K.Anbalagan v. The Deputy General Manager, Andhra Bank, Zonal Office, Chennai-18

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED : 19.01.2012CORAMTHE HONOURABLE MR.JUSTICE K.CHANDRUW.P.No.17821 of 2009K.Anbalagan.. Petitioner Vs.1.The Deputy General Manager, Andhra Bank, Zonal Office, Chennai-18.2.The General Manager, Personnel Department (IR) Andhra Bank, Head Office, Hyderabad.3.The Executive Director & Reviewing Authority, Human Resources Department (IR), Andhra Bank, Head Office, Hyderabad.4.The Chief Manager & Enquiry Officer, IRMD Department Head Office, Hyderabad.5.The Deputy General Manager IR, Disciplinary Authority (Personnel Dept.) IR, Andhra Bank, Head Office, Hyderabad... Respondents This writ petition is preferred under Article 226 of theConstitution of India praying for the issue of a writ ofcertiorarified mandamus to call for the records of the thirdrespondent in its proceedings No.Lr.No.666/20/593/2172, dated28.02.2009, wherein the third respondent has upheld the punishmentimposed by the appellate authority by forcing the petitioner to goon compulsory retirement and to direct the respondents to reinstatethe petitioner with backwages at Chennai. For Petitioner : Mr.S.Kumar for M/s.G.Vijay Anand Associates https://hcservices.ecourts.gov.in/hcservices/ For Respondents : Ms.Rita Chandrasekar for M/s.Aiyar & Dolia- - - - ORDERThe petitioner has filed the present writ petition seekingto challenge an order passed by the respondent bank imposingcompulsory retirement, dated 28.2.2009 on the petitioner.2.In the writ petition, notice of motion was ordered on2.9.2009. Subsequently, it was admitted on 09.12.2010. Theapplications for interim stay as well as for direction weredismissed on the same day. On notice from this court, therespondents have filed a counter affidavit, dated 25.11.2009.3.The case of the petitioner was that he joined as aProbationary officer in the respondent bank in the year 1983. Heserved in various branches all over India. During his service, healso got appreciation from the bank. The last office held by himwas the post of Senior Manager. He had completed 25 years ofcontinuous service. During the year 1998, he had undergone an OpenHeart Surgery for Mitral Valve Replacement at Madras MedicalMission Hospital, Chennai. Subsequent to the operation, he had totake regular follow up with the hospital. He had availed sick leavefor six months during the year 1998. Further he had acuteMyocardial Infarction and underwent coronary Angioplasty plusstenting. Therefore, he had to avail sick leave from May, 2005 toNovember, 2005. Since he had undergone two times Open Hear surgery,it had constantly caused giddiness and chest pain. He was asked totake sufficient precaution. He had availed sick leave for sixmonths during June, 2002 to November, 2002 and also from May, 2005to November, 2005. 4.He could not appear before the panel Doctor as instructedby the management, since his heart was functioning only with 35% EFwhich precluded him from undertaking any travel. But, however, hewas transferred by an order dated 15.4.2008 toKurnool Zone and wasrelieved from the Zonal office, Chennai. He was asked to report forduty at Kurnool zone. But he could not report for duty due to hisheart condition. He sent a representation, dated 15.4.2008 andrequested for retention at Chennai on health ground. It was notconsidered. Therefore, he had applied for sick leave enclosing themedical certificate and requested to sanction of leave for themonths of June, July and August, 2008, which was not rejected. Hefurther sent a telegram on 19.10.2008. Since there was heavytraffic flow between Chennai and Hyderabad, he could not get anytrain or air ticket. He was also unable to go to Hyderabad forcheck up. Despite all these, he was given a charge memo, dated30.6.2008 issued by the Deputy General Manager (Personnel).5.The charge was that he remained unauthorised absent https://hcservices.ecourts.gov.in/hcservices/ without prior permission. Despite his transfer and relieved, he hadnot joined duty at Kurnool Zone. The petitioner sent hisexplanation, dated 12.7.2008. Not satisfied with the explanation,an Enquiry Officer was appointed to conduct the enquiry. In themeanwhile, the transfer order to Kurnool was modified to StationeryDepartment in the Head Office at Hyderabad. He had joined duty atStationery Department and worked for two days. He had also availedjoining time. During the enquiry, he had pleaded not guilty. Butthe enquiry officer found him guilty of charges. He was asked tosend his further explanation on the enquiry report. He had sent adetailed explanation about his absence. Unfortunately, the fifthrespondent by an order, dated 26.11.2008 had imposed a majorpenalty of compulsory retirement treating his absence from29.5.2008 as unauthorised absence. The petitioner had preferred anappeal to the General Manager (HR), who is the appellate authority.The appeal was dismissed on the ground that there are noextenuating circumstances to interfere with the penalty. Thepetitioner also sent a representation to the reviewing authority on09.01.2009. The Reviewing authority also rejected the reviewapplication. It is thereafter the petitioner has moved this courtchallenging the order of compulsory retirement from service.6.The grounds raised by the petitioner was that the orderhas been passed without application of mind. The petitioner hasproduced the medical certificate as a proof of two Open Heartsurgeries. The authorities did not consider the reason for hisabsence. The reason given that he did not appear for medical checkup before the panel Doctor cannot be said to be a correct reasonfor dismissing him from service. The certificate produced by himwas give by the specialist. The removal of the petitioner was notdone following due process of law and it is opposed to principlesof natural justice. The petitioner had also sent an applicationopting for pension, dated 17.9.2010, for which the respondent Bankby a reply dated 14.10.2010 informed the petitioner that he has noright to opt for pension as per the Joint Note submitted in thescheme framed by the Indian Banks' Association. The petitionerhimself in the additional typed set has produced the scheme of theIndian Banks' Association. In any event, the rejection of thepetitioner's request is not the subject matter of the present writpetition. 7.The contention raised by the respondent Bank in thecounter affidavit was that after his probation, he was posted asManager at S.K.R.Government College Extension Counter, Gudur tillJuly, 1991 and was later transferred to Tirupathi Branch for ashort while. He was subsequently brought to Chennai and promoted asMiddle Management Grade, Scale II cadre with effect from31.12.1993. He was posted to Kothapalli Haveli Branch in KarimnagarDistrict, where he worked from 1.6.1994 to 3.7.1998. In June, 1998,he was transferred to Chennai and posted at Shenoy Nagar Branch,where he reported for duty on 4.7.1998. He was subsequentlypromoted as Middle Management Grade, Scale III with effect from27.4.2002. Even on promotion, he was allowed to continue in Chennaidespite the norms laid by the bank to transfer on promotion to https://hcservices.ecourts.gov.in/hcservices/ other destination. In April, 2008, he was transferred to Kurnool.But he had failed to report for duty. Therefore, because of hisunauthorised absence and not joining duty, he was imposed withpenalty of compulsory retirement. The petitioner's surgicalexpenses were reimbursed by the bank. The petitioner remainedabsence unauthorisedly though he was relieved from the zonaloffice. He also refused to appear before the bank's panel doctor atHyderabad for medical examination. 8.It was further stated that only in order to facilitatethe enquiry, he was temporarily transferred to the StationeryDepartment in the Head Office. He had participated in the enquiry.In the enquiry, he pleaded guilty. Therefore, it was not open tohim to state that he never pleaded guilty. The Kurnool branch isnot the rural branch. It was the district headquarters with allmedical facilities available. The respondent bank had shown himsufficient indulgence by retaining him at Chennai for more than 10years despite his promotion to the higher post.9.The learned counsel for the petitioner placed relianceupon a judgment of the Supreme Court in Pritam Singh Vs. Union ofIndia and others reported in 2004 (4) CTC 789. This is forcontending that in that case a person who had put in 31 years oflong service was compulsorily retired on flimsy charge and that theSupreme Court had interfered with the penalty.10.The learned counsel for the petitioner placed relianceupon a judgment of the Supreme Court in Jagdish Singh v. PunjabEngineering College reported in (2009) 7 SCC 301 and referred tothe following passage found in paragraph 6, which reads as follows:6.The courts and the tribunals can interfere withthe decision of the disciplinary authority onlywhen they are satisfied that the punishment imposedby the disciplinary authority is shockinglydisproportionate to the gravity of the chargesalleged and proved against a delinquent employeeand not otherwise. Reference can be made to thedecision of this Court in V. Ramana v. A.P. SRTC1wherein it is stated: (SCC p. 348, paras 11-12)“11.The common thread running through in allthese decisions is that the court should notinterfere with the administrator's decisionunless it was illogical or suffers fromprocedural impropriety or was shocking to theconscience of the court, in the sense that it wasin defiance of logic or moral standards. In viewof what has been stated in Wednesbury case2 thecourt would not go into the correctness of thechoice made by the administrator open to him andthe court should not substitute its decision forthat of the administrator. The scope of judicial https://hcservices.ecourts.gov.in/hcservices/ review is limited to the deficiency in decision-making process and not the decision.12.To put it differently unless the punishmentimposed by the disciplinary authority or theappellate authority shocks the conscience of thecourt/tribunal, there is no scope forinterference. Further to shorten litigations itmay, in exceptional and rare cases, imposeappropriate punishment by recording cogentreasons in support thereof. In a normal course ifthe punishment imposed is shockinglydisproportionate it would be appropriate todirect the disciplinary authority or theappellate authority to reconsider the penaltyimposed.”11.The learned counsel referred to a judgment of this CourtV.Senthurvelan Vs. High Court of Judicature at Madras reported in(2009) 7 MLJ 1213 and referred to the following passages found inparagraphs 9 and 12, which reads as follows: "9.Therefore, considering the fact that inspite of submission of the petitioner to theenquiry officer admitting the guilt and submittingthe medical certificate to prove the fact that hewas ill during the period, which forced him toabstain from duty, the same was not at all takeninto consideration by the disciplinary authority,resulting in imposing the punishment of removalfrom service, which was confirmed both by theappellate authority and this Court in the writpetition, we have no hesitation to hold that theabove said major punishment of removal from serviceis shockingly disproportionate to the provedcharge. The disciplinary authority or at least theappellate authority should have considered thisaspect that the punishment inflicted on thedelinquent is shockingly disproportionate to theproved charges and would have imposed a lesserpunishment, taking into consideration the fact thatthe petitioner himself has admitted the guilt, whohas no bad antecedents.12.Following the above judgment of theHonourable Apex Court, since the facts are more orless similar, we have no hesitation to hold thatthe ends of justice would be met, if punishmentimposed by the disciplinary authority is modifiedto that of stoppage of two increments withcumulative effect and further declare that thepetitioner/delinquent would not be entitled for anymonetary benefits during the period he was out ofservice, applying the principle of 'no work, nopay' and that period would be counted only for thepurpose of his service benefits. The respondents https://hcservices.ecourts.gov.in/hcservices/ are directed to reinstate the petitioner intoservice within eight weeks from the date ofreceipt of a copy of this order and thedisciplinary authority is directed to issueappropriate orders regarding the above mentionedpunishment on the petitioner/delinquent immediatelyon his reinstatement." 12.A further reference was made to a judgment of theSupreme Court in Chairman-cum-Managing Director, Coal India Limitedv. Mukul Kumar Choudhuri reported in (2009) 15 SCC 620 forcontending that the doctrine of proportionality should be appliedfor interfering with the quantum of penalty. Reference was made tothe following passages found in paragraphs 19 to 22 which reads asfollows:"19*. The doctrine of proportionality is, thus,well-recognised concept of judicial review in ourjurisprudence. What is otherwise within thediscretionary domain and sole power of thedecision-maker to quantify punishment once thecharge of misconduct stands proved, suchdiscretionary power is exposed to judicialintervention if exercised in a manner which is outof proportion to the fault. Award of punishmentwhich is grossly in excess to the allegationscannot claim immunity and remains open forinterference under limited scope of judicialreview.20. One of the tests to be applied while dealingwith the question of quantum of punishment wouldbe: would any reasonable employer have imposed suchpunishment in like circumstances? Obviously, areasonable employer is expected to take intoconsideration measure, magnitude and degree ofmisconduct and all other relevant circumstances andexclude irrelevant matters before imposingpunishment.21. In a case like the present one where themisconduct of the delinquent was unauthorisedabsence from duty for six months but upon beingcharged of such misconduct, he fairly admitted hisguilt and explained the reasons for his absence bystating that he did not have any intention nordesired to disobey the order of higher authority orviolate any of the Company's rules and regulationsbut the reason was purely personal and beyond hiscontrol and, as a matter of fact, he sent hisresignation which was not accepted, the order ofremoval cannot be held to be justified, since inour judgment, no reasonable employer would haveimposed extreme punishment of removal in likecircumstances. The punishment is not only undulyharsh but grossly in excess to the allegations.22. Ordinarily, we would have sent the matter https://hcservices.ecourts.gov.in/hcservices/ back to the appropriate authority forreconsideration on the question of punishment butin the facts and circumstances of the present case,this exercise may not be proper. In our view, thedemand of justice would be met if Respondent 1 isdenied back wages for the entire period by way ofpunishment for the proved misconduct ofunauthorised absence for six months."13.Per contra, learned counsel for the bank placed relianceupon a judgment of the Supreme Court in Chairman & ManagingDirector, V.S.P. v. Goparaju Sri Prabhakara Hari Babu reported in(2008) 5 SCC 569 by stating that the court's power is very limitedin interfering with the penalty. Reliance was placed upon thefollowing passages found in paragraphs 19 to 22 which reads asfollows:"19.A subsequent explanation before anotherauthority, which had not been pleaded in thedepartmental proceedings, cannot by itself be aground to hold that the principles of naturaljustice had not been complied with in thedisciplinary proceedings.20. The jurisdiction of the High Court in thisregard is rather limited. Its power to interferewith disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasonedorder only on sympathy or sentiments. (See MarutiUdyog Ltd. v. Ram Lal2; State of Bihar v. AmrendraKumar Mishra3; SBI v. Mahatma Mishra4; State ofKarnataka v. Ameerbi5; State of M.P. v. SanjayKumar Pathak6 and Uttar Haryana Bijli Vitran NigamLtd. v. Surji Devi7.)21. Once it is found that all the proceduralrequirements have been complied with, the courtswould not ordinarily interfere with the quantum ofpunishment imposed upon a delinquent employee. Thesuperior courts only in some cases may invoke thedoctrine of proportionality. If the decision of anemployer is found to be within the legalparameters, the jurisdiction would ordinarilynot be invoked when the misconduct stands proved.(See Sangfroid Remedies Ltd. v. Union of India8.)22.The High Court in exercise of its jurisdictionunder Article 226 of the Constitution of India alsocannot, on the basis of sympathy or sentiment,overturn a legal order."14.The Supreme Court more or less in an identicalcircumstance dealt with the case of a police inspector in notobeying the transfer order and going on medical leave, but refusedto submit himself for examination by the medical board. When he wasdismissed and that punishment was interfered with by the Tribunal,the Supreme Court took exception to the tribunal in setting asidethe order of dismissal, vide its judgment in Secretary to Govt. v. https://hcservices.ecourts.gov.in/hcservices/ A.C.J. Britto reported in (1997) 3 SCC 387 and in paragraphs 9 to11, the Supreme Court had observed as follows:"9.The Rules applicable in this case do notspecify acts of misconduct for which a delinquentofficer can be punished. Rule 2 empowers thecompetent authorities to impose upon members of theService penalties specified therein “for good andsufficient reason”. Therefore, the decision of thisCourt in A.L. Kalra case4 is clearlydistinguishable. Before holding that there was nojustification to initiate disciplinary proceedingagainst the respondents, the Tribunal ought tohave considered whether there was “good andsufficient reason” for initiating such proceedingsagainst him. It was not justified in taking thatview on the ground that such an act of delinquencyhas not been specified in the Rules as an act ofmisconduct. Not obeying a legitimate order of hissuperior by a member of the Police Force has to beregarded as an act of indiscipline and wouldcertainly provide a good and sufficient reason forinitiating a disciplinary proceeding.10. It was next contended by the learned counselfor the respondent that the intention of therespondent was not to flout the order passed by theSuperintendent of Police and non-compliance was dueto bona fide reason, namely, that he did not havesufficient money for travelling from Madras toTrichy and he was denied a railway warrant for thatpurpose. In support of his contention that merenon-compliance with an order of a superior officershould not be regarded as an act of misconductunless there is an intention to flout the same, thelearned counsel relied upon the decision in Unionof India v. Giriraj Sharma6. In that case theemployee was deputed to undergo a course as anelectrician. He sought leave and then applied forextension of leave. That request was rejected. Foroverstaying the period of leave his services wereterminated. The said order was challenged in theHigh Court by filing a writ petition. The HighCourt having set aside the order, the Union ofIndia preferred an appeal to this Court. Whiledismissing the appeal this Court observed that thepunishment of dismissal for overstaying the periodof 12 days in the circumstances of the case wasreally harsh as the said circumstances showed thatit was not his intention to wilfully flout theorder, but the circumstances had forced him to doso.11. As against that, it was submitted by thelearned counsel for the appellants that in thiscase the respondent had started remaining absent on https://hcservices.ecourts.gov.in/hcservices/ medical grounds immediately after he wastransferred to Trichy from Madras and that clearlyindicated that he did not like the transfer andwanted to remain at Madras to carry on activitiesof the Association of which he was the Secretary.We find some force in this contention. Thecertificates produced by the respondent forobtaining medical leave clearly show that he wasnot all the times at Madras but had gone and stayedfor quite a long period at Dindigul and Madurai.This circumstance was sufficient to raise asuspicion in the mind of the authorities that theground given by the respondent for remaining absentat Trichy was really an excuse and he was notgenuinely sick. It was under these circumstancesthat he was directed on 24-4-1981 to appear beforethe Medical Board. Without assigning any reason hedid not do so. Therefore, he was again directed byan order dated 4-6-1981 to appear before the Boardon 9-6-1981. This communication was received by therespondent. On 8-6-1981 he addressed a letter tothe Superintendent of Police expressing hisinability to appear before the Medical Board on 9-6-1981 on the ground that he had no money to travelfrom Madras to Trichy and that he would appearbefore the Board only on completion of hisleave. He had also stated therein that a railwaywarrant for the journey may be granted to him. Whatwe find from the material on record is that therespondent was already in Trichy on 4-6-1981 whenthe said order was personally served upon him. Eventhough he knew on that day that he was required toappear before the Medical Board at Trichy on 9-6-1981 he went away to Madras and from there sent aletter on 8-6-1981. The learned counsel for therespondent could not point out any provisionrequiring the police authorities to provide arailway warrant to a member of the Service undersuch circumstances. Mr R. Balakrishnan, DeputySuperintendent of Police has filed an additionalaffidavit stating clearly that there is no suchprovision. This statement made in the affidavit hasnot been controverted. It, therefore, clearlyappears to us that the reason given by him for notremaining present before the Medical Board was afalse excuse. It was his intention not to complywith the said order. His not appearing before theMedical Board was with a view to avoid an enquiryregarding his true state of health so that he wasnot compelled to resume duty. It was thus an act ofdisobedience and indiscipline. Therefore, in thefacts and circumstances of the case it cannot besaid that there was no good and sufficient reasonfor initiating a disciplinary proceeding against https://hcservices.ecourts.gov.in/hcservices/ the respondent."15.If it is seen in the context of the above legalprecedent and the factual matrix, then the petitioner has not madeout any case for interfering with the penalty of compulsoryretirement imposed on him. Hence the writ petition will standdismissed. However, there will be no order as to costs. sd/-Assistant RegistrarTrue Copy/-Sub Assistant RegistrarvvkTo1.The Deputy General Manager, Andhra Bank, Zonal Office, Chennai-18.2.The General Manager, Personnel Department (IR) Andhra Bank, Head Office, Hyderabad.3.The Executive Director & Reviewing Authority, Human Resources Department (IR), Andhra Bank, Head Office, Hyderabad.4.The Chief Manager & Enquiry Officer, IRMD Department Head Office, Hyderabad.5.The Deputy General Manager IR, Disciplinary Authority (Personnel Dept.) IR, Andhra Bank, Head Office, Hyderabad.+1 CC to Mr.Aiyar & Dolia Advocate Sr 3607ORDER INW.P.NO.17821 of 2009VS-COKV-31/01/2012