IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.01.2010 CORAM: THE HON’BLE MR. JUSTICE T.S.SIVAGNANAM W.P.Nos.9266 & 9267 of 2000 K.Vishwanathan ... Petitioner in all W.Ps. -vs- 1.The Deputy General Manager/ Disciplinary Authority Indian Bank, C.O.Vigilance Department, 31, Rajaji Salai, Chennai – 600 001. 2.General Manager (I), Indian Bank, 31, Rajaji Salai, Chennai – 600 001. 3.Executive Director, Indian Bank, 31, Rajaji Salai, Chennai – 600 001. 4.Indian Bank, rep. by its General Manager (Personnel), 31, Rajaji Salai, Chennai – 600 001. .. Respondents in all W.Ps. Prayer in W.P.No.9266/2000 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records from the respondent relating to the order No.2080 VG DPC:99 dated 12.04.1999 marked as (Ex-A) imposing a punishment of reduction of pay by two wages and no increment for two years with cumulative effect as confirmed by the 2nd respondent, the appellate authority dated 13.11.1999 and the order of the 3rd respondent vide ref No.152:DPC:2000 dated https://hcservices.ecourts.gov.in/hcservices/ 29.04.2000, rejecting the request for review and quash the same and consequently direct the respondents to give a posting to the petitioner as Assistant Manager in any of the branches of the respondent Bank and to pay him the salary from 28.06.1995 with interest at the rate of 18% p.a. With all increments the other attendant benefits, award costs. Prayer in W.P.No.9267/2000 : The Writ Petition filed under Article 226 of the Constitution of India for issue of Writ of Certiorarified Mandamus to call for the records from the respondents relating to the charge sheet bearing reference no.509:VG:DPC:2000 dated 01.02.2000 marked as (Ex-A), charging the petitioner for absence from 28.06.1995 consequential punishment order dated 29.01.2007 (Ex-B) issued by the 1st respondent and the order of the 2nd respondent dated 15.05.2007 confirming the punishment and quash the same and consequently direct the respondents to treat as if the petitioner continued as Assistant Manager in JMG Scale I and superannuated from service on 28.02.2007 on attaining the age of 60 years, treat the period of absence as on duty and that the petitioner continued as Assistant manager in JMG Scale I, grant backwages for the period of non employment, pay pension from 01.03.2007 on the pay which the petitioner would have drawn had the petitioner continued in employment and retired on 01.03.2007 on attaining the age of Superannuation, award costs. For Petitioner in all W.Ps. : Mr.N.G.R.Prasad for M/s.Row & Reddy For Respondents in all W.Ps. :Mr.P.Renganathareddy for M/s.King & Patridge for R1 to R4 Common Order The challenge in the above writ petitions is to the orders of punishment passed against the petitioner. 2. In W.P.No.9266 of 2000, the petitioner has questioned the correctness of the charge memo dated 01.02.2000 charging the petitioner for unauthorised absence from duty from 28.06.1995 which culminated in an order dated 12.04.1999 imposing a major penalty of reduction of pay by two stages in the time scale of pay drawn by the petitioner for a period of two years and that the https://hcservices.ecourts.gov.in/hcservices/ petitioner will not earn increments of pay during the period of two years and on expiry of the two year period, the reduction will have the effect of postponement of future increments of his pay. 3. In W.P.No.9267 of 2000, the petitioner has questioned the charge memo dated 01.02.2000 charging the petitioner for unauthorised absence from 19.12.1997 even after the imposition of punishment by order dated 12.04.1999 and even thereafter failed to report for duty, which ultimately culminated in an order of punishment dated 29.01.2007 imposing the major penalty of compulsory retirement from service. The appeals which were filed by the petitioner against the orders of punishment came to be dismissed and the petitioner is before this Court. Background facts: 4. The petitioner joined the service of the respondent Bank on 03.08.1970 as clerk and during June 1984, the petitioner was posted as Assistant Manager at Teynampet Branch which post is a Junior Management Grade Scale -I post. By order dated 14.09.1994, the petitioner was transferred to the Regional Office at Kancheepuram. According to the petitioner, as he was suffering from acute gastric ulcer, needing timely home food and proper medical treatment, he could not move out of Madras and further his wife was in a non transferable post, employed as Assistant Section Officer in the Tamil Nadu Secretariat. By order dated 27.06.1995, the petitioner was relieved from the Teynampet Branch in which branch the petitioner was working from 06.06.1984. Even prior to the order date 27.06.1995, the Manager of the Teynampet Branch by letter dated 02.02.1995 addressed the Assistant General Manager forwarded with his recommendations the representation received from the petitioner for reconsidering and cancelling the posting orders to Regional Office, Kancheepuram. On 05.07.1995, the petitioner addressed the General Manager (Admin.) stating that he had requested the change of posting to nearby branch on medical grounds and he was not favoured with a reply from the Chairman and stated that he will not be able to report to Kancheepuram, since he was already under treatment and requested to grant one year time or until a new branch posting is made. The petitioner further stated that he shall submit his leave letter along with fitness certificate at the time of joining duty. This letter dated 05.07.1995 was followed by another letter dated 12.09.1995 reiterating the request for reconsideration and cancellation of https://hcservices.ecourts.gov.in/hcservices/ posting orders to Kancheepuram. Subsequently, on 14.09.1995, the petitioner furnished a medical certificate which stated about his health condition during the relevant point of time. The petitioner made further representation on 16.09.1995 through the Manager of the Teynampet Branch which was recommended and forwarded to the General Manager (personnel) by the Senior Manager's letter dated 25.01.1996. In the mean time, the Chief Manager on 02.04.1996 reported to the Personnel Department stating that the petitioner has been relieved from Teynampet Branch on 27.06.1995 but he is yet to join at Kancheepuram and since the order of transfer was not cancelled, the Chief Manager requested for instructions in the matter. According to the petitioner, he went to Kancheepuram on 28.06.1996 to join duty but was informed that a substitute had already been posted in his place and that he has been promoted and posted as Scale II Officer at Vadamadhimangalam Branch, Tiruvannamalai District. On 23.10.1996, the petitioner represented to the Zonal Manager renouncing his promotion as Scale II Officer and requested for consideration of his request. Copy of the said representation dated 23.10.1996 was also marked to the Regional Manager, Regional Office, at Kancheepuram. On 18.10.1997, the petitioner addressed another representation to the Deputy General Manager (Personnel) reiterating the reasons stated earlier and requested that he may be posted in any branch in Madras City. The petitioner also cited various instances which according to the petitioner were done by him during his service for the welfare of the bank. On 18.12.1997, a charge memo was served on the petitioner stating that he had absented from duty from 28.06.1995 unauthorisedly after being relieved on 27.06.1995 from Teynampet Branch and that he neither reported for duty at Kancheepuram nor submitted any leave application for his absence. Therefore, it was stated that the petitioner was unauthorisedly absent from duty on 28.06.1995 and failed to obey the instructions of higher authorities contained in the relieving order dated 27.06.1995. These acts were stated to constitute a breach of Regulation 13-I of Indian Bank Officers Employees Conduct Rules 1976 and if the allegations were proved would constitute breach of Regulation 3-I in that the petitioner failed to take all possible steps to ensure and to protect the interest of the bank and discharge his duties with utmost devotion and diligence and as per Regulation 24 a breach of Regulation 3-I was deemed to constitute a misconduct and is punishable under Regulation 4. The petitioner was granted 15 days time to submit his reply. Parallely, the petitioner had been https://hcservices.ecourts.gov.in/hcservices/ requesting for reconsideration of his transfer by representations dated 19.12.1997 and 31.12.1997. The Regional Manager, Kancheepuram, by letter dated 03.01.1998 informed the petitioner to contact the zonal office and get instructions regarding the rejoining of duty since as per their records the petitioner has been posted to Vadamadhimangalam Branch by order dated 14.05.1996. The petitioner submitted his explanation to the charge memo on 12.01.1998, by communication dated 11.03.1998, the Assistant General Manager informed the petitioner that his request for posting to Central Office or any Branch in Chennai City is declined and advised him to report for duty at Vadamadhimangalam Branch, Tiruvannamalai District. There has been subsequent representations made by the petitioner for retaining him at Chennai and also stating that he had sustained injuries in a road traffic accident. These representations were not favourably considered and petitioner was advised to report for duty at Vadamadhimangalam. A departmental enquiry was commenced by appointing an Enquiry Officer. The petitioner participated in the enquiry proceedings and the petitioner was also assisted by a defence assistant in the inquiry. The Presenting Officer on behalf of the bank examined their witnesses and marked documents and the petitioner was also given opportunity to lead evidence and mark his documents. 5. The Enquiry Officer by his report dated 16.12.2008 held that the petitioner is guilty of the charge. The petitioner was afforded an opportunity to submit his objections to the Enquiry Officer's report and by reply dated 05.01.1999, the petitioner submitted his objections. The disciplinary authority by order dated 12.04.1999, imposed penalty of reduction of pay by two stages for two years during which period, the petitioner would not earn increments and after the expiry of the period, the reduction will have the effect of postponement of future increments. The petitioner preferred an appeal to the General Manager by appeal petition dated 27.05.1999, which was to be dismissed by order dated 13.11.1999. 6. It is further stated that after the imposition of said major penalty, the Assistant General Manager by communication dated 22.11.1999 stated that the petitioner's request for posting at Chennai was declined by letter dated 11.03.1998 and request to join at Kancheepuram was also declined vide letter dated 02.04.1998 and that the petitioner was advised by letter dated https://hcservices.ecourts.gov.in/hcservices/ 22.07.1998 to report for duty at Vadamadhimangalam and since he has failed to report for duty and continued to remain absent from 09.12.1997 till the date of the said letter dated (22.11.1999) without submitting leave application or obtaining sanction. The petitioner was called upon to submit his explanation, which was given by the petitioner on 13.12.1999. The disciplinary authority being not satisfied with the explanation dated 13.12.1999 issued a charge memo dated 01.02.2000 containing two articles of charge namely that despite issuance of charge memo on 18.12.1997, for unauthorised absence from 28.06.1995. The petitioner failed to report for duty and thus he has been unauthorisedly absented from duty even after 19.12.1997 without submitting leave application or obtaining leave sanction from the competent authority. The second charge being that the petitioner disobeyed the lawful order of higher authorities, by not reporting for duty at Vadamadhimangalam Branch. The petitioner was granted 15 days time to submit his reply in defence. On 12.02.2000, the petitioner submitted a petition to the Executive Director of the Bank to review the order of punishment imposed on the first charge memo. On 17.02.2000, the petitioner submitted his explanation to the second charge memo dated 01.02.2000. The appeal given for review the punishment on the first charge memo came to be rejected by the Executive Director of the Bank by order dated 28.04.2000. The inquiry was ordered on the second charge memo by an order dated 20.05.2000. At that stage, the petitioner filed W.P.No.9267/2000, questioning the charge memo dated 01.02.2000. An Inquiry Officer came to be appointed to enquiry into the second charge memo and a report was submitted by the enquiry authority holding that the charges are proved. The finding of the enquiry officer was forwarded to the petitioner and the petitioner submitted his comments on 28.01.2003. Thereafter, the matter was considered by the disciplinary authority and the penalty of compulsory retirement was imposed on the petitioner by order dated 29.01.2007. The appeal petition filed on 22.02.2007 was rejected on 15.05.2007. Subsequently, the petitioner filed W.P.M.P.No.421 of 2009 in W.P.No.9267 of 2000 for amendment of the prayer to quash the order of compulsory retirement which came to be ordered on 09.07.2009. Thus, the petitioner is before this Court in the above two Writ Petitions questioning the correctness of the orders of penalty imposed on him. https://hcservices.ecourts.gov.in/hcservices/ Contentions on behalf of the petitioner: 7. Mr.N.G.R.Prasad, the learned counsel for the petitioner questioned the correctness of the impugned orders on various grounds and would submit that since the allegations in both the charge memo related to same set of facts, and common arguments are being advanced in both the writ petitions. 8. The first among the several contentions was that the charge against the petitioner that he absented without leave from 28.06.1995 is incorrect since the petitioner had submitted the leave letter dated 05.07.1995 and that the finding of the disciplinary authority as well as the appellate authority stating that the said letter dated 05.07.1995 is not a leave letter is perverse and therefore, this Court has to interfere in the said finding. It is next contended that the disciplinary authority exceeded beyond the scope of the allegation contained in the charge memo dated 18.12.1997 by holding that the petitioner did not report for duty at Kancheepuram till 22.07.1998 and that the recommendation letters of the Branch Manager of the Teynampet Branch and the Chief Manager by letters dated 02.02.1995 and 18.06.1996 were not taken into consideration. It is further stated that the petitioner cannot be stated to be absent without leave after 14.05.1996 when he was transferred on promotion to Vadamadhimangalam Branch which promotion came to be declined by the petitioner on 05.06.1996 and 23.10.1996. Therefore, having promoted the petitioner to the next higher post namely the post of Scale II Officer, it is deemed that the allegations contained in the charge memo dated 18.12.1997 does not survive any longer. Further, the petitioner having declined to accept the promotion by submitting his letters dated 15.06.1996 and 23.10.1996, no fresh orders of posting in the cadre of Junior Grade Scale I were issued and therefore, the question of unauthorised absence does not arise. It is further stated that the petitioner cannot be compelled to accept the order of promotion. The petitioner after having declined the promotion, was not allowed to join at Kancheepuram which alone would be sufficient to hold that there is no unauthorised absence. 9. Learned counsel relied on the observations of the Enquiry Officer in his report wherein, the Enquiry Officer stated that the petitioner had an intention to join. Learned counsel would https://hcservices.ecourts.gov.in/hcservices/ further set out the various contributions made by the petitioner to the bank and that the petitioner was an honest officer and has been put to irreparable trauma on account of the impugned order. Finally, it is contended that the punishment imposed on the petitioner is excessive and calls for interference by this Court. 10. Learned counsel relied on the decisions of the Hon'ble Supreme Court reported in Hotel Ambassador Pallava (represented by its Executive Assistant Manager, Sri Vasant Sampth), Chennai Vs. Presiding Officer, Second Additional Labour Court, Chennai and another [2005 (4) LLN 654], Raj Bahadur Sharma (dead) through L.Ps., Vs. Union of India and others, [AIR 1998 SC 2393], D.Ramaswami Vs. State of Tamil Nadu [1982 (1) LLJ 349], Facts as stated by the respondent Bank: 11. Mr.P.Renganatha Reddy, learned counsel appearing for the respondent Bank would submit that the bank had been extraordinarily lenient towards the petitioner and that inspite of the indulgence granted the petitioner refused to obey the lawful orders of the management which resulted in the impugned orders of punishment. 12. Learned counsel would further submit that there is no allegation of any procedural irregularity or violation of any provisions of the bank regulations and the enquiry proceedings were conducted in a fair and free manner, the petitioner was afforded adequate opportunity to defend himself and he was assisted by a defence assistant in the enquiry proceedings, full and effective opportunity was given to the petitioner to bring out his defence and after considering the all the aspects of the matter, the disciplinary authority initially imposed a penalty of reduction of pay which though classified under major penalty ought to be construed as a lenient view taken by the management. It is further stated that even thereafter, the petitioner did not endeavour to obey the lawful orders of the management which resulted in the second charge memo and even in said proceedings the petitioner was afforded reasonable and adequate opportunity to set out his defence which ultimately culminated in the order of compulsory retirement. 13. Learned counsel would further submit that certain facts https://hcservices.ecourts.gov.in/hcservices/ as stated in the counter affidavit would be very relevant to appreciate the conduct of the petitioner and as to how the respondent Bank has viewed the same in a very balanced manner. It is submitted that the petitioner joined duty as clerk in the Anna Salai Branch on 03.08.1970 and was promoted as an officer on 20.04.1974 and posted to Karamadai branch as Assistant Manager. The petitioner after accepting the promotion submitted a representation for reversion as clerk on the ground that his wife is employed in a non transferable post at Chennai. The management considered his request favourably, accepted his reversion and retained him at Anna Salai Branch. By order dated 16.10.1975, he was promoted as officer cadre on merit basis along with other eligible candidates and the petitioner was posted at Kancheepuram. Even before joining at Kancheepuram, the petitioner represented for posting at Chennai on the same grounds of his wife non transferable employment. The petitioner joined Kancheepuram on 14.11.1975. The management sympathetically considered his request and the petitioner was posted to Adayar Branch and he joined on 22.09.1976 and on his further representation he was transferred to Chetpet Branch. After the normal tenure of 3 ½ years, he was transferred to Arcot Branch as an accountant by order dated 04.08.1980. His request for retention at Chennai was declined on 25.10.1980 and the petitioner joined Arcot Branch on 27.10.1980 and it is stated that from the subsequent date onwards, he did not attend office and his attendance at Arcot Branch was irregular. On a request made the petitioner he was transferred to Vellore Branch by order dated 04.08.1982, but did not choose to report at Vellore, which was the place of his choice, and represented for transfer to Singaperumalkoil which came to be declined on 19.10.1982. The petitioner remained absent continuously up to 29.11.1982 and attended office at Vellore Branch 30.11.1982. Thereafter the petitioner was absent from 01.12.1982 to 28.04.1983 and joined on 29.04.1983 and the Branch relieved him on the said date to attend interview at Villupuram for Scale II promotion and thereafter the petitioner did not attend duty and joined Vellore Branch on 14.11.1983 and was absented from next day onwards between the period from 18.10.1983 to 03.03.1984. The petitioner was again on unauthorised absence. Therefore, it is submitted that for the period from 01.09.1982 to 29.05.1984 the petitioner reported for duty only for about four days and inspite of all these, his request was considered and he was transferred to Teynampet Branch on 26.05.1984 and joined duty on 06.06.1984. After four years, the petitioner was posted to Regional Office https://hcservices.ecourts.gov.in/hcservices/ Mumbai on 13.05.1988 and on his representation he was again retained in Teynampet Branch from 06.06.1984 to 27.06.1995, this transfer to Mumbai was cancelled by the petitioner by citing that he fell under the category spouse joining spouse. The transfer to rural branch service made on 30.05.1990 was also cancelled on 04.08.1990, based on the petitioner's representation and his transfer to Vadamathimangalam Branch on 10.05.1984 was also represented and his request for retention at Teynampet was declined and he was posted to Regional Office at Kancheepuram on 14.09.1994 cancelling the earlier order and was relieved on 27.06.1995 and he did not join duty at Kancheepuram and continued to remain absent. Therefore, learned counsel would submit that this is a clear case of unauthorised absence from duty and accordingly charge memo dated 18.02.1997 was issued which resulted in a punishment of reduction of pay. It is further submitted that when the petitioner's transfer to Regional Office Mumbai was cancelled vide letter dated 30.05.1988 he was informed that after being retained at Madras for period of three years he would be transferred outside his native state. According to the transfer policy, the officers would be required to serve at a Branch/Office normally for a period upto 3 to 4 years and at a Centre for a maximum period of 8 years. On every promotion officers are liable for transfer. The petitioner had completed 10 years in the same branch and he was relieved in absentia on 27.06.1995 that the instructions to report at Kancheepuram. The letter dated 05.07.1995 cannot be an interim leave letter since the letter did not contain the basic requirements of regular leave letter such as request for leave, reason for leave, period of leave and nature of leave etc., 14. Reliance was placed on Regulation 13, proviso 2 of the conduct regulations which states that no officer shall originally absent himself in case of sickness or accident without submitting a proper medical certificate provided that in case of temporary in dispossession or sickness of casual nature the production of medical certificate made at the discretion of the competent authority be dispensed with. It is stated that the petitioner in his letter dated 05.07.1995 requested for grant of one year time until a new branch posting was made and he did not submit any regular leave letter with medical certificate and therefore, the letter dated 05.07.1995 cannot be termed as a leave letter. It is further stated that the petitioner did not join Kancheepuram till 14.05.1996 and in the meanwhile, the promotion policy formulated https://hcservices.ecourts.gov.in/hcservices/ during April 1996, under normal channel, the bank gave promotion to 315 officers and the petitioner was one among them and he was allotted to Vellore zone. It is further submitted that the refusal to accept the offer of promotion would not entitle the petitioner to continue at the same Centre/branch indefinitely and petitioner is one among the 315 officers who were given promotion and it cannot be stated that the petitioner was not aware of the same, since the circular dated 11.04.1996 was displayed in the staff notice board and communicated to all of them. Therefore, it is submitted that the grant of promotion has nothing to do with the allegations in the charge memo dated 18.12.1997 and it is erroneous to contend that the allegations in the charge are no longer valid. It is further stated that the intimation regarding the petitioner's promotion was sent by the respondent Bank only for the first time on 11.03.1998 is factually incorrect since he refused the offer of promotion vide letter dated 23.10.1996. It is stated that by making such contradictions, the petitioner has committed perjury. 15. It is further stated that the petitioner had been in the habit of adopting one tactic or other to retain himself at Chennai and the petitioner was holding a responsible job which is transferable and transfer is an incident of service and the petitioner cannot be allowed any special privilege. Therefore, learned counsel would submit that the impugned orders of punishment do not call for any interference. 16. Learned counsel for the respondents relied on the following judgments on the scope of interference in such matters more particularly, cases relating to unauthorised absence. 2009 (5) SCC 565, State of Punjab Vs. Dr.P.L.Singla [2008 (8) SCC 469], Union of India and Others Vs. Dwarka Prasad Tiwari [2007 (2) MLJ 278 (SC)], S.C.Saxena Vs. Union of India and others [2006(9) SCC 583], General Manager, Appellate Authority, Bank of