Delhi High Court
Rahul Butalia vs State Bank Of India on 24 January, 1995
Equivalent citations: 1995IIAD(DELHI)978, 58(1995)DLT762, 1995LABLC866, (1995)IILLJ242DEL
JUDGMENT Anil Dev Singh, J.
1. This is a writ petition whereby the petitioner challenges the order dated May 22, 1990 of the Chief General Manager of the first respondent whereby the petitioner was deemed to have voluntarily abandoned and resigned from the service of the bank. The brief facts giving rise to this petition are as follows :
2. The petitioner was appointed as a probationary officer in the respondent bank on September 10, 1975. He was confirmed in their Officers grade w.e.f. September 10, 1977. The petitioner worked in the bank in various capacities, namely, as accountant in the Regional Stationery Department at Patna, Officer-in-Charge Foreign Exchange in Chandni Chowk Branch, Delhi, Field Officer, Overseas Branch, Parliament Street, New Delhi, Manager at Asian Games Village Branch and Manager, Rajpur Road Branch, Dehradun. In January 1988 the petitioner was selected for Commercial and Institutional Project and was transferred to Central Office Bombay. While at Bombay the petitioner availed of leave from August 16, 1989 to September 2, 1989 and from September 3, 1989 to October 5, 1989. It is alleged that subsequently the petitioner remained absent from duty unauthorisedly for various spells. On February 28, 1990 the petitioner was transferred from Central Office Bombay to Personnel Department New Delhi. The petitioner's case is that he joined duty on March 2, 1990. However, the respondents have denied the fact of the petitioner reporting for duty on the said date. It is their case that up to March 9, 1990 the petitioner was availing joining time. There is again an area of dispute with regard to the petitioner applying for 22 days leave from March 10, 1990 to March 31, 1990. While the petitioner says that he applied for leave, respondent denies it. However, it is undisputed that the petitioner went aboard on March 5, 1990, without any leave being sanctioned in writing in his favor.
3. The respondent bank by its telegram dated March 8, 1990 to the petitioner required him to be present on expiry of the joining time. He was also warned that if he still remained absent he shall be considered to be on an unauthorised leave. On March 31, 1990 the respondent bank again wrote to the petitioner pointing out that he was absent from duty unauthorisedly since March 9, 1990. He was asked to report for duty within three days of the receipt of the this communication and was also required to explain the reasons for his absence. Pursuant to this letter, the petitioner sent a telegram (Annexure E to the petition) to the respondent stating that he was unable to attend duty due to illness and would be sending a detailed letter Along with medical certificate in this regard. Besides, the petitioner in the said telegram requested for grant of medical leave to him. It appears that the petitioner did not join duly with the result, that the respondent by letter dated April 18, 1990 gain asked the petitioner to report for duty within 3 days and explain the reasons for his absence failing which it will be presumed that he had voluntarily abandoned duty or resigned from service. This letter seems to have been received at Delhi by the mother of the petitioner, who wrote to the bank on April 24, 1990 (Annexure E to the writ petition) informing the latter that during his stay abroad the petitioner had fallen ill and had not voluntarily abandoned the service. Since the petitioner did not report for duty as directed order dated May 22, 1990 was passed by the Chief Manager whereby the petitioner was deemed to have voluntarily abandoned his service and resigned there from with effect from March 9, 1990. The petitioner was further required to pay three months emoluments in lieu of the notice. It is this order which has been impugned by the petitioner in the present writ petition.
4. Mr. Raj Birbal, learned senior counsel appearing for the petitioner submitted that the order was illegal as the same was passed in violation of the State Bank of India (Supervising Staff) Services Rules, 1975 (for short "Rules"). Besides the procedure adopted by the respondent for terminating the services of the petitioner was violative of the principles of natural justice. He also submitted that the petitioner was victim of machinations of the officials of the respondent bank, who were inimically disposed towards him. It was further contended that the petitioner stated getting a feeling some-time in September 1988 that the work in Commercial and Institutional Project was not being conducted fairly and there was gross violation of the procedure and practice in the purchase of the computers. According to the learned counsel the petitioner expressed his views in writing which gave umbrage to certain officials and it is because of the mala fides of these officials that the impugned order was passed against the petitioner. He also argued that the impugned order was actually an order terminating his services though disguised and styled as voluntary abandonment or resignation from service by the petitioner.
5. Mr. Altaf Ahmed, Additional Solicitor General on the other hand submitted that the petitioner's services were not terminated. In fact the petitioner forfeited his right to serve in the bank under Rule 92 of the Rules because of his unauthorised absence from duty. He also discounted the theory that the petitioner had to suffer for the mala fides of certain officials. He urged that according to Rule 92 of the Rules an employee who overstays his leave or whose absence is without authority is liable to forfeit his appointment. He also canvassed that the procedure followed before passing the impugned order was in accordance with the principles of natural justice as two notices were given to the petitioner before passing of the final order.
6. I have considered the submissions of the learned counsel for the parties and I am of the opinion that the procedure followed in passing the impugned order is not in conformity with the principles of natural justice and the service rules.
7. Rule 40 which falls in Chapter 6 of the Rules, relating to conduct states that no employee shall absent himself from duty without having first obtained the permission of the outthought empowered to sanction leave. Rule 48 makes every breach of the provisions of the Rules by an employee as constituting misconduct punishable under Rule 49. Therefore undoubtedly any absence from duty without obtaining leave would be misconduct. For taking action against an employee for his misconduct, a detailed procedure is required to be followed as per Section 2 of Chapter 6 of the Rules. The section, as the heading indicates, deals with 'Discipline and Appeal'. According to the procedure laid down therein adequate opportunity is required to be given to an employee, against whom there is an allegation of misconduct to defend himself. The authority concerned has to first frame a charge against the employee and then hold a detailed enquiry, herein the employee is given a chance to produce evidence and examine and cross-examine witnesses.
8. Explanation to rule 49 lists certain behavior which may not amount to misconduct. Significantly unauthorised absence from duty does not figure in this explanation. Therefore it is clear that the unauthorised absence in a misconduct within the meaning of Rule 48. Rule 92 empowers the authority to take action against an employee who oversights leave. It permits the authority to take action either under Rule 49 or to forfeit the appointment of the employs. Forfeiture is undoubtedly a penalty and procedure to impose such a penalty must conform to minimum requirement of fair play and procedural justice. In the present case, the respondent by its letter dated March 31, 1990 called upon the petitioner to report for duty. To this the petitioner replied by a telegram saying that he was unwell and would join as soon as he was physically fit. Thereafter the respondent again issued a letter dated April 18, 1990 without referring to the telegram of the petitioner. In this letter again the petitioner was called upon to join duty within three days and also to furnish his explanation within the same period. To this letter, the mother of the petitioner sent a reply wherein it was clearly stated that the petitioner had gone abroad on a short visit where he had fallen ill. Without giving any further opportunity to the petitioner the respondent on May 22, 1990 passed the impugned order on the ground that the former had voluntarily resigned and abandoned his service. It is not denied that when the letter dated April 18, 1990 was sent to the petitioner, the respondent was aware that the petitioner was abroad and still only three days were given to him to reply to the same. It was well high impossible for the petitioner to have furnished his explanation within three days from Italy where he had gone. No worthwhile opportunity was given to the petitioner to plead his case.
9. The learned Additional Solicitor General contended that the impugned order was passed by the respondent under Rule 92, though it did not specifically say so. Be that as it may. Rule 92 permits the authority to forfeit the service of an employee in case he remains absent. A conscious decision has to be taken by the authority in regard to the forfeiture of appointment to an employee. This rule does not speak of any deemed voluntary abandonment of or resignation from service, on account of absence of the employee nor does it envisage an employee losing his service automatically for remaining absent without leave. Before the services of an employee are determined for remaining absent, whether it is by way of termination, forfeiture, deemed voluntary abandonment of or resignation from service, he must be given proper opportunity to explain the reasons for his absence. Besides he must be provided with an opportunity to adduce evidence in support of his case Even when Rule 49 is not invoked by the Bank and action is sought to be taken under Rule 92 of the rules such an opportunity is required to be given in accordance with the principles of natural justice.
10. Learned counsel for the petitioner referred to a number of authorities in support of the proposition that even where service rules make a provision for deemed voluntary abandonment or resignation from service, an opportunity of proper hearing must be afforded to an employee before the power under the rules can be invoked. It is not necessary to refer to those authorities as the proposition canvassed by the learned counsel is well settled. The arguments of the Additional Solicitor General that the petitioner was given adequate opportunity by means of the aforesaid letters dated March 31, 1990 and April 18, 1990 to have his say in the matter, which he described as notices, and that the power was exercised in accordance with Circular No. PER/239 of 1986 which talks of abandonment of and deemed resignation from service are not well founded. In the first place a circular cannot override the Service Rules. Rule 92 speaks of forfeiture of appointment and not of deemed resignation or abandonment of service. The aforesaid notices/letters issued to the petitioner did not even speak of forfeiture of appointment. They talked of deemed voluntary resignation or abandoned of service. Thus these letters/notices fell outside the scope of Rule 92. The respondent bank was proceeding on the premise that absentation from duty would amount to abandonment of or resignation from service. Even if the respondent was proceeding on this footing, and assuming the rule permitted this course of action to be adopted, it was still required to give adequate opportunity to the petitioner to adduce evidence to show that he did not have any intention to abandon or relinquish his services by remaining absent without leave. There cannot be an automatics termination or abandonment of service. Before terminating the services of the petitioner the respondent bank was required to hold an enquiry. Abandonment or relinquishment of or deemed resignation from service are questions of intention and such intention cannot be attributed to an employee unless there is adequate evidence in that behalf. To constitute abandonment of service and the like, there must be total giving up of duties so as to indicate an intention not to resume the same. In the present case, there is no evidence to indicate that the petitioner had totally given up his duties and had no intention to join the same. Rather the aforesaid telegram of the petitioner and his mother's letter dated April 24, 1990 (Annexure E to the writ petition) prima facie show that the petitioner had every intention to resume his duties.
11. Viewed from any angle the impugned order is an order terminating the service of the petitioner and therefore the respondents should have followed a procedure in keeping with the principles of natural justice. Normally the petitioner would have been entitled to salary from the date his service was dispensed with but having regard to the peculiar facts and circumstances of the case. I am not inclined to grant that relief to him. It is not disputed that the petitioner absented himself without leave being sanctioned in writing. It was merely stated by the petitioner that an oral sanction as given by the respondent to him to proceed on leave. This is merely an ipse dixit of the petitioner. He as an officer of the bank should have known that no employee can avail of privilege leave without obtaining written sanction from the authority concerned. From a perusal of the Rule it is clear that unless and until an application for leave is sanctioned, absence from duty is considered as unauthorised. The petitioner not only absented himself from duty but also left India without obtaining the necessary permission of his employer. Rule 40 of the Rules specifically ordains that an employee shall not absent himself without having first obtained the permission of the authority empowered to sanction leave.
12. Having regard to the above discussion, the rule is made absolute. The writ petition partly succeeds. The impugned order dated May 22, 1990 is hereby quashed. First respondent is directed to reinstate the petitioner in service. It will, however, be open to the respondent to initiate fresh enquiry against him for remaining absent from March 9, 1990 and to take action in accordance with law. The petitioner will also be entitled to continuity of service from the date of the impugned order but will not be entitled to any salary for the period of his absence till the date of passing of this order. In the circumstances of the case. There shall be no order as to costs.