IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 16.06.2010 CORAM THE HONOURABLE MR. JUSTICE S.NAGAMUTHU W.P.No.2113 of 2001 Mrs.Pramila David .... Petitioner Vs. 1.The General Manager, (Appellate Authority) Syndicate Bank, H.O. Manipal, P.B.No.1, Manipal – 576 119, Karnataka State. 2.The Deputy General Manager, (Disciplinary Authority), Zonal Office, Syndicate Bank, No.27/28, Woods Road, B.R.Complex, II & III Floor, P.B.No.5227, Mount Road, Chennai 600 002. 3.The Chairman, Syndicate Bank, H.O. Manipal, P.B.No.1, Manipal – 576 119, Karnataka State. ... Respondents Petition filed under Article 226 of the Constitution of India, for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to order Ref. 20/CZO/DA-6/99, dated 24.11.1999 passed by the 2nd respondent as confirmed by the 1st respondent by order Ref.No.28/PD:IRD:DA:7, dated 12.02.2000 and quash the same and consequently direct the respondents to reinstate the petitioner as Manager with continuity of service, back wages and all other consequential benefits. For petitioner : Mr.A.Sivaji For respondent (s) : Mr.S.Ravichandran for M/s.T.S.Gopalan & Co https://hcservices.ecourts.gov.in/hcservices/ ORDER The petitioner was an employee of Syndicate Bank. Between 23.05.1994 and 30.06.1998 she was working as Assistant Manager at Vellore Branch. According to her, on several occasions during the said period, she had severe set back in her health. Apart from that her brother met with an accident and he was paralysed and so she had to take care of her brother. In those circumstances, the petitioner claims that she availed leave on medical grounds. She would more specifically state that she submitted leave applications on 19.03.1996, 08.07.1996, 04.10.1996, 26.10.1996, 23.11.1996, 23.12.1996, 15.01.1997, 17.04.1997, 20.07.1997 and 05.08.1997 along with medical certificates for the period between 08.12.1997 to 30.12.1997; 23.03.1998 to 30.03.1998 and 11.05.1998 to 30.06.1998. She further claims that all her leave applications were duly recommended by the Branch Manager and forwarded to the competent authority. But, according to her, no order was passed by the competent authority on the said leave applications. While so, a charge memorandum dated 22.12.1998 was issued alleging that she was unauthorisedly absent for a total number of 536 days during the following periods:- Period of Absence No. of days 26.02.1996 - 16.03.1996 20 25.03.1996 - 27.04.1996 34 25.05.1996 - 06.07.1996 43 25.07.1996 - 27.07.1996 3 01.08.1996 – 02.08.1996 2 12.08.1996 – 28.09.1996 48 17.10.1996 – 18.10.1996 2 30.10.1996 – 15.02.1997 109 16.02.1997 – 10.08.1997 176 11.08.1997 – 12.09.1997 33 13.09.1997 – 17.10.1997 35 08.12.1997 – 30.12.1997 23 23.03.1998 – 30.03.1998 8 Total --------------- 536 --------------- The petitioner , thereafter, submitted a detailed explanation denying the above allegations. However, an enquiry was ordered into the said charges. The enquiry officer held that the petitioner was unauthorisedly absent and the charges were proved. Accepting the https://hcservices.ecourts.gov.in/hcservices/ enquiry officer's report dated 25.10.1999, the disciplinary authority by his order dated 24.11.1999 imposed a major punishment of compulsory retirement with immediate effect. Against the said order, she preferred an appeal on 10.01.2000 to the General Manager (P) who is the appellate authority under Regulation 17 of the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976. The appellate authority dismissed the said appeal by order dated 12.02.2000. It is the said punishment which is under challenge in this writ petition. 2. It is submitted by the writ petitioner that the Zonal Officer, Chennai by order dated 07.10.1997 has treated the period of absence between 30.10.1996 and 12.09.1997 (473 days) as unauthorised. Similarly, by order dated 03.03.1998 yet another period of absence between 08.12.1997 and 30.12.1997 (23 days) was also treated as unauthorised. By order dated 03.04.1998 the period of absence between 23.03.1998 to 30.03.1998 (7 days) was treated as unauthorised. Finally, by order dated 31.07.1998, the period of absence between 11.05.1998 and 30.06.1998 (51 days) was treated as unauthorised. By the proceedings of the Regional Officer dated 08.09.1998, it was informed to the petitioner that the total period of absence of 536 days was treated as unauthorised. While treating the absence period as unauthorised, the petitioner was informed as follows:- "You are further advised to note the following: (a) Your absence as above is treated as unauthorised with consequent cut in salary and other allowances and also treated as no in service with consequential postponement of annual increment / stagnation increment dates. (b) The period is not counted as service for terminal benefits /pension. (c) This is without prejudice to the right of the Bank to initiate disciplinary action as deemed fit." 3. Based on the above, it is now submitted that cut in the salary and other allowances for the absence period treating the said period as non service period, postponement of annual increment / stagnation in increment, non counting of the said period as service period for terminal benefits / pension would all amount to punishment. Thus, according to the petitioner, she had already been imposed with appropriate punishment for misconduct of absence from duty. While so, according to the petitioner, for the very same misconduct, issuance of fresh charge memorandum and imposition of punishment for the same would amount to double jeopardy. It is mainly on this ground the learned counsel appearing for the petitioner would advance his argument. https://hcservices.ecourts.gov.in/hcservices/ 4. Per contra, the learned counsel appearing for the respondent would submit that the above punishment namely, cut in salary and allowances, postponement of annual increment, non counting of the period of absence with service period and non counting of the said period for terminal benefits are all in accordance with the Leave Rules of the Bank and they would not amount to punishment in accordance with the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 and so, the punishment imposed in the impugned proceedings by way of punishment would not amount to double jeopardy. 5. I have carefully gone through the Leave Rules of the Bak as well as the Syndicate Bank Officer Employees (Discipline and Appeal) Regulations, 1976. There is no controversy in this case that the petitioner did not attend duty for a total period of 536 days, for which, charge was issued to her on 22.12.1998. It is the contention of the petitioner that she was unable to attend duty during the said period due to bad health and also due to other reasons. Though it is contended so, sufficient materials to establish the said facts were not placed before the enquiry officer. Apart from that even according to her, leave applications were given long after the leave taken by her on several occasions. But, it is denied by the Bank. From the rival contentions and from the materials placed before this Court, it could be seen that the leave applications for medical leave were not submitted by the petitioner in time and she was absent. Therefore, the findings of the enquiry officer that the petitioner was absent and, therefore, she is guilty under the charge cannot be in any manner assailed. Even before this Court, the learned counsel appearing for the petitioner is not able to make out any case so as to assail the findings of the enquiry officer as well as the punishment imposed by the disciplinary authority which was later on confirmed by the appellate authority. 6. What all that the learned counsel appearing for the petitioner would contend is that for the very same alleged misconduct, punishments were earlier imposed by orders dated 07.10.1997, 03.03.1998, 03.04.1998, 31.07.1998 and 08.11.1998 and, therefore, the punishment of compulsory retirement which is impugned in this writ petition is double jeopardy. But, in my considered opinion, it is not so and my reasons are as follows. 7. As pointed out by the learned counsel for the respondent, so far as the leave of the officers and employees' of the bank is governed by leave rules. Rule 2.7 deals with Extra- ordinary Leave on loss of Pay and allowances. Rule 2.7.4. and 2.7.5. read as follows:- "2.7.4. EOL on LOP may be availed in combination with or in continuation with other kinds of leave except CL. The annual increment date gets postponed for the period of EOL on LOP availed unless such postponement is condoned by the Competent Authority. However, if the https://hcservices.ecourts.gov.in/hcservices/ Competent authority is satisfied that the leave was taken on account of illness or for any other cause beyond officers' control, he may direct that the period of EOL on LOP may count for increments. It must be noted that the "Competent Authority" for sanction/release condoning of the postponement of increments is the Head of the Zone (and not the Leave Sanctioning Authority). However, absence on LOP beyond the permissible limits will not count as service under any circumstances even if the Bank waives disciplinary action for such absence." "2.7.5. While sanctioning EOL on LOP, the Leave Sanctioning authority has to necessarily inform the officer concerned that his annual increment date stands postponed proportionately. Copies of the letter should be marked to the concerned Zonal Office and to HO:PD:PAS to effect necessary changes. If the Officer represents to condone the postponement of the annual increment date, the representation should be forwarded to the DGM of the Zone where the IF of the officer is being serviced, as the DGM of the Zone is the Competent Authority to waive postponement of the annual increment date." 8. A perusal of the above two sub rules would make one to understand without any doubt that postponement of increment on account of the leave is incidental and consequential to the leave. It will not amount to punishment. 9. Similarly, in respect of counting of the period of absence for the purpose of pension, the Syndicate Bank (Employees' ) Pension Regulations, 1995 provides for qualifying service. Clause 17 of the said Regulations states as follows:- "17. Counting of periods spent on leave:- All leave during service in the Bank for which leave salary is payable shall count as qualifying service: Provided that extraordinary leave on loss of pay shall not count as qualifying service except when the sanctioning authority has directed that such leave not exceeding twelve months during the entire service, may count as service for all purposes including pension." 10. From the above, it is clear that the period of absence which was treated as unauthorised leave period shall not be counted for the purpose of pension while calculating the qualifying service. Therefore, this also cannot be treated as punishment. https://hcservices.ecourts.gov.in/hcservices/ 11. Now, coming to the Syndicate Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, Clause 4 of the Regulations deals with the penalties which may be imposed on an officer/employee for the acts of misconduct, etc. It provides both for minor and major penalties. Withholding of increment of pay without cumulative effect is a minor penalty and compulsory retirement is a major penalty. According to the said Regulations, after following the procedure contained therein, such as , framing of charges, holding an enquiry, etc., appropriate punishment of compulsory retirement can be imposed by the disciplinary authority. In the case on hand , such penalty has been imposed by the disciplinary authority by following the said established procedure. Though withholding of the increment is one of the penalties as stated in the said Regulations , in the case on hand, withholding of the increment effected against the petitioner is not on the ground of any proved charge, but it was on account of the unauthorised leave which she had taken. Therefore, the incidental effects on the petitioner's case (i.e.,) withholding of increment and non counting of the said period of leave for the purpose of pension cannot be termed as penalties in terms of the Regulations and, therefore, the contention of the petitioner that the imposition of punishment of compulsory retirement on her amounts to double jeopardy cannot be countenanced at all at any stretch of imagination. Therefore, the said contention of the petitioner is liable to be rejected. 12. The learned counsel for the petitioner made a strenuous attempt, at last, to say that the quantum of punishment imposed on the petitioner is disproportionate to the gravity of the misconduct said to have been committed by her and, therefore, the same should appropriately be modified or the matter may be remitted back to the disciplinary authority for imposing appropriate quantum of punishment. In this regard, the learned counsel would rely on a judgement in Madhya Pradesh State Cooperative Dairy Federation Limited v. Rajnesh Kumar Jamindar and others, (2009) 15 SCC 221 wherein the Hon'ble Supreme Court in para 48 has culled out the settled proposition of law indicating the circumstances under which compulsory retirement in public interest can be resorted which is as follows: "48. It is also a well-settled principle of law that an authority discharging a public function must act fairly. It, for the aforementioned purpose, cannot take into consideration an irrelevant or extraneous matter which is not germane for the purpose for which the power is sought to be exercised. The Scrutiny Committee as also the Review Committee was required to pose unto themselves a correct question of law so as to enable them to find out a correct answer. It was, therefore, imperative that the criteria laid down in the circulars issued by the State of Madhya Pradesh should have been scrupulously followed. The Federation, https://hcservices.ecourts.gov.in/hcservices/ therefore, in our opinion, having regard to the fact that there was no material to show that the respondents - employees had become dead wood, inefficient or corrupt, must be held to have abused its power." 13. Relying on the above, the learned counsel would submit that the punishment of compulsory retirement could be resorted to only if it is the opinion of the Bank that the employee has become dead wood, inefficient or corrupt, but not otherwise. He would, therefore, submit that in the instant case, when the absence from service was for good reasons, the punishment of compulsory retirement ought not to have been imposed on the petitioner. In my considered opinion, the principles stated in Madhya Pradesh State Co-operative Dairy Federation's case cited supra, wherein the number of previous judgements have been referred to, have no application to the facts of the present case at all. That judgement was with reference to Madhya Pradesh State Co-operative Dairy Federation Limited Employees Recruitment, Classification and Conditions of Service Regulations, 1985 wherein Clause 13 of the said Regulations provides for imposition of compulsory retirement on an employee on completion of 20 years of the service in the interest of the Federation after giving three months notice. That was not by way of punishment as per service regulations. The said compulsory retirement was on the ground of inefficiency or on the ground that the officer has become dead wood or corrupt , etc. That compulsory retirement was not out of any disciplinary proceedings initiated and by way of penalty. That was the reason why the Hon'ble Supreme Court in the aforesaid judgement held that the such compulsory retirement does not carry any stigma as it is not a punishment. When a person is sent out of service on compulsory retirement not by way of punishment but for other reasons as stated above as enumerated in Service Regulations, as held by the Hon'ble Supreme Court, it could be resorted to rarely for very strong reasons as indicated above. Here, in the instant case, compulsory retirement has not been imposed only in the interest of the Bank otherwise than by way of punishment. As a matter of fact, there is no provision in the Regulations to compulsorily retire a person otherwise than by way of punishment. Therefore, the principles stated in the said judgement have got no application to the facts of the present case at all. 14. The learned counsel appearing for the respondent would rely on a judgement in Life Insurance Corporation of India v. R.Dhandapani , 2006 (1) LLJ 329 wherein the Hon'ble Supreme Court in para 9 has held as follows:- "9. In recent times, there is an increasing evidence of this, perhaps well-meant but wholly unsustainable, tendency towards a denudation of the legitimacy of judicial reasoning and process. The reliefs granted by the Courts must be seen to be logical and tenable within the framework of the law and should not incur and https://hcservices.ecourts.gov.in/hcservices/ justify the criticism that the jurisdiction of the Courts tends to degenerate into misplaced sympathy, generosity and private benevolence. It is essential to maintain the integrity of legal reasoning and the legitimacy of the conclusions. They must emanate logically from the legal findings and the judicial results must be seen to be principled and supportable on those findings. Expansive judicial mood of mistaken and misplaced compassion at the expense of the legitimacy of the process will eventually lead to mutually irreconcilable situations and denude the judicial process of its dignity, authority, predictability and respectability. [See: Kerala Solvent Extractions Ltd. v. A. Unnikrishnan and Anr. [1994 (II) LLJ-888(SC)]." 15. Relying on the above, the learned counsel for the respondent would submit that in the case on hand, since the petitioner had wilfully absented for such a long number of days though she was in a very responsible post namely, Assistant Manager in the Bank and since she did not turn up for duty despite several warnings issued, she is not entitled for any leniency in the matter of punishment. I am in full argument with the said argument of the learned counsel for the respondent. The absence for few days or few months may be lightly viewed . But , frequent absence from duty by a responsible officer in a banking service for 546 days on various spell cannot be lightly viewed. It is not as though the petitioner was not warned by the bank. Despite several warnings issued by the , the petitioner wilfully absented from duty. Apart from that the contention of the respondent bank in the counter that the petitioner absented from duty wilfully because she was transferred out of Chennai also needs to be considered. Thus, in my considered opinion, the quantum of punishment also cannot be in any manner considered to be disproportionate to the gravity of charges. It is settled law that unless the punishment is shockingly disproportionate – not merely disproportionate – it is not permissible for the writ court to have a judicial review of the quantum of punishment so as to minimise the same. Applying the said principles of law to the facts of the present, I am of the view that the punishment imposed on the petitioner does not require any interference at the hands of this court. Thus, I do not find any merit in the writ petition and the same fails. In the result, the writ petition is dismissed. No cost. Sd/ Asst.Registrar /true copy/ Sub Asst.Registrar kmk https://hcservices.ecourts.gov.in/hcservices/ To 1.The General Manager, (Appellate Authority) Syndicate Bank, H.O. Manipal, P.B.No.1, Manipal – 576 119, Karnataka State. 2.The Deputy General Manager, (Disciplinary Authority), Zonal Office, Syndicate Bank, No.27/28, Woods Road, B.R.Complex, II & III Floor, Mount Road, Chennai 600 002. 3.The Chairman, Syndicate Bank, H.O. Manipal, P.B.No.1, Manipal – 576 119, Karnataka State. 1 cc To Mr.A.Shivaji, Advocate, SR.43453 1 cc To Mr.T.S.Gopalan & Co., Advocate, SR.43325 W.P.No.2113 of 2001 mg(co) pmk.30.6.2010. https://hcservices.ecourts.gov.in/hcservices/