IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 1ST DECEMBER 2008 / 10TH AGRAHAYANA 1930 OP.No. 25108 of 2001(L) ----------------------- PETITIONER(S): --------------- S.MUKUNDAN, AGED 57 FLAT NO.C-4, V.B.COURT, L.F.C.ROAD, KALOOR, COCHIN-17. BY ADV. SRI.T.L.ANANTHASIVAN SMT.P.LISSY JOSE. RESPONDENT(S): --------------- 1. THE CHAIRMAN & MANAGING DIRECTOR, UNION BANK OF INDIA CENTRAL OFFICE, NARIMAN POINT, MUMBAI - 400021. 2. THE GENERAL MANAGER(P) UNION BANK OF INDIA CENTRAL OFFICE, NARIMAN POINT, MUMBAI - 400021. ADV. SRI.A.S.P.KURUP, SC, UBI FOR R1 & R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/12/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO.25108/01 :2: ORDER ON C.M.P.NO.41008/01 IN O.P.NO.25108/01 DISMISSED 01/12/08 SD/- S.SIRI JAGAN, JUDGE. APPENDIX PETITIONER'S EXHIBITS: EXHIBIT P1: TRUE COPY OF THE APPEAL FOR REVIEW DT.10-6-2000 AGAINST THE PUNISHMENT OF COMPULSORY RETIREMENT. EXHIBIT P2:TRUE COPY OF THE ORDER PASSED BY THE REVIEWING AUTHORITY AGAINST THE PETITIONER DT.30.9.2000. EXHIBIT P3:TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 29.11.2000. EXHIBIT P4:TRUE COPY OF THE LETTER ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER DT.6.01.01. EXHIBIT P5:TRUE COPY OF THE APPEAL PETITION SUBMITTED BY THE PETITIONER TO THE 1ST RESPONDENT DT.29.1.2001 EXHIBIT P6:TRUE COPY OF THE REPLY BY THE 2ND RESPONDENT TO THE PETITIONER DT.21.3.2001. RESPONDENTS' EXHIBITS; EXHIBIT R1A:TRUE COPY OF UNION BANK OF INDIA SERVIE REGULATIONS 1979. EXHIBIT R1B:TRUE COPY OF LETTER DT.24.6.1998 GIVEN BY THE RESPONDENT BANK TO THE PETITIONER. EXHIBIT R1C:TRUE COPY OF LETTER DT.30.6.1998 ALONG WITH FILLED CLAIM FORM GIVEN BY PETITIONER TO RESPONDENT BANK. EXHIBIT R1D:TRUE COPY OF LETTER DT.6.7.98 GIVEN BY PETITIONER TO RESPONDENT BANK. EXHIBIT R1E:TRUE COPY OF LETTER DT.10.10.2000 GIVEN BY PETITIONER TO THE 1ST RESPONDENT. EXHIBIT R1F: TRUE COPY OF LETTER DATED 10.10.2000 GIVEN BY PETITIONER TO THE 2ND RESPONDENT. /True Copy/ P.A.To JUDGE. S.SIRI JAGAN, J. ----------------------------------------------- O.P. No. 25108 OF 2001 ----------------------------------------------- Dated this the 1st day of December, 2008 JUDGMENT The petitioner was a Branch Manager at Ernakulam region of the Union Bank of India. He was subjected to disciplinary proceedings which ultimately resulted in imposition of punishment of compulsory retirement. He challenged the same in appeal which was also rejected. He filed Ext.P1 review petition before the 1st respondent, who considered the same and passed the following order by Ext.P2: "The major penalty of compulsory retirement imposed on Shri.S.Mukundan by the Disciplinary Authority vide order no.CO:IRD:193:98 dated 8th June, 1998 and upheld by Appellate Authority vide order No.CO:IRD:3076:99 dated 19th July, 1999 by and is hereby reduced to major penalty of reduction by five stages in time scale of pay. Minor penalty of 'Censure' imposed vide order no.CO:IRD:192:98 dated 8th June, 1998 by the Disciplinary Authority is upheld. Shri.Mukundan is required to report to Dy.General Manager, Nodal Regional Office, Ernakulam for further instructions regarding his place of posting. he will be reinstated in the services of the Bank from the date he reports to Nodal Regional O.P.NO.25108/01 2 Office, Ernakulam as aforesaid. Shri.Mukundan is informed that the period from the date of his compulsory retirement till he reports as aforesaid on his reinstatement will be treated as Extra Ordinary Leave on loss of pay/allowances and without any benefits". 2. In this Original Petition, the petitioner challenges that part of the Ext.P2 order whereby the period of absence from the date on imposition of punishment till reinstatement pursuant to Ext.P2 order has been treated as extra ordinary leave on loss of pay and allowances without any benefits. The petitioner raises two contentions . First is that, when he has been reinstated in service after reducing the punishment, he is entitled to full back wages for the period he was kept out of service on account of the punishment . According to him, even for a person under suspension subsistence allowance is due and therefore there is no reason for denying the petitioner the salary for the period he was kept out of service on account of punishment, which has been imposed by the disciplinary authority. He further submits that in so far as he has never applied for any leave under the leave rules, the period of absence cannot be treated as extra ordinary leave. 3. According to the counsel for the bank, the first respondent took a very lenient view by converting the punishment of compulsory O.P.NO.25108/01 3 retirement into the penalty of reduction of 5 stages in the time scale of pay. The petitioner's guilt having been confirmed, he is not eligible for salary for the period he was kept out of service on account of the punishment. It is only in order to save the petitioner from break of service that the period of absence from the date of imposition of punishment till the date of reinstatement pursuant to Ext.P2 has been treated as extra ordinary leave. That is a concession extended to the petitioner and petitioner cannot challenge the same on the grounds raised by him. 4. I have considered the rival contentions in detail. Ext.P2 order has been passed by the reviewing authority taking a lenient view in the matter of imposition of penalty by reducing punishment . It is perfectly within the competence of reviewing authority to decide as to how the period of absence during the period from the date of imposition of punishment till the date of reinstatement is to be treated. It is a discretion vested in him. The petitioner does not challenge the finding of guilt now, although, the petitioner would contend that earlier the petitioner filed original petition challenging the guilt also which was withdrawn on the assurance of the bank that his punishment would be reviewed. Whatever that be, the petitioner cannot as of right of claim that the period during which, petitioner was kept out of service O.P.NO.25108/01 4 on account of the punishment should be treated as period spent on duty. It is the discretion of the reviewing authority. The authority has decided that the period should be treated as extra ordinary leave. In any event on reinstatement, especially when the guilt is confirmed, back wages is not automatic. It has to be decided on the basis of the facts and circumstances. Here the competent authority in his discretion decided to treat the period as leave without salary and allowances. I do not find anything wrong in such exercise of discretion. Therefore, the original petition is dismissed. Sd/- (S.SIRI JAGAN, JUDGE) sks/- O.P.NO.25108/01 5 S.SIRI JAGAN, J. OP No.25108 OF 2001 JUDGMENT 1st December, 2008