P.Rajasekaran v. Indian Overseas Bank

mobilisation, he canvassed Rs.40,000/- and Rs.2 lakhs and he wasappreciated by the Bank for the same. (b)According to the petitioner, his aged mother is sufferingfrom a disease which needed operation in her head and she is unableto do anything independently and requires the help of a person and hehad to assist her in her daily routine; moreover, he had to lookafter his nephew aged 12 years, as his brother an Indian Bankemployee expired two years ago. That apart, the petitioner himselfwas suffering from Jaundice during December 1998. In suchcircumstances, 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 apunishment of "stoppage of one increment without cumulative effect on20.05.1998". (c)The petitioner would further state that he was again chargesheeted; improper enquiry was conducted and a major punishment ofdismissal was awarded for availing leave. According to thepetitioner, he applied for leave and for extension of leave and alsosent letters to the Bank. But, the Bank has treated his leave asleave on loss of pay, conducted improper enquiry and finally,dismissed him from service. He would also state that the 1strespondent refused to receive his appeal and hence, he did not preferany appeal. Aggrieved by the order passed by the 2nd respondent, thepetitioner is before this court.3.In the counter affidavit filed on behalf of therespondents, it is stated thus :(a)The petitioner joined the services of the Bank as amessenger on 27.06.1991 and was working at Appanthiruppathy Branch.The petitioner was on leave/unauthorised absence from April 1996 toFebruary 1998 for 373 days. His absence was at regular intervals butnot exceeding 90 days every time. For the said misconduct, thepetitioner was charge sheeted and awarded with a punishment of"stoppage of one increment without cumulative effect", since heassured in writing that he would be punctual in future. Thepetitioner's leave record did not improve and he started absentinghimself again from 06.10.1998 by submitting a leave letter for 15days. Thereafter, he was extending his leave by submitting leaveletter one after another. The petitioner was advised by the RegionalOffice, Madurai that his leave was declined and he had to report forduty 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 asudden and signed the attendance register without submitting leaveletter and medical certificates. Thereafter, the petitioner remainedabsent without any information to the Branch. Therefore, thepetitioner was issued with an additional charge sheet dated23.01.1999 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 chargesheet 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 thefindings were submitted on 08.03.1999. In view of the findings, ashow cause notice dated 15.03.1999 was issued to the petitioner as towhy the punishment of 'dismissal without notice' should not beimposed on him, and finally an order dated 31.03.1999 was passedawarding the punishment of 'dismissal without notice'. (c)According to the respondents, without exhausting thealternate remedy of filing an appeal as contemplated under the Bank'sRegulation, the petitioner has filed the writ petition aggrieved bythe order of dismissal dated 31.03.2009 passed by the 2nd respondent.(d)With regard to the allegation that the 1st respondentrefused to receive the appeal of the petitioner and hence no appealwas preferred, the respondents would state that the petitioner neverfiled any appeal against the order of dismissal dated 31.03.1999 andeven in the typed set filed in support of the writ petition, thepetitioner has not enclosed the copy of the alleged appeal said tohave been filed before the 1st respondent. (e)The respondents would also state that the petitionerreceived a copy of the enquiry proceedings on 02.03.1999 itself andthe copy of the enquiry report was also sent. Thereafter, show causenotice dated 23.03.1999 was issued to him and in that show causenotice, it was specifically mentioned that personal hearing will begiven on 26.03.1999 at 11.00 am. Before the enquiry office, thepetitioner correctly admitted the charges wholly and unconditionally.In fact, after receipt of the show cause notice dated 15.03.1999, thepetitioner submitted his notice of resignation from the Bank'sservice on 23.03.1999, wherein he had admitted that he was unable tocontinue in the present job due to lot of family problem which hascaused irregularity in his attendance to the office and therefore heintended to resign from his job inevitably. Before the petitioner'snotice 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'sresignation in view of the order of dismissal without notice dated31.03.1999 passed by the Disciplinary Authority. 4.Heard Mr.P.Narayanamoorthy, learned counsel for thepetitioner and Mr.C.Ravichandran, learned counsel appearing for therespondents. 5.Learned counsel for the petitioner would submit that in theshow cause notice dated 23.03.1999 of the 2nd respondent, show causenotice dated 15.03.1999 is referred; only on 23.03.1999, the EnquiryOfficer'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 showcause notice dated 23.03.1999 was served on the petitioner only oneday previous to the personal hearing; hence, the petitioner was notgiven the real and proper opportunity by the Disciplinary authority.He would contend that the impugned order is passed with a malafideintention.5a.Learned counsel for the petitioner, in support of hiscontentions has relied on the following decisions of the SupremeCourt:(i)(1985) 2 SCC 358 (Shankar Dass vs. Union of India andanother)"6.... Misfortune dogged the accused for about ayear ... and it seems that it was under the force ofadverse circumstances that he held back the money inquestion. Shankar Dass is a middle-aged man and it isobvious that it was under compelling circumstances that hecould not deposit the money in question in time. He is nota previous convict. Having regard to the circumstances ofthe case, I am of the opinion that he should be dealt withunder the Probation of Offenders Act, 1958. 7.It is to be lamented that despite theseobservations of the learned Magistrate, the Governmentchose to dismiss the appellant in a huff, without applyingits mind to the penalty which could appropriately beimposed upon him insofar as his service career wasconcerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the powerto dismiss a person from service "on the ground of conductwhich has led to his conviction on a criminal charge".But, that power, like every other power has to be exercisedfairly, justly and reasonably. Surely, the Constitutiondoes not contemplate that a Government servant who isconvicted for parking his scooter in a no-parking areashould be dismissed from service. He may, perhaps, not beentitled to be heard on the question of penalty sinceclause (a) of the second proviso to Article 311(2) makesthe provisions of that article inapplicable when a penaltyis to be imposed on a Government servant on the ground ofconduct which has led to his conviction on a criminalcharge. But the right to impose a penalty carries with itthe duty to act justly. Considering the facts of thiscase, there can be no two opinions that the penalty ofdismissal from service imposed upon the appellant iswhimsical."(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 thatsupply of the enquiry report was a part of the laterclause of Art. 311(2) i.e. to impose penalty whichrequirement was dispensed with by the ConstitutionForty Second Amendment Act, S.44 thereof, deleting thenecessity of issuance of second show cause notice onthe proposed punishment to the delinquent does notmerit consideration. The reasons are self evident.26.... Therefore, a duty and responsibility hasbeen cast on the disciplinary authority to weigh thepros and cons, consider the case and imposeappropriate punishment. In a given case if thepenalty was proved to be disproportionate or there isno case even to find the charges proved or the chargesare based on no evidence, that would be for thecourt/the tribunal to consider on merits, not as courtof appeal, but within its parameters of supervisoryjurisdiction and to give appropriate relief. But thiswould not be a ground to extend hearing at the stageof consideration by the disciplinary authority eitheron proof of the charge or on imposition of thepenalty. ..."(iii)(2007) 10 SCC 88 (M.P. State Agro IndustriesDevelopment Corporation Ltd. and another vs. Jahan Khan)"12.Before parting with the case, we may also dealwith the submission of learned counsel for theappellants that a remedy by way of an appeal beingavailable to the respondent, the High Court ought not tohave entertained his petition filed under Articles226/227 of the Constitution. There is no gainsayingthat in a given case, the High Court may not entertain awrit petition under Article 226 of the Constitution onthe ground of availability of an alternative remedy, butthe said rule cannot be said to be of universalapplication. The rule of exclusion of writ jurisdictiondue to availability of an alternative remedy is a ruleof discretion and not one of compulsion. In anappropriate case, in spite of the availability of analternative remedy, a writ court may still exercise itsdiscretionary jurisdiction of judicial review, in atleast three contingencies, namely, (i) where the writpetition seeks enforcement of any of the fundamentalrights; (ii) where there is failure of principles ofnatural justice; or (iii) where the orders orproceedings are wholly without jurisdiction or the viresof an Act is challenged. In these circumstances, analternative 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 statutorydiscretionary power is bound to take into considerationall the attending facts and circumstances of the casebefore imposing an order of punishment. While exercisingsuch power, the disciplinary authority must act reasonablyand fairly. The respondent occupied the lowest rank ofthe cadre. He was merely a contingency peon.Continuation of his service in the department would notbring a bad name to the State. He was not convicted forany act involving moral turpitude. He was not punishedfor any heinous offence."(v)2008 (3) SCC 484 (Moni Shankar vs. Union of India andanother)"17.The departmental proceeding is a quasi-judicialone. Although the provisions of the Evidence Act are notapplicable in the said proceeding, principles of naturaljustice are required to be complied with. The courtsexercising power of judicial review are entitled toconsider as to whether while inferring commission ofmisconduct on the part of a delinquent officer relevantpiece of evidence has been taken into consideration andirrelevant facts have been excluded therefrom. Inferenceon facts must be based on evidence which meet therequirements of legal principles. The Tribunal was thus,entitled to arrive at its own conclusion on the premisethat the evidence adduced by the Department, even if it istaken on its face value to be correct in its entirety, meetthe requirements of burden of proof, namely, preponderanceof probability. If on such evidences, the test of thedoctrine of proportionality has not been satisfied, theTribunal was within its domain to interfere. We must placeon record that the doctrine of unreasonableness is givingway to the doctrine of proportionality."5b.Learned counsel has also relied on a decision of the AndhraPradesh High Court reported in 2009 (4) SLR 11 in the case ofJ.Srinivasa Rao vs. UCO Bank"23.It has already been pointed out that though 1stcharge was that the petitioner is guilty of fabricating thedocuments, the Enquiry Officer held the same as proved,without even mentioning any ingredients of fabrication, onthe part of the petitioner. The Disciplinary Authority onhis part, blindly followed the said finding, which, inturn, violative of the mandatory provisions of law. Thisis only illustrative. The disciplinary and AppellateAuthorities have committed irregularities, at theirrespective levels. " https://hcservices.ecourts.gov.in/hcservices/

6.On the other hand, learned counsel for the respondentswould submit that the writ petition is liable to be dismissed on thegrounds of non-filing of appeal against the order of dismissal passedby the disciplinary authority and the petitioner, being an Awardstaff, ought to have approached the Central Government IndustrialTribunal, Chennai for redressal of his grievance, viz. order ofdismissal. 6a.To substantiate his stand, learned counsel for therespondents 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 upas follows : whenever a workman employed in an industryis dismissed or removed from service and the workmandesires to challenge the legality of such action of themanagement of an industry, on grounds of violation ofprocedure, as regulated by the prescribed rules orrules of natural justice, the workman should resort tothe remedy available under S.10 of the IndustrialDisputes Act and a petition under Article 266 shouldnot be entertained, notwithstanding the fact that theindustry is under the management of a statutoryCorporation or body, which is an 'authority' fallingwithin the definition of the word 'state' as defined inArt. 12 and amenable to the writ jurisdiction of thisCourt under Art. 226 of the Constitution."(ii)a decision of the Patna High Court reported in 1985 (I) LLJ343 (Dinesh Prasad and others vs. State of Bihar and others)"15.We do not find much force in either of thecontentions. It is no doubt true that the remedyprovided under the Act under S.33-C, on the facts and inthe circumstances of this case involving disputes inrelation to the two settlements arrived at between themanagement and the workmen, was not the appropriateremedy. It is also true that it was not open to theworkmen concerned to approach the Labour Court or theTribunal directly for adjudication of the dispute. It isfurther well established on the authorities of this courtthat the Government under certain circumstances even onthe ground of expediency (vide State of Bombay vs.K.P.Krishnan. [1960-II LLJ 592] and Bombay Union ofJournalists vs. State of Bombay [1964-I LLJ 351]) canrefuse to make a reference. If the refusal is notsustainable in law appropriate directions can be issuedby the High Court in exercise of its writ jurisdiction.But it does not follow from all this that the remedyprovided under the Act is a misnomer. Reference ofindustrial disputes for adjudication in exercise of the https://hcservices.ecourts.gov.in/hcservices/ power of the Government under S.10(1) is so common thatit is difficult to call the remedy a misnomer orinsufficient or inadequate for the purpose of enforcementof the right or liability created under the At. Theremedy suffers from some handicap but is well compensatedon the making of the reference by the wide powers of theLabour Court or the Tribunal. The handicap leads only tothis conclusion that for adjudication of an industrialdispute in connection with a right or obligation underthe general or common law and not created under the Act,the remedy is not exclusive. It is alternative. Butsurely for the enforcement of a right or an obligationunder the Act the remedy provided uno flatu in it is theexclusive remedy. The legislature in its wisdom did notthink it fit and proper to provide a very easy and smoothremedy for enforcement of the rights and obligationscreated under the Act. Persons wishing the enjoyment ofsuch rights and wanting its enforcement must rest contetto secure the remedy provided by the Act. Thepossibility that the Government may not ultimately referan industrial dispute under S.10 on the ground ofexpediency is not a relevant consideration in thisregard.22.... the salutary rule is that the writ courtwould entertain the matter only if the adequate andefficacious remedies have been first resorted to andexhausted. The failure to observe that rule can only beat the peril of crushing the extraordinary jurisdictionitself and ultimately rendering it inefficacious becauseit is, and was never intended, to replace or substitutethe ordinary legal remedies expressly provided by theLegislature. Therefore, on principle itself resort tothe extraordinary jurisdiction is permissible only afterresorting to the alternative remedy where available."(iii)(1998) 6 SCC 549 (Scooters Indian and others vs. VijaiE.Eldred)"2.The above facts alone are sufficient to indicatethat there was no occasion for the High Court to entertainthe writ petition directly for adjudication of anindustrial dispute involving the termination of disputedquestions of fact for which remedy under the industriallaws was available to the workman. ... It is also extraordinary for the High court tohave held clause 9.3.12 of the standing orders as invalid.Learned counsel for the respondent rightly made no attemptto 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'sjudgment, 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 recordto show that he had reported for duty within the periodindicated in the notice issued in terms of clause 16 ofIV bipartite settlement. In the circumstances, we findthe High Court had proceeded on an erroneous basis ofnon-compliance with the principles of natural justice,whereas the true content of the principles of naturaljustice should have been borne in mind, particularly whenthere was an agreement between the parties as to themanner in which the situation should be dealt with andthe consequence that would ensue thereof."(v)(2004) 6 SCC 325 (Vice Chairman, Kendriya VidyalayaSangathan 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 awell-settled principle of law that the principles ofnatural justice should not be stretched too far and thesame 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, awrit court may exercise its discretionary jurisdiction ofjudicial review inter alia in cases where the court or thetribunal lacks inherent jurisdiction or for enforcement ofa fundamental right or if there has been a violation of aprinciple of natural justice or where vires of the Act isin question. In the aforementioned circumstances, thealternative remedy has been held not to operate as a bar(See Whirlpool Corpn. vs. Registrar of Trade Marks, SanjanaM.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 habitualabsentee. He in his explanation, in answer to thecharge-sheet pleaded guilty admitting the charges. Interms of Section 58 of the Evidence Act, charges havingbeen admitted were not required to be proved. It was onthat premise that the enquiry proceeding was closed.Before the enquiry officer, he did not submit theexplanation 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 anotherauthority, which had not been pleaded in the departmentalproceedings, cannot by itself be a ground to hold thatthe principles of natural justice had not been compliedwith in the disciplinary proceedings.21.Once it was found that all the proceduralrequirements have been complied with, the courts wouldnot ordinarily interfere with the quantum of punishmentimposed 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 nocondonation of the absence without leave as held by theHigh Court. On the contrary, it was clearly indicatedthat no leave was due and even leave without pay cannotbe granted. Therefore, direction was given to join backimmediately failing which certain presumptions were to bedrawn as noted above. 12.As noted above, sick leave can be granted onlyon the production of a medical certificate from aregistered medical practitioner clearly stating as far aspossible the diagnosis and probable duration oftreatment. There was no such indication in thecertificates purported to have been furnished by therespondent. It is to be noted that the respondent evendid not join after receipt of the letter dated03.08.1994. The charges against the respondent, interalia, were as follows :"(i)wilful insubordination and disobedience oflawful and reasonable orders of his superiors,(ii)absence without leave, without sufficientgrounds or proper or satisfactory explanation,(iii)absence from his appointed place of workwithout permission or sufficient cause."18.Mere sending of an application for grant ofleave much after the period of leave was over as also thedate of resuming duties cannot be said to be a bona fideact on the part of the workman. The Bank, as noticedhereinbefore, in response to the lawyer's noticecategorically stated that the workman had been carrying https://hcservices.ecourts.gov.in/hcservices/ on some business elsewhere.20.... A limited enquiry as to whether theemployee concerned had sufficient explanation for notreporting to duties after the period of leave hadexpired, or failure on his part on being asked so to do,in our considered view, amounts to sufficient compliancewith the requirements of the principles of naturaljustice."7.An analysis of the facts of this case would show that thepetitioner was appointed as Messenger in Appanthirupathy Branch ofthe Indian Overseas Bank in June 1991 and his service was confirmedin December 1991. According to the petitioner, he availed leave toassist his age old mother in her daily routine, as she could not doanything independently; moreover, he had to look after his brother'sson aged 12 years, since his brother died two years ago; that apart,he himself was suffering from jaundice during December 1998.8.A perusal of the material records would show that thepetitioner was on leave from April 1996 to February 1998 for 373days; he again absented himself from 06.10.1998 by submitting a leaveletter for 15 days. Thereafter, he was extending his leave bysubmitting leave letter one after another. In spite of being advisedby the Regional Office, Madurai that his leave was declined and hehad to report for duty immediately, the petitioner did not respond tothe same and hence, a charge sheet dated 21.11.1998 was issuedagainst the petitioner for contravening the following clauses of theBi-partite settlement dated 14.12.1966 between the Bank and itsworkmen as amended up to date."17.7 (Minor misconduct)(b)Unpunctual or irregular attendance(e)neglect of work, negligence in performing duties17.5 (Gross Misconduct)(d)willful damage or attempt to cause damage to the property of the bank or any of its customers. (f)habitual doing of any act i.e. unpunctual and irregular attendance in your case (you have been charge sheeted 4 times earlier)"9.In the meantime, on 14.01.1999, the petitioner came to theBranch all of a sudden and signed the Attendance Register withoutsubmitting leave letter and medical certificate. Since thepetitioner remained absent without giving any information to theBranch, the petitioner was issued with an additional charge sheet https://hcservices.ecourts.gov.in/hcservices/ dated 23.01.1999 for willful insubordination or disobedience of anylawful and reasonable order of the management or of a Superior underclause 17.5 (e) (Gross Misconduct) of the Bi-partite Settlement inaddition to contravening the clauses of the Bi-partite Settlementmentioned above.10.Pursuant thereto, the Disciplinary Authority was appointedas Enquiry Officer to conduct the enquiry; the enquiry was conductedand the Enquiry Officer submitted his Report holding that since theCharge-Sheeted Employee has admitted the charges wholly andunconditionally, all the charges levelled against him in the chargesheet dated 21.11.1998 and in the additional charge sheet dated23.01.1999 stand established in toto and the Charge-Sheeted Employeeis found to be guilty of the charges under clauses 17.7 (b) & (e) and17.5 (d) (e) & (f) of the said Bi-partite Settlement.11.Thereafter, a show cause notice dated 23.03.1999 was issuedto the petitioner in respect of the charge sheets dated 21.11.1998and 23.01.1999 along with the Enquiry Officer's Report to enable himto provide his submissions on the Enquiry Officer's Report within thestipulated time and also indicated that a personal hearing will begiven to him on 26.03.1999 at 11.00 am. Thereafter, the DisciplinaryAuthority, referring to the Show Cause Notice dated 15.03.1999 andthe subsequent letter dated 23.03.1999, passed an order on 31.03.1999observing that (i) the petitioner has admitted the facts of the casein all its details to be true; (ii) the petitioner has admitted themisconducts wholly and unconditionally in the enquiry proceedings tothe Enquiry Officer and tendered an apology for the misconducts and(iii) the petitioner has absented himself wilfully for a longduration. Past records show that he had absented himself for 331days on various occasions from September 1996 to February 1998. Hewas charge-sheeted on 19.12.1996, 03.05.1997, 23.10.1997 and30.12.1997 for his unauthorised absenteeism. Since he assured to bepunctual in future and repented for the happenings, a punishment of'Stoppage of one increment without cumulative effect' was awardedvide Original Order dated 20.05.1998. But, it is found that he hasnot changed his attitude and habit. Hence, the DisciplinaryAuthority passed the original order of awarding punishment of'dismissal without notice' under clause 17.6(a) of the Bi-partiteSettlement dated 14.12.1966 between the Bank and its Workmen asamended upto date. It is seen that against the said order ofdismissal from service, the petitioner has not preferred any appeal.12.In this case, the petitioner has raised three questions toshow that there is violation of the principles of natural justice,viz., (i) the show cause notice dated 23.03.1999 was served on himonly one day prior to the date of personal hearing; therefore, properopportunity was not given to him by the Disciplinary Authority toattend the personal hearing (ii) the findings of the Enquiry Officeris perverse and (iii) the impugned order is passed without total https://hcservices.ecourts.gov.in/hcservices/ application of mind and the punishment imposed on the petitioner isdisproportionate to the charges.13.This court, admitted the writ petition and Rule Nisi wasissued. Finding that there was prima facie case as there wasviolation of the principles of natural justice, now, at this point oftime, it is not advisable to the petitioner to go for an alternativeremedy of appeal and the maintainability of this petition has to bedecided. It is seen from the records, that the show cause notice wasserved to the petitioner only one day in advance to the personalhearing and it is not possible for any prudent person to submit hisexplanation on the very next day and therefore, it appears that thereis violation of the principles of natural justice. It is clear thatthe petitioner was not given an opportunity to submit his explanationon the show cause notice dated 23.03.1999. When the impugned orderof dismissal from service imposed by the disciplinary authority onthe petitioner stands vitiated by violation of the principles ofnatural justice and when there is failure of natural justice, thequestion of alternative remedy at the stage of final adjudication ofthe matter could not be raised, as exclusion of jurisdiction due toavailability of an alternative remedy is a rule of discretion and notone of compulsion. Alternative remedy does not operate as a bar injudicial review as held by the Supreme Court in the case of M.P.State Agro Industries Development Corporation. Therefore, the firstquestion is answered in favour of the petitioner.14.As regards the second question that there is perversity inthe findings of the Enquiry Officer, it is seen that the DisciplinaryAuthority, appointed one V.Jebasingh, Officer of the Bank as EnquiryOfficer and one P.Sneha Kumar as Presenting Officer and the enquirywas ordered to be held at the Appanthirupathi Branch itself on02.03.1999. The petitioner pleaded guilty of the charges levelledagainst him stating that his mother was ailing from a disease whichneeded operation in her head and he had to assist her in her dailyroutine; moreover, he had to look after his nephew aged 12 years, ashis brother, who was employed in Indian Bank, died two years ago;besides that, he was suffering from jaundice from December 1998. Thepetitioner requested the Enquiry Officer to give him yet anotherchance to show involvement in the office work and he also assuredthat he will attend duty with sincerity. After hearing theexplanation from the petitioner regarding the charges, the enquirywas concluded on the very same day, i.e. 02.03.1999 itself.14a.It is seen that the Enquiry Officer has concluded that thepetitioner has admitted the charges levelled against him vide ChargeMemos dated 21.11.1998 and 23.11.1998, wholly and unconditionally andhence, held that he is guilty of the charges. A perusal of therecords would reveal that a copy of the Enquiry Officer's Report wasforwarded to the petitioner to provide his submissions on the EnquiryOfficer's Report within the stipulated time as advised in the Show https://hcservices.ecourts.gov.in/hcservices/ Cause Notice sent to him and also it was informed that a personalhearing will be given by the Disciplinary Authority on 26.03.1999 at11.00 am. It appears that the enquiry proceedings are in accordancewith the Rules and procedures contemplated and there is no perversityin the proceedings of the Enquiry Officer. 15.With regard to the last question raised that the impugnedorder passed is without application of mind and the punishmentimposed on the petitioner is disproportionate to the charges, it isseen that the Disciplinary Authority has not given attention to thecharges under which the punishment of dismissal from service isimposed.16.It is the contention of the learned counsel for thepetitioner that a duty and responsibility has been cast on theDisciplinary Authority to weigh the pros and cons, consider the caseand impose appropriate punishment; in a given case, if the penalty isproved to be disproportionate or there is no case even to find thecharges proved or the charges are based on no evidence, that would befor the court to consider on merits, not as court of appeal, butwithin its parameters of supervisory jurisdiction and to giveappropriate relief. In the instant case, taking into account thepast records of the petitioner that there was continued unauthorisedabsence and that the petitioner has submitted leave letter withoutenclosing the medical certificate and that even after caution hejoined duty, severe punishment of dismissal from service was imposedon the petitioner.17.It is the ordained principle that it is for theDisciplinary Authority or the Administrative Authority to decide thequantum of punishment in a case of misconduct and the role of thecourt is only secondary. If the punishment imposed by thedisciplinary authority shocks the conscience of this court, it wouldappropriately mould the relief, either directing the DisciplinaryAuthority to reconsider the penalty imposed, or to shorten thelitigation, it may itself, in exceptional and rare cases, imposeappropriate punishment with cogent reasons in support thereof, asheld by the Supreme Court in B.C.Chaturvedi's case. While examiningthe above proportionality of punishment to the charges levelledagainst the petitioner, though the petitioner in the enquiry hasadmitted the charges unconditionally and with folded hands requestedthe authority to give another chance to correct himself and assuredthat he would attend his duty with sincerity and in spite of statingthat his mother, who was ailing with a disease needed his assistanceand that he himself was suffering from jaundice, he was imposed withthe extreme punishment of dismissal from service, which shocks theconscience of this court. 18.In Hazari Lal's case, the doctrine of proportionality wasconsidered by the Supreme Court, wherein a peon in Middle School was https://hcservices.ecourts.gov.in/hcservices/ convicted for assaulting a person, which finally led to his dismissalfrom service; the Supreme Court therein held that the penalty ofdismissal is disproportionate to the charges. It held that thedoctrine of proportionality may require the reviewing court to assessthe balance which the decision-maker has struck, not merely whetherit is within the range of rational or reasonable decisions and theproportionality test may go further than the traditional grounds ofreview inasmuch as it may require attention to be directed to therelative weight accorded to interests and considerations. Thus, theSupreme Court has time and again considered the applicability of thedoctrine of proportionality. 19.In a recent decision of the Supreme Court in the case ofRamanuj Pandey (2009 (7) SCC 248), it is held that while consideringthe power to interfere with the order of punishment, the Apex Court,while exercising the jurisdiction, is empowered to alter or interferewith the penalty. Though, learned counsel for the respondents hasrelied on various decisions in respect of misconduct and theproportionality of punishment to the charges framed, the decisionsrelied on by the counsel for the petitioner do help the petitioner tosubstantiate his case.20.Therefore, while looking into the relevant doctrines andtaking into consideration the penalty of dismissal from serviceimposed on the petitioner by the Disciplinary Authority, the impugnedproceedings of the Disciplinary Authority is liable to be set aside.21.In the light of the above discussion and upon analysing thevarious decisions of the Apex Court and on strictly scrutinising thematerials on record, the order of dismissal from service passedagainst the petitioner warrants interference and accordingly, theorder dated 31.03.1999 passed by the 2nd respondent is set aside andthe matter is remanded to the Disciplinary Authority to re-considerthe order of punishment imposed on the petitioner and passappropriate orders taking into account all the relevant factors anddecisions rendered by the Apex Court. This exercise shall becompleted within a period of two (2) months from the date of receiptof a copy of this order.The writ petition is allowed with the above direction. No costs.abe Sd/Asst.Registrar/true copy/Sub Asst.Registrar https://hcservices.ecourts.gov.in/hcservices/ To :1.The Chairman & Managing Director,Indian Overseas Bank,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 20.1CC to mr.P.Narayanamoorthy, Advocate (SR.58423)1CC to Mr.C.Ravichandran, Advocate (SR.No.58220)pre-delivery order in W.P.No.8896 of 2000KK (CO)SS (11.11.2009)9