IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.11.2009 CORAM : THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.8896 OF 2000 P.Rajasekaran ... Petitioner vs. 1. Indian Overseas Bank, rep. by the Chairman & Managing Director, Mount Road, Chennai 600 002. 2. The Senior Regional Manager, Disciplinary Authority, Indian Overseas Bank, Regional Office, 40, Eighty Feet Road, Arignar Anna Nagar, Madurai 20. 3. V. Jebasingh ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records pertaining to RO/IR/184/278/98-99 dated 31.03.1999 of the 2nd respondent including the enquiry report of the 3rd and 4th respondents dated 02.03.1999 and quash the same and consequently direct the 2nd respondent to reinstate the petitioner into service with all back benefits, promotions, etc. For Petitioner : Mr.P.Narayanamoorthy For Respondents : Mr.C.Ravichandran O R D E R This writ petition is filed challenging the order of the 2nd respondent dated 31.03.1999 including the enquiry report of the 3rd and 4th respondents dated 02.03.1999 and for a consequential direction to the 2nd respondent to reinstate the petitioner into service with all back benefits, promotions, etc. 2. Brief facts leading to the filing of this case are, as under : (a) The petitioner joined the services of the Indian Overseas Bank in June 1991 as Daftry/Messenger and worked in Appanthirupathy Branch; his service was confirmed in December 1991. In the deposit https://hcservices.ecourts.gov.in/hcservices/ mobilisation, he canvassed Rs.40,000/- and Rs.2 lakhs and he was appreciated by the Bank for the same. (b) According to the petitioner, his aged mother is suffering from a disease which needed operation in her head and she is unable to do anything independently and requires the help of a person and he had to assist her in her daily routine; moreover, he had to look after his nephew aged 12 years, as his brother an Indian Bank employee expired two years ago. That apart, the petitioner himself was suffering from Jaundice during December 1998. In such circumstances, the petitioner had to take leave on 19.12.1996, 03.05.1997, 23.10.1997 and on 30.12.1997, for which he was awarded a punishment of "stoppage of one increment without cumulative effect on 20.05.1998". (c) The petitioner would further state that he was again charge sheeted; improper enquiry was conducted and a major punishment of dismissal was awarded for availing leave. According to the petitioner, he applied for leave and for extension of leave and also sent letters to the Bank. But, the Bank has treated his leave as leave on loss of pay, conducted improper enquiry and finally, dismissed him from service. He would also state that the 1st respondent refused to receive his appeal and hence, he did not prefer any appeal. Aggrieved by the order passed by the 2nd respondent, the petitioner is before this court. 3. In the counter affidavit filed on behalf of the respondents, it is stated thus : (a) The petitioner joined the services of the Bank as a messenger on 27.06.1991 and was working at Appanthiruppathy Branch. The petitioner was on leave/unauthorised absence from April 1996 to February 1998 for 373 days. His absence was at regular intervals but not exceeding 90 days every time. For the said misconduct, the petitioner was charge sheeted and awarded with a punishment of "stoppage of one increment without cumulative effect", since he assured in writing that he would be punctual in future. The petitioner's leave record did not improve and he started absenting himself again from 06.10.1998 by submitting a leave letter for 15 days. Thereafter, he was extending his leave by submitting leave letter one after another. The petitioner was advised by the Regional Office, Madurai that his leave was declined and he had to report for duty immediately. But, the petitioner did not respond to the same. Hence, a charge sheet dated 21.11.1998 was issued. (b) On 14.01.1999, the petitioner came to the Branch all of a sudden and signed the attendance register without submitting leave letter and medical certificates. Thereafter, the petitioner remained absent without any information to the Branch. Therefore, the petitioner was issued with an additional charge sheet dated 23.01.1999 for failing to report for duty in response to Regional https://hcservices.ecourts.gov.in/hcservices/ Office letter dated 17.11.1998 and for failing to reply to the charge sheet under clause 17.7 (b) (c) (minor misconduct) and 17.5 (d), (e), (f) (Gross misconduct). An enquiry was conducted on 02.03.1999, wherein the petitioner admitted the charges unconditionally and the findings were submitted on 08.03.1999. In view of the findings, a show cause notice dated 15.03.1999 was issued to the petitioner as to why the punishment of 'dismissal without notice' should not be imposed on him, and finally an order dated 31.03.1999 was passed awarding the punishment of 'dismissal without notice'. (c) According to the respondents, without exhausting the alternate remedy of filing an appeal as contemplated under the Bank's Regulation, the petitioner has filed the writ petition aggrieved by the order of dismissal dated 31.03.2009 passed by the 2nd respondent. (d) With regard to the allegation that the 1st respondent refused to receive the appeal of the petitioner and hence no appeal was preferred, the respondents would state that the petitioner never filed any appeal against the order of dismissal dated 31.03.1999 and even in the typed set filed in support of the writ petition, the petitioner has not enclosed the copy of the alleged appeal said to have been filed before the 1st respondent. (e) The respondents would also state that the petitioner received a copy of the enquiry proceedings on 02.03.1999 itself and the copy of the enquiry report was also sent. Thereafter, show cause notice dated 23.03.1999 was issued to him and in that show cause notice, it was specifically mentioned that personal hearing will be given on 26.03.1999 at 11.00 am. Before the enquiry office, the petitioner correctly admitted the charges wholly and unconditionally. In fact, after receipt of the show cause notice dated 15.03.1999, the petitioner submitted his notice of resignation from the Bank's service on 23.03.1999, wherein he had admitted that he was unable to continue in the present job due to lot of family problem which has caused irregularity in his attendance to the office and therefore he intended to resign from his job inevitably. Before the petitioner's notice of resignation could be considered by the competent authority, the 2nd respondent issued the order of dismissal without notice. Therefore, the competent authority declined the petitioner's resignation in view of the order of dismissal without notice dated 31.03.1999 passed by the Disciplinary Authority. 4. Heard Mr.P.Narayanamoorthy, learned counsel for the petitioner and Mr.C.Ravichandran, learned counsel appearing for the respondents. 5. Learned counsel for the petitioner would submit that in the show cause notice dated 23.03.1999 of the 2nd respondent, show cause notice dated 15.03.1999 is referred; only on 23.03.1999, the Enquiry Officer's Report was sent to the charge sheeted employee for his https://hcservices.ecourts.gov.in/hcservices/ submission before the personal hearing dated 26.03.1999; the show cause notice dated 23.03.1999 was served on the petitioner only one day previous to the personal hearing; hence, the petitioner was not given the real and proper opportunity by the Disciplinary authority. He would contend that the impugned order is passed with a malafide intention. 5a. Learned counsel for the petitioner, in support of his contentions has relied on the following decisions of the Supreme Court: (i) (1985) 2 SCC 358 (Shankar Dass vs. Union of India and another) "6. ... Misfortune dogged the accused for about a year ... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958. 7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311 (2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical." (ii) AIR 1994 SC 1074 (Managing Director, ECIL, Hyderabad vs. B.Karunakar) https://hcservices.ecourts.gov.in/hcservices/ "21. The contention, therefore, of Sri Salve that supply of the enquiry report was a part of the later clause of Art. 311(2) i.e. to impose penalty which requirement was dispensed with by the Constitution Forty Second Amendment Act, S.44 thereof, deleting the necessity of issuance of second show cause notice on the proposed punishment to the delinquent does not merit consideration. The reasons are self evident. 26. ... Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. ..." (iii) (2007) 10 SCC 88 (M.P. State Agro Industries Development Corporation Ltd. and another vs. Jahan Khan) "12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. ..." https://hcservices.ecourts.gov.in/hcservices/ (iv) (2008) 3 SCC 273 (State of Madhya Pradesh and others vs. Hazarilal) "8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence." (v) 2008 (3) SCC 484 (Moni Shankar vs. Union of India and another) "17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality." 5b. Learned counsel has also relied on a decision of the Andhra Pradesh High Court reported in 2009 (4) SLR 11 in the case of J.Srinivasa Rao vs. UCO Bank "23. It has already been pointed out that though 1st charge was that the petitioner is guilty of fabricating the documents, the Enquiry Officer held the same as proved, without even mentioning any ingredients of fabrication, on the part of the petitioner. The Disciplinary Authority on his part, blindly followed the said finding, which, in turn, violative of the mandatory provisions of law. This is only illustrative. The disciplinary and Appellate Authorities have committed irregularities, at their respective levels. " https://hcservices.ecourts.gov.in/hcservices/ 6. On the other hand, learned counsel for the respondents would submit that the writ petition is liable to be dismissed on the grounds of non-filing of appeal against the order of dismissal passed by the disciplinary authority and the petitioner, being an Award staff, ought to have approached the Central Government Industrial Tribunal, Chennai for redressal of his grievance, viz. order of dismissal. 6a. To substantiate his stand, learned counsel for the respondents has relied on the following: (i) a decision of the Karnataka High Court reported in 1983 (II) LLJ 76 (Hariba vs. K.S.R.T.C.) "16. The result of the discussion may be summed up as follows : whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under S.10 of the Industrial Disputes Act and a petition under Article 266 should not be entertained, notwithstanding the fact that the industry is under the management of a statutory Corporation or body, which is an 'authority' falling within the definition of the word 'state' as defined in Art. 12 and amenable to the writ jurisdiction of this Court under Art. 226 of the Constitution." (ii) a decision of the Patna High Court reported in 1985 (I) LLJ 343 (Dinesh Prasad and others vs. State of Bihar and others) "15. We do not find much force in either of the contentions. It is no doubt true that the remedy provided under the Act under S.33-C, on the facts and in the circumstances of this case involving disputes in relation to the two settlements arrived at between the management and the workmen, was not the appropriate remedy. It is also true that it was not open to the workmen concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this court that the Government under certain circumstances even on the ground of expediency (vide State of Bombay vs. K.P.Krishnan. [1960-II LLJ 592] and Bombay Union of Journalists vs. State of Bombay [1964-I LLJ 351]) can refuse to make a reference. If the refusal is not sustainable in law appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the https://hcservices.ecourts.gov.in/hcservices/ power of the Government under S.10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the At. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest contet to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under S.10 on the ground of expediency is not a relevant consideration in this regard. 22. ... the salutary rule is that the writ court would entertain the matter only if the adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself and ultimately rendering it inefficacious because it is, and was never intended, to replace or substitute the ordinary legal remedies expressly provided by the Legislature. Therefore, on principle itself resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available." (iii) (1998) 6 SCC 549 (Scooters Indian and others vs. Vijai E.Eldred) "2. The above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial laws was available to the workman. ... It is also extraordinary for the High court to have held clause 9.3.12 of the standing orders as invalid. Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order. In view https://hcservices.ecourts.gov.in/hcservices/ of the fact that we are setting aside the High Court's judgment, we need not deal with this aspect in detail." (iv) (2001) 1 SCC 214 (Punjab & Sind Bank and others vs. Sakattar Singh) "5. ... We do not also find any material on record to show that he had reported for duty within the period indicated in the notice issued in terms of clause 16 of IV bipartite settlement. In the circumstances, we find the High Court had proceeded on an erroneous basis of non-compliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequence that would ensue thereof." (v) (2004) 6 SCC 325 (Vice Chairman, Kendriya Vidyalaya Sangathan and another vs. Giridharilal Yadav) "11. ... In terms of Section 58 of the Evidence Act, 1872, facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. ..." (vi) (2006) 2 SCC 269 (L.K.Verma vs. HMT Ltd. and another) "20. ... Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar (See Whirlpool Corpn. vs. Registrar of Trade Marks, Sanjana M.Wig vs. Hindustan Petroleum Corpn. Ltd. and State of H.P. vs. Gujarat Ambuja Cement Ltd.) (vii) (2008) 5 SCC 569 (Chairman & Managing Director, V.S.P. and others vs. Goparaju Sri Prabhakara Hari Babu) "16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite the https://hcservices.ecourts.gov.in/hcservices/ opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct. 19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself be a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings. 21. Once it was found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. " (viii) (2008) 3 SCC 446 (New India Assurance Co. Ltd. vs. Vipin Behari Lal Srivastava) "9. A bare look at it shows that there was no condonation of the absence without leave as held by the High Court. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn as noted above. 12. As noted above, sick leave can be granted only on the production of a medical certificate from a registered medical practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 03.08.1994. The charges against the respondent, inter alia, were as follows : "(i) wilful insubordination and disobedience of lawful and reasonable orders of his superiors, (ii) absence without leave, without sufficient grounds or proper or satisfactory explanation, (iii) absence from his appointed place of work without permission or sufficient cause." 18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying https://hcservices.ecourts.gov.in/hcservices/ on some business elsewhere. 20. ... A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period