Y P SARABHAI Vs. UNION BANK OF INDIA

JUDGEMENT

(1.) BY means of this writ petition filed under Article 226 of the Constitution of India, the petitioner seeks to impugn the order dated 4th September, 1998 passed by the Disciplinary Authority dismissing him from the service of the first respondent-bank and the order dated 16th February, 1998 passed by the Appellate Authority affirming the order of dismissal passed by the Disciplinary Authority.

(2.) THE petitioner joined Union Bank of India-first respondent (for short "the Bank) initially as a Security Officer in the Junior Management Cadre on 7th May, 1980. On 1st April, 1985 the petitioner was promoted as a Deputy Manager (Security ). Thereafter the petitioner was given an ad-hoc promotion in Middle Management Grade, Scale-III in the Zonal Office, Mumbai. By order dated 26-5-1997 the petitioner was transferred from Mumbai to Chennai. The said order of transfer was served upon the petitioner on 3-6-1997. According to the bank instead of carrying out the order of transfer, the petitioner remained absent from his duties. On 3-6-1997 the petitioner made representation for deferring his transfer order by one year on the ground of ill-health of his wife and his sons education. The petitioner simultaneously made an application for leave on the ground that he was unwell. By letter dated 17th June, 1997, the bank informed the petitioner that his request for deferment of transfer could not be granted and that he should report on duty on 23rd June, 1997 for being relieved. The petitioner did not report as directed and hence he was issued a memorandum dated 28th June, 1997 advising him to report for duty immediately and carry out transfer order to Chennai failing which disciplinary action would be initiated against him. However, the petitioner did not report for work and he made another representation on 16-7-1997 for extension of leave on the ground that he was suffering from Cervical Spondylises and Arthritis (Knees) and was undergoing treatment at Mumbai. The petitioners leave was not extended. On 1-8-1997 the petitioner filed Writ Petition No. 1261 of 1997 before this Court challenging his transfer from Mumbai to Chennai. The petitioner was issued the articles of charge on 24-9-1997. The charges levelled against the petitioner were : (i) Contravention of Regulation 13 of Union Bank of India Officer Employees (Conduct) Regulations, 1976; (For short Conduct Regulations, 1976); (ii) Failure to discharge his duties with devotion and diligence; and (iii) Acting in a manner unbecoming of a bank Officer. The petitioner upon receipt of the charge-sheet did not file reply initially but instead submitted a letter dated 10th October, 1997 to the effect that the matter of charge-sheet might not be proceeded with as against the order of the High Court rejecting his writ petition challenging the transfer order, he was going to file Special Leave Petition. Thereafter, on 21-11-1997 the petitioner submitted his statement of defence. The Enquiring Authority was appointed to enquire into the Articles of Charges levelled against the petitioner. The petitioner participated in the enquiry alongwith his assisting officer. After recording the evidence the Enquiring Authority submitted her report holding that the charges levelled against the petitioner were proved. The copy of the enquiry report was served upon the petitioner and he was directed to have his say. The petitioner by his letter dated 6-4-1988 submitted his comments. The Disciplinary Authority, thereafter, by order dated 4-9-1998 imposed upon petitioner major penalty of dismissal from service. Aggrieved thereby, the petitioner preferred appeal before the Appellate Authority. The Appellate Authority gave personal hearing to the petitioner on 28-1-1999 and by order dated 16-2-1999 rejected the petitioners appeal. The order of Disciplinary Authority dismissing the petitioner from service and the order of the Appellate Authority confirming the said order are under challenge in this writ petition.

(3.) MR. Cama, learned Senior Counsel appearing for the petitioner urged that punishment of dismissal is totally illegal and unsustainable being in contravention of the service Regulations applicable to the petitioner. The learned Senior Counsel submitted that the dismissal of the petitioner is on the basis of his misconduct for remaining absent from duty but it is well established from the material on record that during the period mentioned in the charge-sheet, he was on sick leave and he had also submitted the medical certificates. According to Mr. Cama the genuiness of the sickness of the petitioner could not have been doubted as there were medical certificates to that effect and if at all, the Bank suspected the genuineness of petitioners sickness or the certificates produced by him, as per the Circular No. 2311 dated 2nd June, 1981, the Bank ought to have directed the petitioner to appear before the medical practitioner of Banks choice for medical examination. Mr. Cama contended the allegations levelled against the petitioner cannot be said to constitute misconduct under Regulation 13 (2) of Conduct Regulations of 1976, read with Circular No. 2311 of 2nd June, 1981. Mr. Cama took us through the various medical certificates produced before the Enquiring Authority by the petitioner to demonstrate that much before the order of transfer dated 26-5-1997 the petitioner was suffering from various ailments including Cervical Spondylises and Arthritis (Knees) problem and he had taken treatment from various doctors and, therefore, no reasonable inference could be drawn that the petitioner remained absent from duty since 3rd June, 1997 to avoid his transfer from Mumbai to Chennai. The learned Senior Counsel for the petitioner strenuously urged that the petitioner was never on unauthorised leave or absence and the absence of the petitioner was due to sickness which is not a misconduct and petitioner could not be charged of insubordination or indiscipline. Mr. Cama also argued that after the copy of enquiry report was furnished to the petitioner, it was mandatorily required of the Disciplinary Authority to afford personal hearing to the petitioner and having not done that the order of punishment passed by Disciplinary Authority is vitiated being in utter disregard of the principles of natural justice. In this connection Mr. Cama relied upon the judgment of Apex Court in (Institute of Chartered Accountants of India v. L. K. Ratna and Ors.), A. I. R 1987 S. C. 71 The learned Senior Counsel also submitted that even the Appellate Authority did not give personal hearing to the petitioner and for want of proper personal hearing by Appellate Authority, the order passed by the Appellate Authority is also rendered illegal.