J.C. Grover vs Chhattisgarh Gram in Bank and Another

Satish K. Agnihotri, J.—By this petition, the petitioner seeks to quash the order dated 16.04.2005 (annexure-P/1) whereby the appointment of the petitioner has been cancelled and the order dated 26.12.2007 (Annexure-P/2) whereunder the appeal preferred by the petitioner was dismissed and the order dated 16.04.2005 was maintained. The facts, in brief, as projected by the petitioner, for proper adjudication of the case, are that initially the petitioner was appointed as Branch Manager in the Chhattisgarh Gramin Bank [earlier known as "Bilaspur Raipur Kshetriya Gramin Bank] (for short ''the respondent Bank") and joined in the month of November, 1984. While the petitioner was working at Korba, he availed medical leave for 26 days i.e. for the period from 26.09.2004 to 21.10.2004. Thereafter, he took again medical leave for 21 days i.e. from 05.11.2004 to 25.11.2004 and further for 31 days from 26.11.2004 to 26.12.2004 in total 78 days.

According to the petitioner, in the meantime, the petitioner was transferred from Korba to Patewa, Mahasamund and, as such, the petitioner joined at Patewa, Mahasamund on 22.01.2005 and applied for medical leave on 24.01.2005. On the basis of the said application, the respondent authorities by letter dated 29.01.2005 (Annexure -P/4) directed the petitioner to submit the medical certificate in support of his leave application. Subsequently, notices dated 03.02.2005 & 10.02.2005 (Annexure -P/4 pages 22 & 23 in paper book, respectively) were served upon the petitioner intimating him that the leave application dated 24.01.2005 was not supported by any medical certificate and the petitioner was called upon to submit his explanation within 7 days, failing which the petitioner would be health with for disciplinary action under Regulation 22 (2) of the Bilaspur Raipur Kshetriya Gramin Bank (Officers & Employees) Service Regulation, 2001 (for short "the Regulation, 2001"). Further, a notice dated 17/21.02.2005 (Annexure-P/4 page 24 in paper book) was served upon the petitioner informing him that if the medical certificate was not produced, it would be presumed that the petitioner was not interested to continue his services and the same would be deemed that he had resigned from the services.

The petitioner submitted his response to the show cause notice on 26.02.2005 (Annexure-p/5) stating that he was very much interested to serve, but on account of ill health he was unable to perform the duty and prayed that he may be permitted to avail the medical leave. In spite of the said fact, again by notice dated 12.03.2005 (Annexure-P/5) the petitioner was directed to produce the medical certificate, period wise, issued by the competent Doctor and further he was directed to join the duties within 7 days, failing which disciplinary action would be taken against him. On 19/21.03.2005 (Annexure-P/7) the petitioner submitted his reply stating that he would produce the medical certificate after completing the treatment at Bilaspur. Again on 29,03.2005 (Annexure-P/8) a show cause notice was issued to the petitioner informing him that he should join the services on or before 11.04.2005 with medical certificate for the period, he remained absent and explanation therefore, failing which his name would be struck of from the list of the employees of the Bank.

On 10.04.2005 & 12.04.2005 (Annexure-P/9 pages 29 & 30 in paper book respectively), the petitioner submitted his reply stating that he personally visited the head office and tried to submit the medical certificate, but they refused to accept the same and advised the petitioner to send the same by post. Thereafter, by the impugned order dated 16.04.2005 (Annexure-P/1) the appointment of the petitioner was cancelled treating non-response of the petitioner to earlier notices, as resignation from service. It was further stated that under Regulation 10 (1) of the Regulation, 2001 he could submit resignation letter with 3 months intimation or on payment of 3 months salary in lieu of that.

There against, the petitioner preferred an appeal on 29.05.2005 (Annexure-P/ 10). In the said appeal, the authorities directed the petitioner to produce the medical fitness certificate from the District Medical Board, Mahasamund, to which the petitioner submitted his response Board, Mahasamund, to which the petitioner submitted his response stating that he will produce the certificate from the Medical Board, Bilaspur, as he was taking treatment at Bilaspur. Since the prayer for the petitioner was not accepted, the petitioner appeared before the Medical Board, Mahasamund and submitted the medical certificate on 18.04.2006 (Annexure-P/16). Being dissatisfied with the response of the petitioner, the appeal of the petitioner was dismissed by order dated 26.12.2007 (annexure-P/2). Thus, this petition.

Shri Kesharwani, learned counsel appearing for the petitioner, would submit that the petitioner could not join the duties on account of his illness for which he had responded to the notices and submitted representation. Shri Kesharwani would further submit that under Regulation 22 (2) without holding proper enquiry, after framing charges, the petitioner could not be terminated. Even otherwise, the same is contrary to the provisions of Constitution of India, as no termination order can be passed without affording an opportunity of hearing to the employee concerned in accordance with the procedure laid down in the services rules, relies on the decisions of the Supreme Court in Delhi Transport Corporation Vs. D.T.C. Mazdoor Congress and Others, , & Major Singh Vs. State of Punjab and Others, . He also relies on a decision of this Court in Roshan Prasad Sidar Vs. State of Chhattisgarh and Others, .

Shri Pramod Verma, learned senior counsel appearing with Shri Sunit Verma, learned Advocate for the respondent Bank, submitted in support of the impugned orders passed by the authorities. Shri Verma would further submit that the conduct of the petitioner was such as he remained absent from his duties for a long time without complying with instructions or notices issued by the respondent Bank time and again and the petitioner also failed to produce proper medical certificate even before the appellate authority. Thus, there was no other option, but to cancel appointment or remove the petitioner. Shri Verma relies on a circular dated 20.02.1989 (Annexure-R/2), which provides for removal of Bank employees in case of unauthorized absence.

I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto.

Indisputably, several notices were issued to the petitioner on 03.02.2005, 10.02.2005, 17/21.02.2005, 26.02.2005, 12.03.2005, 29.03.2005, etc. The petitioner has also submitted his reply time to time, however, the medical certificates of competent officer were not produced regularly. The petitioner produced a medical certificate issued by the District Medical Board, Mahasamund on 18.04.2006. The said certificate disclosed over all condition of the petitioner, but it does not deal with any treatment or any requirement for rest, as pleaded by the petitioner. However, the service condition of the petitioner are governed by the regulations, 2001, which was notified on 26.06.2001 (Annexure-R/1).

Regulation 10 deals with termination of service by notice wherein it is provided that no officer or employee shall leave or discontinue his service in the Bank without first giving notice in writing to the Appointing Authority of his intention to leave or discontinue his service or resign. The period of notice shall be 3 months or 3 months pay for the notice period. Regulation 10 is not relevant and applicable to the facts of the case on hand, as this was not a case of leave or discontinuation from his service, on the basis of any notice by the petitioner.

Regulation 22, 38 & 73 of the Regulation, 2001 read as under:

Officer or employee not be absent from duty without permission or be late in attendance.

I. an officer or employee shall not absent himself from his duties without having obtained the permission of the competent authority, nor shall be absent himself in case of sickness or accident without submitting proper medical certificate.

II. an officer or employee who absents himself from duty without leave or overstays his leave, shall not be entitled to draw any pay and allowances for the period of such absence or overstayal, and shall be liable to such disciplinary measure as the Competent Authority may impose;

Provided that the Competent Authority may condone such absence or overstayal if he is satisfied that the Officer or Employee has remained absent or overstated his leave under circumstances beyond his control and direct that such absence or overstayal be regularized by admissible leave.

Penalties

Without prejudice to foregoing Regulations of this Chapter an officer or employee who commits a breach of these Regulations or who displays negligence, inefficiency or indolence or who commits acts detrimental to the interests of the Bank or in conflict with its instructions, or who commits a breach of discipline or is guilty of any other acts of misconduct, shall be liable for any one or more penalties as prescribed hereinafter.

Officers

(a) Minor Penalties

(i) Censure

(ii) Withholding or stoppage of increments of pay with or a without cumulative effect.

(iii) Withholding of promotion.

(b) Major Penalties

(i) Recovery from emoluments or such other amounts as may be due to him, of the whole or part or any pecuniary loss caused to the bank by negligence or breach or orders.

(ii) Reduction to a lower grade or post, or to a lower scale in a time scale.

(iii) Compulsory retirement.

(iv) Removal from Service which shall be a disqualification for future employment.

(v) Dismissal.

Explanation: The following shall not amount to a penalty within the meaning of this Regulation:

(i) withholding of one more increments of an officer on account of his failure to pass a prescribed departmental test or examination in accordance with the terms of appointment to the post which the holds.

(ii) stoppage of increments (s) of an officer at the efficiency bar in a time scale, on the grounds of his unfitness to cross the bar.

(iii) not giving an officiating assignment or non-promotion of an officer to a higher grade or post for which he may be eligible for consideration but for which he is found unsuitable after consideration of his case.

(iv) reserving or postponing the promotion of an Officer for reasons like completion of certain requirement for promotion or pendency of disciplinary proceedings.

(v) reversion to a lower grade or post of an officer officiating in a higher grade or post, or the ground that he is considered; after trial, to be unsuitable for such higher grade or post or on administrative grounds unconnected with his conduct.

(vi) reversion to the previous grade or post of an officer appointed on probation to another grade or post during or at the end of the period of probation, in accordance with the terms of his appointment or rules, or orders governing such probation.

(vii) reversion of an officer on deputation to his parent organization.

(viii) termination of service of an officer.

(a) appointed in a temporary capacity otherwise than under a contract a agreement on the expiration of the period for which he was appointed, or earlier in accordance with the terms of his appointment.

(b) appointed under a contract or agreement in accordance with the terms of such contract or agreement and

(c) as part of retrenchment;

Provided that where it is proposed to impose any of the minor penalties specified in sub-clause (1) to (iii) of clause 1 of this Regulation, the officer concerned shall be informed in writing of the imputations of lapses against him and given an opportunity to submit his written statement of defence within a specified period not exceeding 15 days or such extended period as may be granted by the Competent Authority and the defence statement if any submitted by the officer shall be taken into consideration by Provided further that no order imposing any of the major penalties specified above shall be made except by an order in writing signed by the Competent Authority and no such order shall be passed without the charge or charges being formulated in writing and given to the officer and enquiry held so that he shall have reasonable opportunity to answer the charge or charges and defend himself;

Provided also that an enquiry need not be held if;

(i) the misconduct in such case even if proved, the bank does not intend to impose the punishment of removal or dismissal; and

(ii) the bank has issued a show cause notice to the officer advising him of the misconduct and the punishment for which he may be liable for such misconduct; and

(iii) the officer makes a voluntary admission of his guilt in his reply to the aforesaid show cause notice.

Repeal and Savings

(i) Every rule, regulations, bye-law, or any provision in any agreement or a resolution corresponding to any of the regulations herein contained and in force immediately before the commencement of this regulations and applicable to officers and employees is hereby repealed.

(ii) Notwithstanding such repeal, any order made or action taken under the provisions so repealed shall be deemed to have been made or taken under the provisions of this regulations.

Regulation 22 of the Regulation, 2001 provides that an officer shall not absent himself from his duties without having obtained the permission of the Competent Authority, nor shall be absent himself in case of sickness or accident without submitting proper medical certificate. Clause (ii) prescribes that an officer, who absents himself from duty without leave or overstays his leave, shall not be entitled to draw any pay and allowances for the period of such absence or overstayal, and shall be liable to such disciplinary measure as the Competent Authority may impose. Proviso to Regulation 22 deals with the power of the competent authority to condone the absence or overstayal.

In the case on hand, the petitioner remained absent himself from duty without proper sanction and, as such, he will not be entitled to pay and allowances for the period of his absence or overstayal, but that cannot be a ground for removal from the service. If the competent authority decides to impose penalty for such action, Regulation 38 would come into force.

Regulation 38 of the Regulation, 2001 deals with penalties. Clause (1) of Regulation 38 deals with penalties on Officers. ''Removal from service or dismissal'' come within the definition of major penalty'' under clause 1 (b) of Regulation 38. Second proviso to Regulation 38 mandates that no order imposing any of the major penalties specified above shall be made except by an order in writing signed by the Competent Authority and no such order shall be passed without the charge or charges being formulated in writing and given to the officer and enquiry held so that he shall have reasonable opportunity to answer the charge or charges and defend himself. Thus, before imposition of major penalty of removal from service, the competent authority has to frame charge or charges and thereafter, enquiry has to be held affording reasonable opportunity to the officer to defence himself.

Admittedly, in the case on hand, no such procedure as laid down under the Regulation, 2001 has been followed. The petitioner, on the ground of absenting himself without permission, was removed from the service on the basis of a simpliciter notice. Thus, the impugned order of removal from service is contrary to the Regulations, 2001.

Reliance of Shri Verma, learned senior counsel appearing for the respondent Bank on a circular dated 20.02.1989 (Annexure-R/2), which deals with unauthorized absence an officer/employee, is of no relevance, as that was a circular, seeking information from all the Managers in regard to unauthorized absence of the officers and employee. Even otherwise, all the circulars, instructions, service rules and regulations, which were in consistent with the provisions of Regulation, 2001 before the said regulations was notified, were repealed under the provisions of Regulation 73 of the Regulations, 2001. Even otherwise, reliance of the above stated circular is without any basis and the same is accordingly rejected.

In Delhi Transport Corporation (supra), a constitution bench of the Supreme Court, by majority, held that the Rule of Law which permeates our Constitution demands that it has to be observed both substantially and procedurally. Rule of law posits that the power is to be exercised in a manner which is just, fair and reasonable and not in an unreasonable, capricious or arbitrary manner leaving room for discrimination. Further, the ''audi alteram partem'' rule which is essence, enforces the equality clause in Article 14 of the Constitution is applicable not only to quasi judicial orders but to administrative orders also, which effects prejudicially the person concerned.

In Major Singh (supra), the Supreme Court relying on the decision rendered in State of Haryana and another Vs. Jagdish Chander, observed that the findings of habitual absence and indiscipline necessarily cast a stigma on the career of the delinquent.

This Court in Roshan Prasad Sidar (supra) observed as under:

It is well settled principle of law that if any order visits with civil consequences, the same is vitiated, if passed without affording an opportunity of hearing to the employee (s). (See: Shrawan Kumar Jha and others v. State of Bihar and other (AIR 1991 SC 310), D.K. Yadav Vs. J.M.A. Industries Ltd., , Basudeo Tiwary Vs. Sido Kanhu University and Others, , Canara Bank and Others Vs. Shri Debasis Das and Others, , Viveka Nand Sethi Vs. Chairman, J and K Bank Ltd. and Others, , Mohd. Sartaj and Another Vs. State of U.P. and Others, ) Inderpreet Singh Kahlon and Others Vs. State of Punjab and Others, Ashok Kumar Sonkar Vs. Union of India (UOI) and Others, , State of Manipur and Others Vs. Y. Token Singh and Others, , Jaswantsingh Pratapsingh Jadeja Vs. Rajkot Municipal Corporation and Another, Nehru Yuva Kendra Sangathan Vs. Mehbub Alam Laskar, ) and State of Punjab and Others Vs. Constable Avtar Singh (dead) through LRs.,

The Supreme Court in Anil Gilurker Vs. Bilaspur Raipur Kshetria Gramin Bank and Another, observed as under:

This position of law has been reiterated in the recent case of Union of India & Ors. v. Gyan Chand Chattar (supra) and in Para 35 of the judgment as reported in the SCC, this Court has observed that the law can be summarized that an enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice and the charges should be specific, definite and giving details of the incident which formed the basis of charges and no enquiry can be sustained on vague charges.

Applying the well settle principles of law to the facts of the present case and for the reasons stated hereinabove, the present orders of cancellation of appointment and rejection on appeal (Annexures-P/1 & P/2) suffer from inherent defects, as the same are not being passed in accordance with the procedure laid down in the Regulation, 2001. Thus, the orders dated 16.04.2005 (Annexure-P/1) and 26.12.2007 (Annexure-P/2) are liable to be and are hereby quashed. Consequently, the respondents are directed to reinstate the petitioner in service.

As far as the prayer for grant of back wages is concerned, having regard to the above stated facts, further considering the contention of the learned counsel that the petitioner after joining the new place of posting within 3 days came back to the original place and remained absent from the duties without permission and particularly considering the fact that the money of the respondent Bank belongs to the public, the total back wages cannot be paid to the petitioner, who had not done any work for a long period. However, in the interest of justice, it is directed that the petitioner should be paid a compensation of Rs. 70,000/- in lieu of his claim for arrears of salary for the period he was not permitted to join the service till he is reinstated in service.

As an upshot, the writ petition is allowed to extent indicated above. There shall be no order as to costs.