel for the petitioner seeking to urge grounds of

violation of principles of natural justice and of the procedure prescribed in

the Indian Bank Officer Employees'(Conduct) Regulations 1976, I have

enquired, whether not the Conduct Rules of the Bank provide for cessation

of service / employment by abandonment i.e by remaining unauthorizedly

absent for a certain period of time.

14. Though the counsel for the respondent Bank in this regard invites

attention to the judgment dated 8th November, 2011 of the Division Bench of

this Court in Sukhdev Singh Vs. Delhi Development Authority 184 (2011)

DLT 164 but the counsel for the petitioner states that in so far as he

recollects, the said provision is contained in the Bipartite Agreement

between the workmen of all Nationalized Banks and the Association of all

Nationalized Banks and is applicable only to workmen and not to officers. It

is further stated that neither was that a ground for dismissal of the petitioner

nor for holding the employment / services of the petitioner to have come to

an end nor is such case set up in opposition to this writ petition.

15. Though in the aforesaid facts and circumstances, particularly with the

benefit of the hindsight, of the petitioner even after the order of dismissal of

his services which itself was passed after more than one year of his

unauthorized absence and during the pendency of this petition for nearly 13

years, having not come back to India and having settled down in USA, I was

of the opinion that no error can be found especially in the exercise of

jurisdiction under Article 226 of the Constitution in the dismissal by the

respondent Bank of the petitioner from service but the counsel for the

petitioner argued that of the following eight charges in the charge sheet

dated 25th March, 1999 issued to the petitioner:-

"1. You have been unauthorisedly absenting yourself from duty since 29.12.98 without getting prior permission from Zonal Manager, New Delhi.

2. You have failed to get sanction of leave from Competent Authority in terms of regulation 33(5) of Indian Bank (Officers') Service Regulation 1979 before unauthorisedly absenting yourself from duty.

3. You have failed to get permission from Competent Authority before leaving the Station / Head Quarters / Place of posting.

4. You have failed to inform your address at USA for communication instead you have furnished your local address at Yamunanagar in Haryana State.

5. You were in the habit of absenting from duty without getting prior permission from Zonal Manager, New Dehli. Hence, Zonal Manager, New Delhi advised you to desist from such practice. Inspite of that you have failed to correct yourself.

6. Zonal Manager, New Delhi advised you to desist from the practice of remaining absent and subsequently on 28.01.99 disapproved your action and recalled you to resume duty. Still you remain absent unauthorisedly. This shows the scant respect you have for the rules / regulations of our

Bank as well as towards directions of your higher authorities.

7. Your frequent abstention is detrimental to the interest of the bank in that the specialized branch such as Overseas Branch, New Delhi is made to suffer without regular Branch Manager.

8. You have failed to submit photocopy of the passport with number allotted by the issuing authority and also copy of the visa before proceeding abroad."

the Inquiring Authority held the petitioner guilty of charges 1 to 4

supra only and held the charges 5 to 8 having not been proved;

notwithstanding the same and notwithstanding the Disciplinary Authority

having concurred with the findings of the Inquiring Authority, the

Disciplinary Authority has held the petitioner to be in violation of

Regulations 13(1), 33(5) and 40, observing:-

"The Assistant General Manager of the Bank is in Senior Management cadre Scale V in the hierarchy, which comprised seven scales. This official failed to show utmost devotion to duty and dedication in the discharge of his duties. He was the Branch Head of Overseas Branch at New Delhi. This branch was handling transactions running to several crores of rupees including the transaction in Foreign Exchange. Absenting from duty without prior permission from bank for a very long duration has caused irreparable inconvenience to the clients at the branch and thereby the Bank's interests. As such, they are serious in nature amounting to acts, which are prejudicial to the interest of

the Bank and further amounts to disobedience of the lawful instructions of his superiors. It is totally unbecoming of him to have acted in the above manner."

16. It is contended that no work / function of the respondent Bank has

been proved to have suffered owing to the absence of the petitioner and

without the respondent Bank having been proved to have suffered any loss

owing to the unauthorized absence of the petitioner, the punishment meted

out of dismissal from service is disproportionate and harsh.

17. I have enquired from the counsel for the petitioner whether not the

consequence of the argument, that the work of the respondent Bank inspite

of unauthorized absence of the petitioner not suffering, amounts to saying

that the petitioner was doing no work, was a shirker and his services were

redundant.

18. No answer is forthcoming. It is however argued that the finding of the

Disciplinary Authority, of absence from duty of the petitioner without

permission having caused irreparable inconvenience to the clients at the

branch of the respondent Bank and thereby being detrimental to the

respondent Bank's interest is without any charge to that effect.

19. There is no merit in the said argument also which is but another way

of saying that it made no difference to the working of the respondent Bank,

whether the petitioner was present or not and which would also be indicative

of non-performance of duties by the petitioner.

20. Though the counsel for the petitioner has sought to urge that the

petitioner was in a Senior Managerial position and had an Assistant Manager

and the said Assistant Manager looked after the interest of the clients but the

same again does not speak highly of the petitioner and shows the

redundancy of the petitioner and the petitioner having no role whatsoever in

the working of the respondent Bank. Such a person in any case deserves no

relief in the exercise of discretion under Article 226 of Constitution of India.

21. The counsel for the petitioner has next contended that the petitioner

has in this petition also raised the ground of discrimination. Attention is

invited to ground 'M' where the petitioner has alleged that one Scale IV

official Shri Hari Ram looking after the post of Chief Manager, Personnel

(i.e. the same post which the petitioner was occupying) was absent without

prior permission for more than four years but was treated differently.

Attention is also invited to the counter affidavit to show that except for

stating that the case of the said Hari Ram was different, no other explanation

has been given.

22. The counsel for the petitioner however fairly admits that the said

ground has been taken for the first time in this petition and in fact not raised,

neither before the Inquiring Authority (before which the petitioner in any

case was ex parte and did not appear) nor before the Appellate Authority of

the respondent Bank.

23. I am however of the view that there can be no concept of negative

equality (See UOI Vs. M.K. Sarkar (2010) 2 SCC 59). Even if it were to be

believed the respondent Bank had failed to invoke its disciplinary powers

against another similarly placed as the petitioner, the same would not

constitute a ground to set aside the action of the Disciplinary Authority qua

the petitioner, if otherwise found in accordance with law.

24. The counsel for the petitioner has next contended that the application

dated 2nd January, 1999 of the petitioner for leave, was dealt with only in

May, 1999 i.e. after the petitioner had been charge sheeted.

25. The counsel for the respondent Bank however draws attention to the

letter dated 23rd February, 1999 of the respondent Bank to the petitioner

stating that the said letter dated 2nd January, 1999 had been delivered by the

representative of the petitioner only on 22nd January, 1999 and the request in

the letter dated 2nd January, 1999 was declined and the petitioner was asked

to report for duty.

26. The counsel for the petitioner is thus not correct in contending that the

application of the petitioner for leave remained pending.

27. The counsel for the petitioner has next contended that the explanation

offered by the petitioner, of the petitioner having to leave hurriedly without

leave being sanctioned owing to the medical emergency of his brother-in-

law, has not been dealt with.

28. The counsel for the respondent has contended that as is apparent from

the contemporaneous correspondence including the letter of rejection of

leave, the request of the petitioner was considered. It is further contend that

the ground of illness of the brother-in-law was vague without naming any

disease or the hospital if any to which the brother-in-law was admitted or

furnishing any documents. It is also contended that though the Rules &

Regulations of the respondent Bank require an officer as the petitioner to

communicate the address at which he could be contacted but the petitioner at

no time furnished the particulars of his USA address, even when called upon

to do so, and merely gave the address of Yamunanagar for correspondence

and where he admittedly was not present.

29. The aforesaid conduct of the petitioner leads me to think that the

petitioner did not want the respondent Bank or anyone to even know as to

where in USA he was / is. Perhaps the petitioner wanted to avoid the

respondent Bank contacting the US Embassy or the US Government and

before whom the petitioner may have given a different version.

30. The counsel for the petitioner has lastly urged that the documents

were not given along with charge sheet. He is however unable to state as to

what documents were required to be given; in fact, the charges on which the

petitioner has been found guilty pertain to admitted factual position and such

pedantic arguments of non-compliance of the principles of natural justice

which have not affected the outcome of a proceeding can have no place in

the present state of affairs.

31. The counsel for the petitioner has lastly drawn on the sympathy aspect

and has contended that the Court can interfere with the punishment awarded

so that the petitioner at least gets the fruits of 27 years of services rendered

to the respondent Bank. Reliance in this regard is placed on Ranjit Thakur

Vs. Union of India AIR 1987 SC 2386 and Union of India Vs. Giriraj

Sharma AIR 1994 SC 215.

32. The counsel for the respondent Bank has invited attention to Sukhdev

Singh supra where the Division Bench of this Court observed that

functioning of the public bodies would come to a naught if their employees

were to be permitted to absent themselves and join back at their whims and

fancies and that by service of notices / memos ample opportunity was given

and the workman in that case and he was not entitled to contend that his

dismissal was not fair. It is further contended that the entire argument of

non-compliance of regulations aforesaid is without any basis. It is contended

that even the report of the Inquiring Authority relies only on the documents

of the petitioner itself.

33. The counsel for the petitioner in rejoinder states that the petitioner has

along with additional affidavit filed documents of the medical treatment of

his brother-in-law.

34. Having considered the matter, I repeat, with the benefit of hindsight, it

is quite clear that the petitioner intentionally made a choice to migrate to

USA and the present cannot be said to be a case where the petitioner, owing

to an emergent situation in his family, had to leave station without intimation

as he was required to do as per the rules of his employment. The subsequent

conduct of the petitioner, of not returning to India is indicative of the

petitioner in December, 1998 having left the country without any intention

to return and the petitioner, besides enjoying the benefits of migration to

another country is merely attempting to reap benefits from employment

which he chose to abandon. The counsel for the petitioner admits that the

employment rules of the respondent Bank do not permit payment of retiral

benefits in the event of dismissal. If the petitioner was honest, he ought to

have before migration informed the respondent Bank of his decision and

applied for voluntary retirement. The petitioner however chose to indulge in

hoodwinking and has not made a clean breast of things.

35. Even in this petition, the relief of reinstatement is sought when it is

clear that the petitioner had no intention to come back. If the petitioner had

left in December, 1998 owing to an emergency, he would have definitely

come back after say three months or six months. The petitioner however did

not do so and is only attempting to reap retiral benefits which are not due to

him.

36. The counsel for the petitioner at this stage states that the petitioner can

be deprived of gratuity, only if loss is shown to have been caused to the

respondent Bank and since the limitation for the petitioner to seek gratuity

has expired, permission for filing the said claim be given.

37. All that can be observed is that the petitioner, if entitled to in

accordance with law, would be entitled to make a claim for gratuity.

38. There is no merit in the petition which is dismissed. Though the

petitioner has unnecessarily taken up judicial time inspite of having not

returned to India but I refrain from imposing any costs on the petitioner in

the hope that good sense will prevail over the petitioner. If however the

petitioner desires to take the matter further, in that case the petitioner shall

also be liable for costs of this petition assessed at Rs.25,000/-.

RAJIV SAHAI ENDLAW, J

JULY 28, 2014 pp