Andhra HC (Pre-Telangana)
S. Krishna Murthy vs Indian Overseas Bank, Madras And Others on 25 July, 1997
Equivalent citations: 1999(2)ALD154
Author: V. Rajagopala Reddy
Bench: V. Rajagopala Reddy
ORDER
1. In the instant writ petition the petitioner challenges the action of the 2nd respondent in issuing charge-sheet dated 17-10-1995 and appointing the 3rd respondent as the enquiry officer.
2. The facts in brief are that the petitioner is a Scale-11 officer in Indian Overseas Bank at Vijayawada. While working at Vijayawada, he was transferred on 15-7-1994 to Palna branch in the erstwhile Calcutta Zone. He was relieved at Vijayawada on 15-10-5994. The petitioner, however, without joining at Patna, remained absent unauthorisedly. He applied for medical leave on the same day enclosing medical certificate. Though leave has not been sanctioned, as sought for, he had been extending the leave from time to time and on 9-5-1995 he was informed that the leave was declined to him and his period of absence was treated as unauthorised absence. Since he did not report to duty, he was issued the charge-sheet dated 7-10-1995, alleging misconduct within the scope of Indian Overseas Bank Officer Employees' (Conduct) Regulations, 1976, (for short 'the Conduct Regulations'), and the pelitioner was asked to submit his explanation. However, the petitioner has not submitted any explanation to the charge-sheet. In its proceedings dated 3-1-1996, the respondent-Bank appointed an enquiry officer and the petitioner was directed to cooperate wilh him to complete the enquiry at the earliest possible. The petitioner was asked to appear before the bank panel doctor. The Bank panel doctor examined the petitioner and submitted a report dated 28-2-1996. In the said report the doctor has stated, inter alia, that "after careful clinical evaluation, after going through (he reports submitted by the officer, I am of the opinion that Mr. S. Krishna Murthy enjoys good health except for his chronic diabetes which is under control and which do not require any special medical facility at Hyderabad." However, on 11-3-1996, the petitioner submitted a representation to the 2nd respondent stating that he was awaifing the reply from the controlling authority in regard to sanction of sick leave applied by him. The 3rd respondent fixed the date of enquiry on 22-4-1996 and the petitioner was asked to appear before the enquiry officer on that day. The petitioner requested the enquiry officer to postpone the enquiry on grounds of illness. Thereafter, the petitioner, finding that the enquiry may not be postponed and the enquiry officer was more eager to go ahead with the enquiry in his absence, has come forward with this writ petition questioning the validity of the charge-sheet and the appointment of the Enquiry Officer.
3. Counter affidavit has been filed on behalf of the respondents, which reveals how the petitioner has been working in the organisation, since the day he joined in the bank as an Agricultural Officer in 1977, and the details of the same are germane for disposing of this writ petition. The petitioner while working as Agricultural Officer was transferred from Nalgonda branch to Veepanagadla branch as Manager in 1983, where he joined on 29-3-1984. He worked as Manager only for two days and thereafter remained absent dislocating the work of the Branch. He remained absent for 512 days, out of which 378 days were treated as leave on loss of pay. The petitioner's unauthorised absence caused dislocation in the business of the Branch and also caused serious problems to the administration. He was charge-sheeted for his above misconduct on 13-3-1985. Again he was charge-sheeted for another misconduct on 14-5-1988 and for the latter misconduct he was awarded punishment of censure by the Disciplinary Authority. During 1991, he was transferred to Regional Office, Vijayawada, on promotion to Scale-II. He worked at Vijayawada for 14 months, out of which he was on leave on loss of pay for 7 months 16 days. It is averred that the petitioner was habitually remained absent whenever he was transferred and that he did not move out of Andhra Pradesh, even though he was posted outside A.P. and was liable for transfer to anywhere in India. Coming to the present case, he was transferred to Patna on 15-7-1994, as already stated, and relieved on 15-10-1994 at Vijayawada. From that day onwards he remained absent unauthorisedly till date. Hence he was charge-sheeted as stated supra for his unauthorised absence. But without participating in the enquiry he was dragging on the enquiry. The petitioner exhausted all his leave, except 1-1/2 days of privilege leave and 4 days of sick leave and yet he applied for leave on one ground or the other. Even after filing the instant writ petition, the petitioner did not attend to duty till now, absenting himself from 15-10-1994 without sanction of any leave. The bank's panel doctor examined him and gave a report stating that the petitioner was enjoying good health except for his chronic diabetes, which was under control. He failed to submit his explanation and also appear before the Enquiry Officer. All the necessary documents including the medical report, would be provided to him if the petitioner appears before the Enquiry Officer.
4. Learned Counsel for the petitioner raised two questions before me: (i) The charges are vague and are liable to be quashed on this ground alone; and (ii) The allegations levelled in the charge-sheet were not enumerated as misconduct in the Conduct Regulations to initiate any disciplinary action.
5. Learned Counsel for the respondents, however, contends mat the petitioner was habitual absentee. He has been absenting himself without sanction of leave since 1983, which is evident from the facts stated in the counter affidavit. He was only interested in dragging on the enquiry and continuing to be absent unauthorisedly causing serious problems to the administration of the bank, disobeying the transfer orders and also causing indiscipline among the employees. Misconduct is enumerated in the Conduct Regulations and that the charge-sheet cannot be questioned at this stage on any ground, without participating in the enquiry. This Court will not scrutinise the charge-sheet at this stage.
6. The petitioner filed reply-affidavit denying his absence from duty for 7 months and 16 days when he was transferred to Vijayawada and that he never disobeyed the orders of transfer. Due to calamity in his family, during which six of his family members died in a road accident, he could not attend the bank and he had to apply for leave.
7. There appears to be, prima facie, no bona fides in the petitioner approaching this Court by way of invoking Article 226 of the Constitution. It must be remembered that the jurisdiction of this Court under Article 226 of the Constitution is purely a discretionary remedy, which will not be exercised if the Court is not satisfied about the genuineness of the grievance of the petitioner. From the conspectus of the facts in the case it is clear that the petitioner has been unauthorisedly absenting for quite a long period for whatever reason and the Management was not happy with his conduct and has been facing serious problems in the administration because of his conduct. Though the petitioner was transferred to Patna and was relieved on 15-10-1994 at Vijayawada, the petitioner had applied for leave on the grounds of sickness and has been extending his leave on grounds of illness from time to time till now. Admittedly, no part of his leave was sanctioned. The present charge-sheet was issued on the ground of unauthorised absence and for disobeying the orders of superiors. A perusal of the Bank's panel doctor's report clearly indicates that the petitioner was having good health except for his chronic diabetes, which was under control. At this stage I do not propose to make any comment upon the justification of the petitioner in not attending to his duties on the ground of sickness. The petitioner, having received the charge-sheet made a representation dated 21-12-1995, stating that he was not in a position to submit his explanation to the charge-sheet since no reasons were given for rejecting his leave applications. On 3-1-1996, finding that the petitioner had not filed any explanation, an Enquiry Officer was appointed to conduct the enquiry and the petitioner was asked to cooperate. However, by letters dated 24-1-1996 and 11-3-1996, the petitioner repeated his earlier request. On 11-4-1996, the petitioner requested the 3rd respondent-Enquiry Officer, to postpone the enquiry, on the ground that no reasons were disclosed for not sanctioning leave to the petitioner. It is, therefore, clear that at no point of time before filing the writ petition, the petitioner had made a grievance of vagueness of the charges or non-enumeration of the misconduct in the Conduct Regulations. For the first time the ground of non-enumeration of misconduct is taken in the writ petition.
8. The charge-sheet was issued alleging that the petitioner committed misconduct within the scope of Regulations 3(1), 3(2), 3(3) and 13(1) read with 24 of the Conduct Regulations. Regulation 24 of the Conduct Regulations describes the acts of misconduct as any breach of any of the provisions of the Conduct Regulations. It should be deemed to constitute misconduct punishable under the Indian Overseas Bank Officer Employees' Discipline & Appeal Regulations, 1976 (for short 'the Discipline Regulations'). Regulation 4 of the Discipline Regulations prescribes penalty for acts of misconduct or for any other good and sufficient reason. Regulations 5, 6 & 7 of the Discipline Regulations prescribe the procedure for disciplinary proceedings and Regulation 6(10)(a) of the Discipline Regulations specifically provides that the Inquiring Authority, on the petitioner appearing before him, furnish list of documents and list of witnesses by whom the articles of charges are proposed to be proved and the Inquiring Authority may provide opportunity for inspection of documents, submit list of documents and witnesses that the employee wants to examine and also supply any other document applied for by the employee, etc. Regulation 3 of the Conduct Regulations stipulates that every officer shall discharge his duties with utmost integrity, honesty, devotion and diligence and do nothing which is unbecoming of a bank officer. He shall maintain good conduct and discipline. Absence from duty is described in Regulation 13 of the Conduct Regulations, which, inter alia, states that no officer shall absent himself from his duty or leave the station without having first obtained the permission of the competent authority. Only in cases of unavoidable circumstances, when availing of prior permission was not possible, such permission may be obtained later. It is also clearly stated that no officer shall absent himself in case of sickness or accident without submitting a proper medical certificate. Provided that in the case of sickness of casual nature, the production of medical certificate may be dispensed with.
9. A reading of the above regulations abandontly clear that Regulations 3 and 13 read with Regulation 24 of the Conduct Regulations enumerate the misconduct of an employee. Hence, the contention that the Conduct Regulations do not enumerate instances of misconduct is wholly without substance. As stated supra, the petitioner did not make a grievance about the non-enumeration of misconduct at all at the time of issue of charge-sheet or thereafter.
10. Secondly, the contention regarding the vagueness of charges, was not taken in the writ petition and it was urged only at the time of arguments by the learned Counsel for the petitioner. It is submitted that under Regulation 13(ii) of Conduct Regulations, leave on medical ground should be applied by submitting a proper medical certificate. Since the petitioner submitted medical certificate whenever leave application was made, it is urged that no misconduct can be attributed therefrom. It should be noted that Regulation 13(i) of the Conduct Regulations, which provides the procedure for absence from duty clearly prescribes that a prior permission should be obtained from the competent authority before an employee absents himself from duty. Therefore, prior permission is necessary. The allegations in the charge-sheet among others, were that the petitioner has not obtained the prior permission before absenting himself oti the ground of illness and that he did not report for duly at the place of posting on transfer. However, it is open to the petitioner to salisfy the charge that such a permission could not be obtained in unavoidable circumstances and that he could not, for good reasons, report for duty and that matter has to be inquired into in pursuance of the charge-sheet. Hence, it cannot be said that the charge was vague and it is not possible for this Court to quash the charge-sheet on this ground, at this stage.
11. In Shri Rasiklal Vaghajibhai Patel v. Ahmedabad Municipal Corporation, 1985 (I) LLJ 527, it is true that the Apex Court found fault with the High Court for having held that "even if the allegation of misconduct does not constitute misconduct amongst those enumerated in the relevant service regulations yet the employer can attribute what would otherwise per se be a misconduct though not enumerated and punish him for the same." The Apex Court, however, held that :
"It is necessary for the employer to prescribe what would be the misconduct so that the workman/employee knows the pitfall he should guard against. If after undergoing the elaborate exercise of enumerating misconduct, it is left to the unbridled discretion of the employer to dub any conduct as misconduct, the workman will be an tenterhooks and he will be punished by ex post facto determination by the employer. It is a well settled cannon of penal jurisprudence, removal or dismissal from service on account of the misconduct constitutes penalty in law that the workman sought to be charged for misconduct must have adequate advance notice of what action or what conduct would constitute misconduct."
This decision is not applicable to the facts of the present case. In the instant case, as stated supra, the instances of misconduct have been clearly enumerated in the Conduct Regulations. Again the decision in D. Selvaraj v. Madras Metropolitan Development Authority, 1992(1) LLJ 734, is an authority for the above proposition that misconduct should have been enumerated in the Regulations or Standing Orders prior to an employee is proceeded against for such a misconduct, which has been considered in Rasiklal's case (supra). In M Krishnam Raju V. The Electronics Corporation of India, 1995 (1)ALD 478, it was held that "When the regulations state that absence without cause is a misconduct, it implies an enquiry into the question whether there was an acceptable cause for the absence. If the employee is able to establish an acceptable cause for the absence, then the fact whether there is leave to his credit or not, will be irrelevant. Even if he has no earned leave to his credit, the leave rules provide for sanctioning extraordinary leave without pay and such leave cannot be unreasonably refused."
This decision does not help the petitioner. The imputation against the petitioner is that he absented himself without obtaining prior permission and that even after declining leave he remained absent and therefore, his absence was unauthorised as required under Regulation 13(i) and (ii), among other instances of misconduct in Regulation 3 read with Regulation 24 of the Conduct Regulations. These matters of whether the petitioner was right in applying for leave and committed any misconduct on this ground have to be gone into only in the inquiry.
12. In the decision in Union of India v. Ashok Kacker, 1995 Supp. (1) SCC 180, cited by the learned Counsel for the respondents, the respondent therein did not submit his reply to the charge-sheet, but rushed to the Central Administrative Tribunal. The Tribunal entertained the respondent's application and quashed the charge-sheet. It has been held that the respondent had full opportunity to reply to the charge-sheet and to raise all the points available to him and that was not the stage at which the Tribunal shall entertain the application to quash the charge-sheet. It was held that the appropriate course for the respondent to adopt was to file his reply to the charge-sheet and invite the decision of the disciplinary authority thereon.
13. Again in Managing Director, Madras Metropolitan Water Supply and Sewerage Board v. R. Rajan, , cited by the learned Counsel for the respondent, during disciplinary proceedings, after receipt of the enquiry officer's report, notices to the respondents calling upon them to submit their explanations were issued. At that stage, the respondents therein approached the Madras High Court by way of writ petitions. The Apex Court held that no interference was called at an interlocutory stage of disciplinary proceedings.
14. In view of the above, the contentions of the petitioner are not acceptable.
15. The grievance of the petitioner that the panel doctor's report and other documents were not furnished to him, will be amply met by the bank, had the petitioner applied before the Enquiry Officer. Without doing so, he rushed to this Court on wholly untenable grounds. In the circumstances, I do not find any merit in the writ petition. The writ petition is accordingly dismissed. In the circumstances no costs.
16. The 1st respondent is directed to roceed with the enquiry as expeditiously as possible and complete the same within 3 months from the date of receipt of a copy of this order, uninfluenced by any of the observations made by me, which may be only in passing and will have no bearing on the subject matter of the enquiry. The petitioner is directed to participate in the enquiry.