Full Judgment Text
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CASE NO.:
Appeal (civil) 2672 of 2003
PETITIONER:
Y.P. Sarabhai
RESPONDENT:
Union Bank of India & Anr.
DATE OF JUDGMENT: 22/05/2006
BENCH:
Dr. AR. Lakshmanan & Lokeshwar Singh Panta
JUDGMENT:
J U D G M E N T
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:
a) Contravention of Regulation 13 of the Union Bank of
India Officer Employees" (Conduct) Regulations, 1976
b) Failure to discharge his duties with devotion and diligence
c) Acting in a manner unbecoming of a Bank officer.
The Appellate Authority in dismissing the appellant’s appeal
held:
a) 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".
b) that "his sickness" was not such where he could "not
attend his normal office duties".
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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
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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.