1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR CIVIL WRIT No. 3619 of 1994 SANJEEV KUMAR V/S DY.GENERAL MANAGER & ORS Mr. MANOHAR SINGH for Mr. AK SINGH, for the appellant / petitioner Mr. ARUN BHANSALI for Mr. PK BHANSALI, for the respondent Date of Order : 14.9.2009 HON'BLE SHRI N P GUPTA,J. ORDER The petitioner has filed the writ petition for direction to be reinstated in service as per Annexure-2, and to be given full back wages with all consequential benefits for his dismissal period, and to quash Annexure-2 to that extent, wherein it is directed that the petitioner is not entitled to salary for the dismissal period. The necessary facts are, that the petitioner alleges to have been initially appointed as clerk cum cashier on 15.7.1980 in the Laxmi Commercial Bank Ltd., which in the year 1985 merged into Canara Bank, and thus he was absorbed in the services of Canara Bank. While so working, he claims to have remained sick from 6.6.1988 to 27.1.1989. However he was charge-sheeted on 30.3.1989 for unauthorised absence. The Disciplinary Authority after enquiry imposed punishment of termination. This was challenged by the 2 petitioner by way of appeal, which appeal was decided by order dt. 22.12.1992, reinstating the petitioner, and imposing punishment of stoppage of increment for a period of three years with cumulative effect, and also directing that from the date of dismissal till he reports for duty consequent upon this order, this period shall not be reckoned for duty for any purpose whatever. It is contended by the petitioner that this order was never conveyed to the petitioner, nor it was received by the petitioner. It is then alleged that in the year 1993 the petitioner's mother expired, by which he was mentally depressed, and had gone to near relatives at Jaipur, and in April, 1994 the petitioner came to know of the letter which was issued by the Bank, being dated 23.4.1993, asking the petitioner to join Makrana Branch (Annexure-3); and the petitioner immediately went to Makrana Branch, but he was not allowed to join services. Then, he submitted an application that the letter was not delivered to the petitioner, and in the joint family of about 25 members including his brothers and father, somebody might have received this letter, with the result that he could not be intimated in time; apart from the fact that at the relevant time he was living at Jaipur. It is on account of his not being allowed to join the services, that the petitioner has filed this writ petition for the above reliefs. A reply to the writ petition has been filed, contending interalia, that the petitioner did not appear before the Enquiry Officer, and the enquiry had 3 to proceed ex-parte, the appellate order has been produced by the petitioner as Annexure-2, which is dated 22.12.1992, and not 22.10.1992 as pleaded, and the petitioner has not disclosed as to how, through whom, and on what date, did he come to be in possession of the said order Annexure-2, which shows that the petitioner has not come to the Court with clean hands. The allegation about the petitioner coming to know of Annexure-3 in April, 1994 was denied, and it was pleaded, that it was sent by registered post, which was delivered against proper acknowledgment due. Necessary documents in that regard have also been filed by the respondents. It was also pleaded, on the other hand, that the order Annexure-2 was communicated to the petitioner by proceeding dt. 9.1.1993, and he was directed to report on duty. The proceedings dated 9.1.1993 were sent to the petitioner on his last known address on 11.1.1993, the copy of the communication in this regard has been produced as Annexure-R/1, which was sent by registered post. The proceeding of 9.1.1993, and the copy of the order Annexure-2 have also been produced. It was alleged that the story of petitioner approaching to Makarana Branch in pursuance of Annexure-3 on 27.4.1994, and having been refused to be allowed to join is totally wrong and afterthought. The letter Annexure-4 was alleged to be a manufactured document, fabricated to suit him. It was maintained that the petitioner did not approach the Branch Manager whether on 27.4.1994, or on any other date. It 4 was accordingly contended, that in view of Annexure-3, since the petitioner did not report on duty, it was presumed that the petitioner has no intention to serve in the Bank, and has voluntarily chosen not to accept the offer made by the Bank. Arguing the writ petition, the pleadings taken in the writ petition were reiterated. On being asked, the learned counsel could not even give out, as to when the petitioner's mother died, and as to when did he go to Jaipur, when did he return therefrom, who received the letter Annexure-3, and how did he come into possession of Annexure-2. This is a different story, that despite reply having been filed way back on 8.11.1996, for the last more than 10 years no attempt has been made on the side of the petitioner, either to controvert the stand taken by the respondent, or to substantiate that the stand taken by the petitioner in the writ petition is correct. In view of the above, when the petitioner did not report on duty, despite receipt of Annexure-3, within the time stipulated therein, and there is no reliable material on record to show, that the petitioner approached the Bank, and submitted Annexure-4, more particularly also because, the writ petition has been filed even much later thereafter as late as on 1.8.1994, which all show, that the stand taken by the petitioner has no trace of truth. Learned counsel placed reliance on the 5 judgment of Hon'ble the Supreme Court in Novartis India Limited Vs. State of West Bengal & Ors., reported in (2009) 3 SCC 124, to contend that by Annexure-3 or by virtue of Annexure-3, the services of the petitioner could not come to an end, inasmuch as, if the employee does not join at the place at which he is posted, it may amount to his misconduct, but then, for that disciplinary proceedings were required to be initiated, while in the present case, admittedly no departmental proceedings had been initiated against the petitioner, on account of alleged non-joining, pursuant to Annexure-3. I have gone through the judgment of Hon'ble the Supreme Court, wherein in para 18 it has been held as under:- “18. When an employee does not join at his transferred place, he commits a misconduct. A disciplinary proceeding was, therefore, required to be initiated. The order of discharge is not a substitute for an order of punishment. If an employee is to be dismissed from services on the ground that he had committed a misconduct, he was entitled to an opportunity of hearing. Had such an opportunity of hearing been given to them, they could have shown that there were compelling reasons for their not joining at the transferred places. Even a minor punishment could have been granted. The appellant precipitated the situation by passing a post-haste order of termination of their services.” However, a look at that judgment shows, that the case is distinguishable on facts. In that case the employees were appointed by the erstwhile company being M/s. Sandoz (India) Ltd., as sales 6 representatives, and in terms of appointment they could be transferred from one place to another, in which process they were transferred on or about 17.10.1994. This transfer had become subject matter of challenge in various litigations, and ultimately the challenge failed. Earlier also there had been litigation in that regard. It was in that factual scenario, that the above finding was arrived at. Then it is also significant to note, that in that case learned Labour Court had also ordered reinstatement, and the question was substantially regarding back- wages. In my view, thus, the pre-dominant consideration working in the mind of the Hon'ble Supreme Court was, as to how the aspect of back-wages is to be determined, and Hon'ble the Supreme Court did not feel inclined to interfere in the order of reinstatement, passed by the learned Courts below, at the behest of the employer. Thus, in my view, this judgment is clearly distinguishable. Here is a case where in disciplinary proceedings, the appellate authority had interfered in favour of the petitioner, and substituted the punishment by ordering reinstatement and imposing a lesser punishment, and even thereafter, despite receipt of communication to join at a particular place of posting he did not join for more than one year, while in the communication it was clarified, that this will amount to his intention, not to accept offer of reinstatement made by the Appellate Forum. The factual aspect of the controversy, regarding receipt of 7 Annexure-3, has already been dealt with by me above. In view of the above, I do not find any sufficient ground to interfere in favour of the petitioner, or to grant the reliefs as claimed. The writ petition is, therefore, dismissed. Parties shall bear their own costs. ( N P GUPTA ),J. /Sushil/