SCA/8876/1994 1/53 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8876 of 1994 For Approval and Signature: HONOURABLE MR.JUSTICE A.S.DAVE ================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ================================================= MANSUKHLAL K BHALALA Versus BANK OF INDIA & others ================================================= Appearance : Mr. Bipin I. Mehta for the petitioner SCA/8876/1994 2/53 JUDGMENT Mr. Prabhav Mehta for M/s. Nanavati Associates for the respondents ================================================= CORAM : HONOURABLE MR.JUSTICE A.S.DAVE Date : 04/08/2006 ORAL JUDGMENT 1. This petition under Article 226 of the Constitution of India is filed with a prayer to quash and set aside the order dated 21st October 1993 passed by the Disciplinary Authority of the respondent-Bank dismissing the petitioner from service and also to set aside the order of the Appellate Authority dated 26/31.3.1994, by which, the order of the Disciplinary Authority came to be confirmed. 2. At the outset, the question arises that how far an employee can be permitted to exploit his personal difficulties to invoke sympathy of the employer or the Court, even by stretching the principles of natural justice for quashing and setting aside an order passed by the Disciplinary Authority and confirmed by the Appellate Authority in the backdrop of proved misconduct of willful insubordination or disobedience of lawful or reasonable order of employer and unauthorized SCA/8876/1994 3/53 JUDGMENT absentism found in the departmental enquiry; alternatively That, persistent defiance, disobedience and indifferences shown by the delinquent to the instructions and directions time and again issued by the Bank to resume duty and to explain the charges - whether required any intervention by this Court in exercise of power under Article 226 of the Constitution of India by reducing the penalty of dismissal on the ground that the same is disproportionate to the alleged misconduct,which shocks the conscience of the Court by invoking the second part of Wednesbury clause. 3. The facts summarized are as under: The petitioner was appointed as Agricultural Assistant on 18th July 1974. That, he was instructed to go on deputation at Turkha Branch of the respondent-Bank from 1.2.1992 for a period of one month only by the order dated 24th January 1992 when he was working as Agricultural Assistant at Krishnanagar Branch. It is the case of the petitioner that, earlier, the father of the petitioner was seriously ill during the month of September 1991 and he was hospitalized and, thereafter he was operated for surgical jaundice, SCA/8876/1994 4/53 JUDGMENT who, later on, expired on 4th December 1991. Even the mother of the petitioner was also not keeping well and she was hospitalized on 23rd November 1991 when she had undergone an operation. Thereafter, even the petitioner also fell sick and, therefore, he addressed a letter on 30th January 1992 to the Branch Manager of the respondent-Bank requesting extension of sick leave from 1.2.1992 to 15.3.1992. In response thereto, the Bank had communicated to the petitioner that his leave could not be sanctioned since it was not supported by medical certificate and at the time of death of his father and ailment of his mother, the petitioner was sufficiently accommodated by the Bank. The request of the petitioner to extend sick leave and instructions by the Bank to report at Turkha Branch for a short time continued for some time and, ultimately, the respondent-Bank addressed a letter on 7th May 1992 and instructed the petitioner again to report duty at Turkha Branch. Since the petitioner failed to report duty at Turkha Branch for about ten months, a charge sheet dated 13th November 1992 framing two charges was issued by the respondent-Bank to the petitioner on the ground of gross misconduct of defiance and disobedience as per paras 19.5(3) and 19.7(a) of the first bi-partite settlement SCA/8876/1994 5/53 JUDGMENT dated 19th October 1966 for remaining absent without sanctioned or authorised leave. Both the charges read as under: “Charge No.1: You were directed by the Manager, Krishnanagar Branch vide memorandum No. KSN:280 dated 24.1.92 to go and report to work on deputation for a period of one month at our Turkha Branch in exigencies of bank's work and for which you were entitled to travelling expenses and halting allowance, as per the provisions of Bipartite settlements. Accordingly, you were relieved from Krishnanagar Branch on 31-1-1992 with the direction to report to Manager, Turkha Branch on 1.2.92. You did not report at Turkha Branch and this is willful disobedience of lawful and reasonable orders of your superior authority which, if approved, amounts to gross misconduct in terms of para 19.5(e) of Bipartite Settlement, which reads as under:- “(e)Willful insubordination or disobedience of any lawful or reasonable order of the management or of a superior.” Charge No.2: You are remaining unauthorizedly absent from your duties w.e.f 1.2.92 either at Krishnanagar Branch or at Turkha Branch of the Bank where you were to go and work for a temporary period, without any permission from the competent authority. Aforesaid act on your part, if proved, amounts to minor misconduct in terms of para 19.7(a) of the Bipartite Settlement which reads as under: “(a)absence without leave or overstaying sanctioned leave without sufficient grounds.” SCA/8876/1994 6/53 JUDGMENT 3.1 The petitioner vide letter dated 24th November 1992 replied to the said charge sheet and stated that he had filed Regular Civil Suit No.247 of 1992 before the learned Civil Judge (J.D.), Bhavnagar, where he challenged the action of the respondent-Bank for deputing him at Turkha Branch without his consent and also filed another Regular Civil Suit No.294 of 1993 before the same Court challenging initiation of departmental enquiry proceedings. He requested the respondent- Bank not to take any action in view of pendency of the proceedings in the civil court. Thereafter, lastly, even on 18th December 1992, the respondent-Bank again requested the petitioner to resume duties but, under the guise of pendency of the civil proceedings, the petitioner did not resume duty. Thus, in the departmental enquiry, the petitioner had not remained present on the ground that number of documents were not supplied to the petitioner along with charge sheet and, therefore, it was not possible for the petitioner to remain present unless those documents were supplied to the petitioner. At the same time, when those documents were supplied and the petitioner was asked to submit final statement of defence on conclusion of enquiry, he again asked for some documents and, ultimately, the Enquiry Officer SCA/8876/1994 7/53 JUDGMENT supplied the documents on the basis of which the enquiry had proceeded. However, the petitioner submitted his reply on 11th August 1993 which was received by the Enquiry Officer on 16th August 1993. It is the case of the petitioner that, without taking into consideration the written arguments, the show cause notice dated 25th September 1993 was given to the petitioner and thereafter the impugned order of dismissal dated 21st October 1993 came to be passed by the Regional Manager and Disciplinary Authority. 3.2 Thereafter, a writ petition was filed in this Court, which came to be withdrawn with a view to file a departmental appeal and, later on, an appeal was submitted to the Appellate Authority, which came to be dismissed by passing a reasoned order dated 31st March 1994 by the Appellate Authority confirming the order of the Disciplinary Authority, which is, ultimately, challenged by the petitioner in the present proceeding. 4. The respondent-Bank filed detailed affidavit-in-reply and contended that the grounds about death of the father and ailment of the mother and even the petitioner himself are just excuses for the petitioner for not reporting duty SCA/8876/1994 8/53 JUDGMENT at Turkha Branch. In fact, the respondent-Bank had accommodated the petitioner in the month of December 1991 on the ground of death of the father of the petitioner and even the medical certificate of ailment of the petitioner was not supplied and, instead of reporting duty at Turkha Branch, the petitioner indulged into litigation. In spite of number of reminders to resume duty, the petitioner continued to remain absent without sanction of leave and even the application Exh.5 in Regular Civil Suit No.294 of 1993 also came to be rejected by the trial court by an order dated 16th October 1992 and, therefore, there was no stay against the proceedings of departmental enquiry. It is pointed out that the petitioner had withdrawn both Regular Civil Suit Nos. 247 of 1992 and 194 of 1993 on 10th November 1993. In the above backdrop, it is submitted that the petitioner had deliberately chosen not to attend the departmental enquiry and failed to avail of opportunities offered to him and, therefore, there is no violation of principles of natural justice. Even, as per the respondent-Bank, copies of enquiry proceedings and other documentary evidence produced during the enquiry proceedings were already supplied to the petitioner and even the petitioner was given opportunity to submit written submissions. Even a personal hearing was SCA/8876/1994 9/53 JUDGMENT afforded to the petitioner at the end of the show cause notice dated 25th September 1993 and a copy of enquiry report was also given to the petitioner. Therefore, according to the respondent-Bank, there is no violation of any principles of natural justice or fair-play. 4.1 It is contended by the respondent-Bank that, in view of the petitioner being an awarded staff being a workman within the meaning of Industrial Disputes Act, 1947, he can avail alternative remedy and, on that ground also, the present petition deserves to be rejected. It is further contended by the respondent-Bank that the Appellate Authority has considered the grounds raised in the appeal memo and the appeal of the petitioner also came to be dismissed by passing a reasoned order by dealing with all the contentions raised in the appeal and after affording a personal hearing to the petitioner. Therefore also, even penalty of dismissal does not require any alteration or reduction in exercise of power under Article 226 of the Constitution of India. 5. Shri Bipin I. Mehta, learned counsel for the petitioner, has raised various grounds to challenge the impugned orders. One of the main SCA/8876/1994 10/53 JUDGMENT contentions of the learned counsel for the petitioner is that the departmental enquiry conducted against the petitioner is de hors the rules of principles of natural justice and the petitioner was not given relevant documents relied upon by the Enquiry Officer and the enquiry has proceeded ex-parte. According to him, the departmental proceedings ought not to have been proceeded further in view of non-supply of the documents and, at the same time, when the proceedings were pending before the Civil Court (S.D.), Bhavnagar, where the petitioner had challenged the order of deputation passed against him without his consent and also challenged the enquiry proceedings not held against the petitioner in accordance with law. The second contention of the learned counsel for the petitioner is that under no circumstances the petitioner could have been deputed without his consent and, therefore also, non-resuming duties in view of the letters addressed by the petitioner to the respondent-Bank for extension of sick leave could not have been made as the ground for misconduct for proceeding departmentally for passing of the order of dismissal, being one of the major penalties. Along with the above submissions, the learned counsel for the petitioner has submitted that SCA/8876/1994 11/53 JUDGMENT even the Enquiry Officer has failed to consider the written submissions/arguments canvassed by the petitioner, though in the midst of enquiry, some documents were given to the petitioner and, therefore, the findings of the Enquiry Officer are based on non-consideration of written submissions of the petitioner and, to that extent, the report of the Enquiry Officer stands vitiated which is based on non-appreciation of explanation rendered by the petitioner. The learned counsel for the petitioner has also contended that the delinquent had no knowledge about appointment of Enquiry Officer who was not appointed in accordance with law and even the family circumstances of the petitioner and ailments of the members of the family and the petitioner himself were not considered by the Authority and even, finally, the Appellate Authority, while confirming the order of dismissal passed by the Disciplinary Authority, has also not acted in a reasonable manner and the orders passed by the Appellate Authority and the Disciplinary Authority, therefore, are unreasonable, arbitrary and violative of Articles 14 and 16 of the Constitution of India. 6. Shri Bipin I. Mehta, learned counsel for the petitioner, has, alternatively, contended that SCA/8876/1994 12/53 JUDGMENT the penalty imposed against the petitioner is disproportionate to the alleged misconduct of insubordination and, for remaining absent on the ground of sickness, the petitioner could not have been visited with extreme penalty of economic death. He has submitted that even the application of the petitioner for voluntary retirement under the VRS Scheme also came to be rejected during pendency of the petition and considering the length of service of the petitioner of about 18 years, at least, the Appellate Authority ought to have reduced penalty by imposing a lesser penalty other than dismissal from service and could have continued the petitioner in service, making him eligible at least for voluntary retirement in accordance with the VRS Scheme of the respondent- Bank. 7. Shri Bipin I. Mehta, learned counsel for the petitioner, has relied upon the judgment of the Supreme Court in the case of State of M.P. vs. Chintaman, reported in AIR 1961 S.C 1623, and submitted that, in the matter of denial of opportunity to a public servant by not supplying documents to which such employee is entitled, the High Court can exercise power under Article 226 of the Constitution of India for adjudging proprietary and validity of the decision of the SCA/8876/1994 13/53 JUDGMENT Enquiry Officer. He has also relied upon the judgment of the Supreme Court in the case of Union of India v. Giriraj Sharma, reported in AIR 1994 S.C 215, and submitted that, if there is no willful intention to flout the order, harsh and ultimate punishment of dismissal could not have been imposed. He has also relied upon the judgment of the Supreme Court in the case of Kashinath Dikshita v. Union of India, reported in AIR 1986 S.C 2118, and submitted that non-supply of copies of statements of witnesses and copies of documents relied upon by the Disciplinary Authority rendered the order of dismissal violative of Article 311(2) of the Constitution of India. Similar was the case, according to him, in the reported decision of this Court in the case of Sardarsingh Devisingh vs. Dist. Supdt. Of Police, Sabarkantha and others, 1985 GLH 940 where an employee was absent for a number of days together and the Court had found penalty of dismissal very harsh. Therefore, according to Shri Bipin I. Mehta, learned counsel for the petitioner, a case is made out to allow this petition by quashing and setting aside the impugned orders passed by the Disciplinary Authority and the Appellate Authority in exercise of powers under Article 226 of the Constitution of India. SCA/8876/1994 14/53 JUDGMENT 8. Per-contra, Shri Prabhav Mehta, learned counsel for the respondent-Bank, has submitted that, initially, the petitioner was sufficiently accommodated by the respondent-Bank on the sad demise of his father and ailment of his mother. It is, according to him, only when the petitioner was asked to report for duty at Turkha Branch on deputation with effect from 1st February 1992 by the order dated 24th January 1992, to avoid reporting, the petitioner submitted his report for sick leave without any medical certificate as required by bi-partite settlement,which provides that, if an employee, after proceeding on leave, was desirous of an extension thereof on the ground of sickness, such an employee has to produce medical certificate. Therefore, sending of applications and telegrams for extension of leave on the ground of sickness, ipso-facto, does not establish any ground or reason for accepting or sanctioning such application by the concerned authority. In the present case, the petitioner remained unauthorizedly absent from duty till he was removed from service on 21st October 1993. He has, further, submitted that, by asking the petitioner to report at Turkha Branch, the respondent-Bank has acted purely on account of administrative reasons and exigencies of service SCA/8876/1994 15/53 JUDGMENT and such employee of the Bank does get reimbursement including halting allowance and other expenses incurred by such employee while performing duty on deputation. He has relied upon para 5.4.4 of Shastri Award which provides for such provision. He has also submitted that it is the duty of the employee to carry out the order passed by the employer for deputation. 8.1 According to Shri Prabhav Mehta,learned counsel for the respondent-Bank, the attitude and conduct of the petitioner was of unbecoming of a bank employee in as much as he continued to disregard and disobey the request of the Bank to resume duties time and again and initiated litigation against the Bank by filing suits which ultimately came to be withdrawn, where, initially, no stay was granted against initiation of enquiry proceedings in accordance with law by the respondent-Bank. Thus, the petitioner remained absent from duties, without sanction of leave, for a number of days and exhibited gross misconduct by showing disregard to the order passed by the respondent-Bank and, therefore, the charges came to be framed as per the bi-partite settlement in terms of para 19.5(e) and para 19.7(a) pertaining to willful insubordination or disobedience of any lawful or reasonable order of SCA/8876/1994 16/53 JUDGMENT the management or of a superior and absence without leave or over-stay of the sanctioned leave without sufficient ground. Even in the departmental enquiry also, though reminders were given, opportunities were not availed of and, on the contrary, the request was made to postpone the departmental enquiry on the ground of pendency of judicial proceedings in the Civil Court, Bhavnagar, when no stay was granted by the concerned Court. He has also submitted that even the petitioner was given opportunity to represent his case under one pretext or other, he tried to delay the enquiry proceedings, even though, the Enquiry Officer with a view to give final chances, forwarded letter dated 4th August 1993, by which, copies of enquiry proceedings, documentary evidence produced during enquiry proceedings, and even written arguments given by the Presenting Officer have been supplied to the petitioner which was replied to by the petitioner which indicates that the principles of natural justice were followed by the respondent-Bank in the conduct of the departmental enquiry. 8.2 Thus, according to the learned counsel for the respondent-Bank, the charges against the petitioner of subordination and disregard of instructions of the management/superior officers SCA/8876/1994 17/53 JUDGMENT and on remaining absent without sufficient ground unauthorizedly, stood proved beyond any doubt and, therefore, there is no violation of any procedural requirement in the conduct of the departmental enquiry contrary to the principles of natural justice and, as submitted earlier, there is no question of consent of the employee, when he was asked to perform his duty at the nearby Turkha Branch for a period of one month only as required under the bi-partite settlement. Lastly, he has submitted that, when there are concurrent findings and conclusions by the Disciplinary Authority as well as the Appellate Authority by reasoned orders about proved misconduct of the petitioner, extraordinary jurisdiction under Article 226 of the Constitution of India cannot be exercised since penalty imposed is proportionate to the misconduct and proved against the petitioner throughout, upto the Appellate Authority. He has also submitted that personal hearing was given by the Disciplinary Authority and, in the appellate proceeding where also time was sought, again, the date of hearing was changed so as to hear the petitioner. According to Shri Prabhav Mehta, learned counsel for the respondent-Bank, the petitioner has failed to show as to what prejudice has caused to him and, therefore also, SCA/8876/1994 18/53 JUDGMENT interference in the matter of disciplinary action taken by the management in accordance with law is not warranted by this Court in exercise of power under Article 226 of the Constitution of India for reducing and/or modification of penalty imposed by the Disciplinary Authority and confirmed by the Appellate Authority. In support of his arguments, Shri Prabhav Mehta, learned counsel for the respondent-Bank, has relied upon the following decisions; (i) AIR 1962 SC 1344; Major U.R. Bhatt v. Union of India; (ii) (1997) 6 SCC 415; State of T.N. And others vs. M. Natarajan and another; (iii) [1999] 7 SCC 332; Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution vs. Educational Appellate Tribunal and another; (iv)1997 (4) SCC 565; Tara Chand Vyas vs. Chairman & Disciplinary Authority and others; (v) AIR 1996 SC 2359; Additional District Magistrate (City) Agra vs. Prabhakar Chaturvedi and another; and submitted that the enquiry conducted by the respondent-Bank is absolutely in accordance with the provisions of law and when delinquent himself SCA/8876/1994 19/53 JUDGMENT has chosen not to resume duties in spite of repeated reminders sent by the respondent-Bank and unauthorizedly remained absent, since leave was not sanctioned and also avoided proceeding of enquiry under the guise of pendency of civil proceedings before the concerned Civil Court, Bhavnagar, the action taken by the respondent- Bank cannot be said to be unreasonable or arbitrary or in violation of Articles 14 and 16 of the Constitution of India and, therefore, the petition deserves to be rejected. 9. Before adverting to appreciate the rival contentions of the learned counsel appearing for both the parties, it would be appropriate to discuss the judicial precedents on service jurisprudence on the issue of principles of audi- alterem-partem and exercise of powers under Article 226 of the Constitution of India by the Court in a given case to interfere with the matter of disciplinary action where the alleged breach of principle of natural justice is pleaded. The Division Bench of this Court, while deciding Letters Patent Appeal No. 1437 of 1997, by judgment and order dated 24.8.2005, has scanned the scope of interference of the High Court under Article 226 of the Constitution of India in the cases of non-observance of SCA/8876/1994 20/53 JUDGMENT principles of audi-alterm-partem in the matter of disciplinary action by the Departmental Authority. 10. Judicial interdiction in disciplinary matters in early 60's, 70's and 80's on the ground of violation of the rules of natural justice simpliciter has perhaps encouraged white collared employees to indulge in more indiscipline necessitating a re-thinking by the courts. Till one and half decade ago, the courts had insisted on rigorous compliance of the rules of natural justice and the theory of empty/useless formality was largely rejected. However, the judicial precedents of last fifteen years give a clear indication of the shift and now it must be treated as settled law that the court will not invalidate an action taken by the disciplinary authority acting in public domain only on the ground of violation of the rules of natural justice or violation of the procedure laid down by the rules unless it is shown that such violation has prejudiced the defence/cause of the employee. This question was considered in Janki Nath Sarangi Vs. State of Orissa (1969) 3 SCC 392; R.C.Sharma Vs. Union of India (1976) 3 SCC 574; Sunil Kumar Banerjee Vs. State of West Bengal (1980) 3 SCC 304; K.N. Tripathi Vs. State SCA/8876/1994 21/53 JUDGMENT Bank of India (1984) 1 SCC 43; Mumtaz Hussein Ansari Vs. State of U.P. (1984) 3 SCC 295; Kashinath Dikshita Vs. Union of India (1986) 3 SCC 229; Chandrama Tiwari Vs. Union of India (1987) Suppl. SCC 518; Managing Director, ECIL Vs. B. Karunakar (1993) 4 SCC 727; Krishanlal Vs. State of Jammu and Kashmir (1994) 4 SCC