Supreme Court - Daily Orders
Kundan Shrawan Humane vs The Chairman Cum Managing Director Dena ... on 30 October, 2018
Bench: Arun Mishra, Vineet Saran
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No.10815 OF 2018
(@ Special Leave Petition (C) No.8775 of 2018
KUNDAN SHRAWAN HUMANE Appellant(s)
VERSUS
CHAIRMAN CUM MANAGING DIRECTOR DENA BANK
AND ORS. Respondent(s)
O R D E R
1. Leave granted.
2. Heard.
3. The appellant has questioned the punishment imposed on him after holding the departmental enquiry by the respondent-Dena bank.
4. The appellant was appointed as Cashier-cum- clerk in the year 1989. The appellant is suffering from the congenital heart disease, ebstein’s anomaly of the tricuspid valve. He was under regular check up and treatment even at Government Medical College & Hospital at Nagpur. Certificate dated 13.2.2001 issued Signature Not Verified Digitally signed by by the Government Medical College & Hospital at Nagpur POOJA ARORA Date: 2018.11.15 17:26:36 IST Reason: has also been filed.
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5. The appellant was promoted as Officer Scale-I and was posted in the year 2006 at Mumbai. Due to his critical condition and heart disease, alongwith certificate of civil surgeon, he prayed for his transfer from Mumbai to Nagpur for proper and timely follow up and treatment.
6. Appellant was transferred to Regional office, Nashik on 15.7.2008. He was posted to Akola Branch within a week. He joined there on 23.7.2008. He remained posted there upto 30.04.2009. Thereafter, he was again transferred vide Order dated 30.04.2009 from Akola to Gondumri Branch. He was relieved on 11.5.2009 and reported on 13.5.2009. Thereafter he proceeded on leave. Considering his ill health, he could not perform duties any further. He then filed a representation dated 17.8.2009 for his transfer to Nagpur on medical grounds. In the representation, he pointed out that the branch was situated at a distance of 20 km. from Gondumri, daily up and down was not possible for him due to his heart ailment and ill health. It was also pointed out by him that he had been victimized by transfers as he made an effort to 3 prevent the corruption in the Bank done by the Branch Manager and he had informed in writing regarding the same. His harassment started thereafter and ultimately resulted in his transfer to Gondumri and from there to Nashik. He also pointed out various irregularities in the representation. However his representation was not considered. Appellant also filed writ petition before the High Court. Ultimately he had withdrawn the same since he was removed from the services.
7. The appellant was duly served with a Show cause notice dated 1.12.2009 for remaining absent. He has submitted a detailed explanation on 14.12.2009 and inter alia and pointed out his poor ill health condition and heart disease. Charge-sheet was issued on 1.1.2010 for remaining absent with effect from 14.5.2009 till 1.1.2010 and departmental enquiry was conducted resulting into order for removal passed on 27.7.2010.
8. The High Court in the first round set aside the order of removal. Vide order dated 14.2.2012 passed in WP No.4539/2011, the High Court directed the Bank 4 to hold fresh enquiry in accordance with law. Thereafter, fresh enquiry was held in which appellant participated. It was held on 2.5.2012, 7.5.2012 and 8.5.2012 wherein the appellant pointed out that his absence was not willful, it was due to his critical health condition. However, enquiry officer found the appellant guilty of misconduct and unauthorised absence and ultimately he was removed in exercise of power under Regulation 7(3) of the Dena Bank Officers Employees (Discipline and Appeal) Regulation, 1976.
9. Aggrieved by the order of removal he filed an appeal before the Appellate Authority which was dismissed vide order dated 5.11.2012. Thereafter, appellant filed a writ petition before the High Court. Aggrieved by its dismissal by the impugned order, the appeal has been preferred.
10. We have heard learned counsel for the parties at length and perused the charges and documents and the representation filed by the appellant. After hearing learned counsel for the parties, it is apparent that the appellant suffered with congenital heart disease of serious nature. He 5 submitted a representation pointing out his critical health condition that he could not undertake 20 kms up and down every day. Thus there was sufficient medical ground pointed out in the representation which ought to have been considered and decided. It was not so done. In the circumstances, there was some justification for his absence. No doubt he was absent for a substantial period of approximately seven months. However, considering the nature of ailment, punishment of dismissal from services was absolutely uncalled for. It is pertinent to point out that appellant had also pointed out in writing as to prevailing corruption. It appears that he might have been shifted within a span of one year for his aforesaid activity which health wise was not suitable for him. The unscheduled transfer orders that was passed considering the ailments suffered by the appellant could not be said to be appropriate and there may be ring of truth in the submission that by virtue of his pointing out the corruption going on in the bank, he had been victimized by transfer order to a remote place. Considering, in particular, the 6 medical condition of the appellant, transfer order could not be said to be justified.
11. It was pointed out by the learned counsel appearing for the appellant that the incumbent branch Manager against whom the appellant has lodged complaint in writing and reflected in his representation also is now incarcerated in jail for the same act of corruption protested by the appellant. This fact is not on record. Be that as it may. It appears, in the facts and circumstances of the case, that the action of the Bank of removal was extremely harsh and disproportionate, in particular, on consideration of the health condition and the nature of the ailment with which the appellant suffered. The order of removal was inhuman, absolutely bad in law and shocking to the conscience and thus we set aside the order of removal.
12. However, lest the impression be gathered that absentism is tolerable, in the facts of case, instead of prolonging matter by sending it to authorities, we deem it appropriate to substitute the punishment with one increment to be withheld for one 7 year. The Counsel for appellant, in addition, agreed to forego back wages too which we accept. However, appellant shall be reinstated within one month and shall be entitled to continuity in service and other benefits which would have accrued to him but for his removal except back wages. The appeal is allowed to aforesaid extent.
....................,J.
(ARUN MISHRA) ....................,J.
(VINEET SARAN)
NEW DELHI
OCTOBER 30, 2018
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ITEM NO.33 COURT NO.7 SECTION III
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition for Special Leave to Appeal No.8775 of 2018 KUNDAN SHRAWAN HUMANE Petitioner (s) VERSUS CHAIRMAN CUM MANAGING DIRECTOR DENA BANK & ORS. Respondent(s) Date : 30-10-2018 This appeal was called on for hearing today. CORAM :
HON'BLE MR. JUSTICE ARUN MISHRA HON'BLE MR. JUSTICE VINEET SARAN For Appellant(s) Mr. Kaushal Yadav, AOR Mr. Pramod Kumar, Adv.
Mr. Nandlal Kumar Mishra, Adv. Dr. Ajay Kumar, Adv.
Ms. Shweta Yadav, Adv.
Ms. Sunita Yadav, Adv.
Ms. Ankita Aggarwal, Adv.
For Respondent(s) Mr. Jagat Arora, Adv.
Mr. Rajat Arora, Adv.
Ms. Ritu Arora, Adv.
Mr. Anuvrat Sharma, AOR UPON hearing the counsel the Court made the following O R D E R Leave granted.
The appeal is allowed in terms of the signed order.
Pending application, if any, shall stand disposed of.
(POOJA ARORA) (JAGDISH CHANDER) COURT MASTER BRANCH OFFICER
(Signed order is placed on the file)