Y.P. Sarabhai
Vs. Union Bank of India & Anr [2006] Insc 332 (22 May 2006)
Dr.
Ar. Lakshmanan & Lokeshwar Singh Panta Dr. Ar. Lakshmanan, J.
We
have heard Mr. V. Sudeer, learned Counsel for the appellant and Mr. L. Nageswar
Rao, learned Senior Counsel assisted by Mr. O.P. Gaggar, Advocate for the
respondents.
The
appellant was appointed as a security officer of the respondent Bank in 1980
and was working in middle Management Cadre (Grade-III) as Manager. Security in
1998 when he was dismissed from the services of the respondent Bank for alleged
violation of Regulation 13 of the Union Bank of India Officer Employee (Conduct) Regulations, 1976. In the charge
sheet, it was alleged that he was not reporting for his duties since 3.6.1997.
It was further stated that the appellant's services were transferred to Chennai
but the appellant did not carry out his transfer orders to Chennai and was
remaining absent without sanction of leave. Regulation 13(1) requires that
"no officer/employee should absent himself in case of sickness or accident
without submitting a proper medical certificate". The Bank's Staff
Circular dated 2.6.1981 also provides that "the Management is not bound by
the certificate produced by the employee and may require him to appear before
the Medical Practitioner of Bank's choice for medical examination." The
Inquiring Authority came to the conclusion that though the appellant was
remaining absent on grounds of illness, the real reason was that he was
reluctant to carry out his transfer to Chennai.
The
Disciplinary Authority awarded the punishment of dismissal from the services of
the Bank concurring with the above observation of the Inquiring Authority. The
Disciplinary Authority further held the appellant guilty of the following
misconducts:
-
Contravention of
Regulation 13 of the Union Bank of India Officer Employees" (Conduct) Regulations, 1976
-
Failure to
discharge his duties with devotion and diligence
-
Acting in a
manner unbecoming of a Bank officer.
The
Appellate Authority in dismissing the appellant's appeal held:
-
that it is the
conduct of the petitioner "taking undue advantage of his normal sickness
to avoid transfer to the extent possible", which was "not
genuine".
-
that "his
sickness" was not such where he could "not attend his normal office
duties".
The
High Court held that the appellant was adamant in not carrying out the transfer
order and tried his best to avoid transfer until he finally failed upto this
Court in challenging his transfer from Mumbai to Chennai". The finding of
the High Court was challenged before us in this appeal on the ground that the
same is not based on evidence and is contrary to the opinion/recommendations of
the medical experts as regards to the petitioner's illness.
We
have perused the pleadings and the orders impugned in this appeal and also the annexures
filed along with the appeal and heared the lengthy arguments advanced by the
learned counsel appearing on either side.
We are
of the opinion that the appellant is not entitled to any relief in these
proceedings. The appellant remained absent from his duty for a very long time
i.e. from 3.6.1997 to 23.11.1997 without any reasonable cause and justification
inspite of the respondent's requests to join the duty and inspite of the
respondent's granting him further time to join the duty .
The
conduct of the appellant in remaining absent for such a long time shows that he
was bent upon to evade the transfer order in any possible manner. The grounds
of ailment were taken as a ruse to avoid transfer which is amply proved by the
conduct of the appellant, when he had unauthorisedly remained absent on the
ground that he was unable to attend the duty due to illness for such a long but
he was quite capable of attending the court proceedings on the various days and
was also capable of coming to Delhi to file a petition before this Court. The
concurrent finding of the enquiry is that he has been shifting stands because
initially on the very day of the service of the transfer order he gave a
representation mentioning illness of his wife and the studies of his son for
the purpose of deferment of the transfer to Chennai from Mumbai.
But in
the other representation to other Officer of the Bank, which he has produced to
the Bank, he has stated the reason of his illness as an excuse. Thus, the
conduct of the appellant in trotting up all these defenses show that he was
trying to avoid transfer to Chennai through all possible means. The reason for
deferment of transfer given by him before the High Court and this Court in the
writ petition and the appeal filed by him against the transfer order was a
simple ruse to avoid the transfer. It has been affirmed by the Court in that
proceeding that the transfer was done as per exigencies of the Bank. The
transfer of the appellant was effected to a large city namely Chennai which as
per his own admission has very good medical facilities which are comparable to
those in Mumbai.
The
service of specialist officers and for that matter all officers in the Bank are
transferable on all India basis and they are liable to the
posted anywhere in India subject to the personnel and
manpower requirement and exigencies of the Bank.
This
Court has repeatedly held that the factual finding of the Disciplinary
Authority after holding a detailed enquiry and after going through elaborate
evidence are not assailable in the courts unless the brech of pricniples of
natural justice or the violation of any rules or any material irregularity on
the face of record is alleged and shown. However, in this case the High Court
in the jurisdiction under Artilce 226 of the Constitution of India has again
gone into all aspects of the enquiry in detail and has come to the same factual
finding as the Disciplinary Authority and the Appellate Authority. Such
concurrent findings by three different Authorities including the High Court
should not be disturbed by this Court under Article 136 of the Constitution of
India. We, therefore, have no other option except to dismiss this appeal.
Accordingly, the appeal stands dismissed.
At the
time of argument, Mr. V. Sudeer, the learned counsel for the appellant invited
our attention to the affidavit of undertaking dated 27th July, 2002 filed by the appellant herein.
Inspite
of the order of dismissal, the learned counsel has requested this Court to take
a lenient view considering peculiar facts and circumstances of the case. The
learned counsel submitted that the appellant is ready to forgo the entire back
wages and shall join duty at the place where he is posted and that he be
reinstated in service. He also made an alternative plea that if for any reason
the Bank is not willing to consider his request for his reinstatement on
sympathetic grounds, the Bank may be advised to pay some lumpsum payment to the
appellant. The matter was heard on 19th May, 2006 for this purpose and
adjourned to ascertain the views of the Bank and is listed today the 22nd May, 2006. Mr. L.N. Rao, learned Senior
Counsel for the Bank reported that the Bank is not willing to reinstate the
appellant in service in view of deriliction of duty and seriousness of the
proved charges, but however is ready and willing to abide by any further
direction that may be issued in regard to the above proposal.
We
have considered the submissions made by both sides.
Irrespective
of order of dismissal of the appeal filed by the appellant, we feel that the
request fervently made by the Counsel for the appellant should be
sympathetically considered to meet the ends of justice. The appellant was
dismissed from service on 4.9.1998. He is without pay for all these years in
view of the order of dismissal. According to the appellant, his wife also died
of cancer. It is settled law that a person who is dismissed from service is
entitled to get only the provident fund but no gratuity. In the instant case, the
total amount of provident fund payable to the appellant comes to Rs.3,36,158/-
and gratuity comes to Rs.1,49,215/-. The appellant is liable to pay a sum of
Rs.2,60,228/- towards outstanding dues to the Bank for the various loans
availed by him from the Bank. Therefore, after deducting sum of Rs.2,60,228/-
from and out of the total amount of provident fund of Rs.3,36,158/-, the
balance comes to Rs.75,930/-. The appellant has now crossed 58 years of age and
getting a new job at this juncture is also not possible for him. Considering
the totalily of all the peculiar facts and circumstances of this case, we feel
that if we direct the Bank to pay a sum of Rs.1,50,000/-, which includes the
balance provident fund of Rs.75,930/- after adjusting the loan amount due to
the Bank, that would meet the ends of justice. We also make it clear that the
appellant will have no other claims against the Bank hereafter. In order to
give quietus to this long standing litigation, we direct the Bank to pay to the
appellant by Demand Draft a sum of Rs.1,50,000/- towards full and final
settlement of all claims between both the parties. If there is any discrepancy
with regard to the amount payable to the appellant by way of provident fund and
the loan amount, the appellant is at liberty to approach the Bank for any
clarification and if such a letter is received from the appellant, the Bank
shall consider the same and do the needful at the earliest.
The
appeal shall accordingly stand dismissed. There shall be no orders as to costs.
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