Madras High Court
P.Rajasekaran vs Indian Overseas Bank on 2 November, 2009
Author: V.Dhanapalan
Bench: V.Dhanapalan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 02.11.2009 CORAM : THE HONOURABLE MR. JUSTICE V.DHANAPALAN W.P.No.8896 OF 2000 P.Rajasekaran ... Petitioner vs. 1. Indian Overseas Bank, rep. by the Chairman & Managing Director, Mount Road, Chennai 600 002. 2. The Senior Regional Manager, Disciplinary Authority, Indian Overseas Bank, Regional Office, 40, Eighty Feet Road, Arignar Anna Nagar, Madurai 20. 3. V. Jebasingh ... Respondents Writ Petition filed under Article 226 of the Constitution of India praying for the issuance of a writ of certiorarified mandamus to call for the records pertaining to RO/IR/184/278/98-99 dated 31.03.1999 of the 2nd respondent including the enquiry report of the 3rd and 4th respondents dated 02.03.1999 and quash the same and consequently direct the 2nd respondent to reinstate the petitioner into service with all back benefits, promotions, etc. For Petitioner : Mr.P.Narayanamoorthy For Respondents : Mr.C.Ravichandran O R D E R
This writ petition is filed challenging the order of the 2nd respondent dated 31.03.1999 including the enquiry report of the 3rd and 4th respondents dated 02.03.1999 and for a consequential direction to the 2nd respondent to reinstate the petitioner into service with all back benefits, promotions, etc.
2. Brief facts leading to the filing of this case are, as under :
(a) The petitioner joined the services of the Indian Overseas Bank in June 1991 as Daftry/Messenger and worked in Appanthirupathy Branch; his service was confirmed in December 1991. In the deposit mobilisation, he canvassed Rs.40,000/- and Rs.2 lakhs and he was appreciated by the Bank for the same.
(b) According to the petitioner, his aged mother is suffering from a disease which needed operation in her head and she is unable to do anything independently and requires the help of a person and he had to assist her in her daily routine; moreover, he had to look after his nephew aged 12 years, as his brother an Indian Bank employee expired two years ago. That apart, the petitioner himself was suffering from Jaundice during December 1998. In such circumstances, the petitioner had to take leave on 19.12.1996, 03.05.1997, 23.10.1997 and on 30.12.1997, for which he was awarded a punishment of "stoppage of one increment without cumulative effect on 20.05.1998".
(c) The petitioner would further state that he was again charge sheeted; improper enquiry was conducted and a major punishment of dismissal was awarded for availing leave. According to the petitioner, he applied for leave and for extension of leave and also sent letters to the Bank. But, the Bank has treated his leave as leave on loss of pay, conducted improper enquiry and finally, dismissed him from service. He would also state that the 1st respondent refused to receive his appeal and hence, he did not prefer any appeal. Aggrieved by the order passed by the 2nd respondent, the petitioner is before this court.
3. In the counter affidavit filed on behalf of the respondents, it is stated thus :
(a) The petitioner joined the services of the Bank as a messenger on 27.06.1991 and was working at Appanthiruppathy Branch. The petitioner was on leave/unauthorised absence from April 1996 to February 1998 for 373 days. His absence was at regular intervals but not exceeding 90 days every time. For the said misconduct, the petitioner was charge sheeted and awarded with a punishment of "stoppage of one increment without cumulative effect", since he assured in writing that he would be punctual in future. The petitioner's leave record did not improve and he started absenting himself again from 06.10.1998 by submitting a leave letter for 15 days. Thereafter, he was extending his leave by submitting leave letter one after another. The petitioner was advised by the Regional Office, Madurai that his leave was declined and he had to report for duty immediately. But, the petitioner did not respond to the same. Hence, a charge sheet dated 21.11.1998 was issued.
(b) On 14.01.1999, the petitioner came to the Branch all of a sudden and signed the attendance register without submitting leave letter and medical certificates. Thereafter, the petitioner remained absent without any information to the Branch. Therefore, the petitioner was issued with an additional charge sheet dated 23.01.1999 for failing to report for duty in response to Regional Office letter dated 17.11.1998 and for failing to reply to the charge sheet under clause 17.7 (b) (c) (minor misconduct) and 17.5 (d), (e), (f) (Gross misconduct). An enquiry was conducted on 02.03.1999, wherein the petitioner admitted the charges unconditionally and the findings were submitted on 08.03.1999. In view of the findings, a show cause notice dated 15.03.1999 was issued to the petitioner as to why the punishment of 'dismissal without notice' should not be imposed on him, and finally an order dated 31.03.1999 was passed awarding the punishment of 'dismissal without notice'.
(c) According to the respondents, without exhausting the alternate remedy of filing an appeal as contemplated under the Bank's Regulation, the petitioner has filed the writ petition aggrieved by the order of dismissal dated 31.03.2009 passed by the 2nd respondent.
(d) With regard to the allegation that the 1st respondent refused to receive the appeal of the petitioner and hence no appeal was preferred, the respondents would state that the petitioner never filed any appeal against the order of dismissal dated 31.03.1999 and even in the typed set filed in support of the writ petition, the petitioner has not enclosed the copy of the alleged appeal said to have been filed before the 1st respondent.
(e) The respondents would also state that the petitioner received a copy of the enquiry proceedings on 02.03.1999 itself and the copy of the enquiry report was also sent. Thereafter, show cause notice dated 23.03.1999 was issued to him and in that show cause notice, it was specifically mentioned that personal hearing will be given on 26.03.1999 at 11.00 am. Before the enquiry office, the petitioner correctly admitted the charges wholly and unconditionally. In fact, after receipt of the show cause notice dated 15.03.1999, the petitioner submitted his notice of resignation from the Bank's service on 23.03.1999, wherein he had admitted that he was unable to continue in the present job due to lot of family problem which has caused irregularity in his attendance to the office and therefore he intended to resign from his job inevitably. Before the petitioner's notice of resignation could be considered by the competent authority, the 2nd respondent issued the order of dismissal without notice. Therefore, the competent authority declined the petitioner's resignation in view of the order of dismissal without notice dated 31.03.1999 passed by the Disciplinary Authority.
4. Heard Mr.P.Narayanamoorthy, learned counsel for the petitioner and Mr.C.Ravichandran, learned counsel appearing for the respondents.
5. Learned counsel for the petitioner would submit that in the show cause notice dated 23.03.1999 of the 2nd respondent, show cause notice dated 15.03.1999 is referred; only on 23.03.1999, the Enquiry Officer's Report was sent to the charge sheeted employee for his submission before the personal hearing dated 26.03.1999; the show cause notice dated 23.03.1999 was served on the petitioner only one day previous to the personal hearing; hence, the petitioner was not given the real and proper opportunity by the Disciplinary authority. He would contend that the impugned order is passed with a malafide intention.
5a. Learned counsel for the petitioner, in support of his contentions has relied on the following decisions of the Supreme Court:
(i) (1985) 2 SCC 358 (Shankar Dass vs. Union of India and another)
"6. ... Misfortune dogged the accused for about a year ... and it seems that it was under the force of adverse circumstances that he held back the money in question. Shankar Dass is a middle-aged man and it is obvious that it was under compelling circumstances that he could not deposit the money in question in time. He is not a previous convict. Having regard to the circumstances of the case, I am of the opinion that he should be dealt with under the Probation of Offenders Act, 1958.
7. It is to be lamented that despite these observations of the learned Magistrate, the Government chose to dismiss the appellant in a huff, without applying its mind to the penalty which could appropriately be imposed upon him insofar as his service career was concerned. Clause (a) of the second proviso to Article 311(2) of the Constitution confers on the Government the power to dismiss a person from service "on the ground of conduct which has led to his conviction on a criminal charge". But, that power, like every other power has to be exercised fairly, justly and reasonably. Surely, the Constitution does not contemplate that a Government servant who is convicted for parking his scooter in a no-parking area should be dismissed from service. He may, perhaps, not be entitled to be heard on the question of penalty since clause (a) of the second proviso to Article 311(2) makes the provisions of that article inapplicable when a penalty is to be imposed on a Government servant on the ground of conduct which has led to his conviction on a criminal charge. But the right to impose a penalty carries with it the duty to act justly. Considering the facts of this case, there can be no two opinions that the penalty of dismissal from service imposed upon the appellant is whimsical."
(ii) AIR 1994 SC 1074 (Managing Director, ECIL, Hyderabad vs. B.Karunakar) "21. The contention, therefore, of Sri Salve that supply of the enquiry report was a part of the later clause of Art. 311(2) i.e. to impose penalty which requirement was dispensed with by the Constitution Forty Second Amendment Act, S.44 thereof, deleting the necessity of issuance of second show cause notice on the proposed punishment to the delinquent does not merit consideration. The reasons are self evident.
26. ... Therefore, a duty and responsibility has been cast on the disciplinary authority to weigh the pros and cons, consider the case and impose appropriate punishment. In a given case if the penalty was proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court/the tribunal to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. But this would not be a ground to extend hearing at the stage of consideration by the disciplinary authority either on proof of the charge or on imposition of the penalty. ..."
(iii) (2007) 10 SCC 88 (M.P. State Agro Industries Development Corporation Ltd. and another vs. Jahan Khan) "12. Before parting with the case, we may also deal with the submission of learned counsel for the appellants that a remedy by way of an appeal being available to the respondent, the High Court ought not to have entertained his petition filed under Articles 226/227 of the Constitution. There is no gainsaying that in a given case, the High Court may not entertain a writ petition under Article 226 of the Constitution on the ground of availability of an alternative remedy, but the said rule cannot be said to be of universal application. The rule of exclusion of writ jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. In an appropriate case, in spite of the availability of an alternative remedy, a writ court may still exercise its discretionary jurisdiction of judicial review, in at least three contingencies, namely, (i) where the writ petition seeks enforcement of any of the fundamental rights; (ii) where there is failure of principles of natural justice; or (iii) where the orders or proceedings are wholly without jurisdiction or the vires of an Act is challenged. In these circumstances, an alternative remedy does not operate as a bar. ..."
(iv) (2008) 3 SCC 273 (State of Madhya Pradesh and others vs. Hazarilal) "8. An authority which is conferred with a statutory discretionary power is bound to take into consideration all the attending facts and circumstances of the case before imposing an order of punishment. While exercising such power, the disciplinary authority must act reasonably and fairly. The respondent occupied the lowest rank of the cadre. He was merely a contingency peon. Continuation of his service in the department would not bring a bad name to the State. He was not convicted for any act involving moral turpitude. He was not punished for any heinous offence."
(v) 2008 (3) SCC 484 (Moni Shankar vs. Union of India and another) "17. The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
5b. Learned counsel has also relied on a decision of the Andhra Pradesh High Court reported in 2009 (4) SLR 11 in the case of J.Srinivasa Rao vs. UCO Bank "23. It has already been pointed out that though 1st charge was that the petitioner is guilty of fabricating the documents, the Enquiry Officer held the same as proved, without even mentioning any ingredients of fabrication, on the part of the petitioner. The Disciplinary Authority on his part, blindly followed the said finding, which, in turn, violative of the mandatory provisions of law. This is only illustrative. The disciplinary and Appellate Authorities have committed irregularities, at their respective levels. "
6. On the other hand, learned counsel for the respondents would submit that the writ petition is liable to be dismissed on the grounds of non-filing of appeal against the order of dismissal passed by the disciplinary authority and the petitioner, being an Award staff, ought to have approached the Central Government Industrial Tribunal, Chennai for redressal of his grievance, viz. order of dismissal.
6a. To substantiate his stand, learned counsel for the respondents has relied on the following:
(i) a decision of the Karnataka High Court reported in 1983 (II) LLJ 76 (Hariba vs. K.S.R.T.C.) "16. The result of the discussion may be summed up as follows : whenever a workman employed in an industry is dismissed or removed from service and the workman desires to challenge the legality of such action of the management of an industry, on grounds of violation of procedure, as regulated by the prescribed rules or rules of natural justice, the workman should resort to the remedy available under S.10 of the Industrial Disputes Act and a petition under Article 266 should not be entertained, notwithstanding the fact that the industry is under the management of a statutory Corporation or body, which is an 'authority' falling within the definition of the word 'state' as defined in Art. 12 and amenable to the writ jurisdiction of this Court under Art. 226 of the Constitution."
(ii) a decision of the Patna High Court reported in 1985 (I) LLJ 343 (Dinesh Prasad and others vs. State of Bihar and others) "15. We do not find much force in either of the contentions. It is no doubt true that the remedy provided under the Act under S.33-C, on the facts and in the circumstances of this case involving disputes in relation to the two settlements arrived at between the management and the workmen, was not the appropriate remedy. It is also true that it was not open to the workmen concerned to approach the Labour Court or the Tribunal directly for adjudication of the dispute. It is further well established on the authorities of this court that the Government under certain circumstances even on the ground of expediency (vide State of Bombay vs. K.P.Krishnan. [1960-II LLJ 592] and Bombay Union of Journalists vs. State of Bombay [1964-I LLJ 351]) can refuse to make a reference. If the refusal is not sustainable in law appropriate directions can be issued by the High Court in exercise of its writ jurisdiction. But it does not follow from all this that the remedy provided under the Act is a misnomer. Reference of industrial disputes for adjudication in exercise of the power of the Government under S.10(1) is so common that it is difficult to call the remedy a misnomer or insufficient or inadequate for the purpose of enforcement of the right or liability created under the At. The remedy suffers from some handicap but is well compensated on the making of the reference by the wide powers of the Labour Court or the Tribunal. The handicap leads only to this conclusion that for adjudication of an industrial dispute in connection with a right or obligation under the general or common law and not created under the Act, the remedy is not exclusive. It is alternative. But surely for the enforcement of a right or an obligation under the Act the remedy provided uno flatu in it is the exclusive remedy. The legislature in its wisdom did not think it fit and proper to provide a very easy and smooth remedy for enforcement of the rights and obligations created under the Act. Persons wishing the enjoyment of such rights and wanting its enforcement must rest contet to secure the remedy provided by the Act. The possibility that the Government may not ultimately refer an industrial dispute under S.10 on the ground of expediency is not a relevant consideration in this regard.
22. ... the salutary rule is that the writ court would entertain the matter only if the adequate and efficacious remedies have been first resorted to and exhausted. The failure to observe that rule can only be at the peril of crushing the extraordinary jurisdiction itself and ultimately rendering it inefficacious because it is, and was never intended, to replace or substitute the ordinary legal remedies expressly provided by the Legislature. Therefore, on principle itself resort to the extraordinary jurisdiction is permissible only after resorting to the alternative remedy where available."
(iii) (1998) 6 SCC 549 (Scooters Indian and others vs. Vijai E.Eldred) "2. The above facts alone are sufficient to indicate that there was no occasion for the High Court to entertain the writ petition directly for adjudication of an industrial dispute involving the termination of disputed questions of fact for which remedy under the industrial laws was available to the workman.
... It is also extraordinary for the High court to have held clause 9.3.12 of the standing orders as invalid. Learned counsel for the respondent rightly made no attempt to support this part of the High Court's order. In view of the fact that we are setting aside the High Court's judgment, we need not deal with this aspect in detail."
(iv) (2001) 1 SCC 214 (Punjab & Sind Bank and others vs. Sakattar Singh) "5. ... We do not also find any material on record to show that he had reported for duty within the period indicated in the notice issued in terms of clause 16 of IV bipartite settlement. In the circumstances, we find the High Court had proceeded on an erroneous basis of non-compliance with the principles of natural justice, whereas the true content of the principles of natural justice should have been borne in mind, particularly when there was an agreement between the parties as to the manner in which the situation should be dealt with and the consequence that would ensue thereof."
(v) (2004) 6 SCC 325 (Vice Chairman, Kendriya Vidyalaya Sangathan and another vs. Giridharilal Yadav) "11. ... In terms of Section 58 of the Evidence Act, 1872, facts admitted need not be proved. It is also a well-settled principle of law that the principles of natural justice should not be stretched too far and the same cannot be put in a straitjacket formula. ..."
(vi) (2006) 2 SCC 269 (L.K.Verma vs. HMT Ltd. and another) "20. ... Despite existence of an alternative remedy, a writ court may exercise its discretionary jurisdiction of judicial review inter alia in cases where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right or if there has been a violation of a principle of natural justice or where vires of the Act is in question. In the aforementioned circumstances, the alternative remedy has been held not to operate as a bar (See Whirlpool Corpn. vs. Registrar of Trade Marks, Sanjana M.Wig vs. Hindustan Petroleum Corpn. Ltd. and State of H.P. vs. Gujarat Ambuja Cement Ltd.)
(vii) (2008) 5 SCC 569 (Chairman & Managing Director, V.S.P. and others vs. Goparaju Sri Prabhakara Hari Babu) "16. Indisputably, the respondent was a habitual absentee. He in his explanation, in answer to the charge-sheet pleaded guilty admitting the charges. In terms of Section 58 of the Evidence Act, charges having been admitted were not required to be proved. It was on that premise that the enquiry proceeding was closed. Before the enquiry officer, he did not submit the explanation of his mother being ill. He, despite the opportunities granted to report to duty, did not do it. He failed to explain even his prior conduct.
19. A subsequent explanation before another authority, which had not been pleaded in the departmental proceedings, cannot by itself be a ground to hold that the principles of natural justice had not been complied with in the disciplinary proceedings.
21. Once it was found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. "
(viii) (2008) 3 SCC 446 (New India Assurance Co. Ltd. vs. Vipin Behari Lal Srivastava) "9. A bare look at it shows that there was no condonation of the absence without leave as held by the High Court. On the contrary, it was clearly indicated that no leave was due and even leave without pay cannot be granted. Therefore, direction was given to join back immediately failing which certain presumptions were to be drawn as noted above.
12. As noted above, sick leave can be granted only on the production of a medical certificate from a registered medical practitioner clearly stating as far as possible the diagnosis and probable duration of treatment. There was no such indication in the certificates purported to have been furnished by the respondent. It is to be noted that the respondent even did not join after receipt of the letter dated 03.08.1994. The charges against the respondent, inter alia, were as follows :
"(i) wilful insubordination and disobedience of lawful and reasonable orders of his superiors,
(ii) absence without leave, without sufficient grounds or proper or satisfactory explanation,
(iii) absence from his appointed place of work without permission or sufficient cause."
18. Mere sending of an application for grant of leave much after the period of leave was over as also the date of resuming duties cannot be said to be a bona fide act on the part of the workman. The Bank, as noticed hereinbefore, in response to the lawyer's notice categorically stated that the workman had been carrying on some business elsewhere.
20. ... A limited enquiry as to whether the employee concerned had sufficient explanation for not reporting to duties after the period of leave had expired, or failure on his part on being asked so to do, in our considered view, amounts to sufficient compliance with the requirements of the principles of natural justice."
7. An analysis of the facts of this case would show that the petitioner was appointed as Messenger in Appanthirupathy Branch of the Indian Overseas Bank in June 1991 and his service was confirmed in December 1991. According to the petitioner, he availed leave to assist his age old mother in her daily routine, as she could not do anything independently; moreover, he had to look after his brother's son aged 12 years, since his brother died two years ago; that apart, he himself was suffering from jaundice during December 1998.
8. A perusal of the material records would show that the petitioner was on leave from April 1996 to February 1998 for 373 days; he again absented himself from 06.10.1998 by submitting a leave letter for 15 days. Thereafter, he was extending his leave by submitting leave letter one after another. In spite of being advised by the Regional Office, Madurai that his leave was declined and he had to report for duty immediately, the petitioner did not respond to the same and hence, a charge sheet dated 21.11.1998 was issued against the petitioner for contravening the following clauses of the Bi-partite settlement dated 14.12.1966 between the Bank and its workmen as amended up to date.
"17.7 (Minor misconduct)
(b) Unpunctual or irregular attendance
(e) neglect of work, negligence in performing duties 17.5 (Gross Misconduct)
(d) willful damage or attempt to cause damage to the property of the bank or any of its customers.
(f) habitual doing of any act i.e. unpunctual and irregular attendance in your case (you have been charge sheeted 4 times earlier)"
9. In the meantime, on 14.01.1999, the petitioner came to the Branch all of a sudden and signed the Attendance Register without submitting leave letter and medical certificate. Since the petitioner remained absent without giving any information to the Branch, the petitioner was issued with an additional charge sheet dated 23.01.1999 for willful insubordination or disobedience of any lawful and reasonable order of the management or of a Superior under clause 17.5 (e) (Gross Misconduct) of the Bi-partite Settlement in addition to contravening the clauses of the Bi-partite Settlement mentioned above.
10. Pursuant thereto, the Disciplinary Authority was appointed as Enquiry Officer to conduct the enquiry; the enquiry was conducted and the Enquiry Officer submitted his Report holding that since the Charge-Sheeted Employee has admitted the charges wholly and unconditionally, all the charges levelled against him in the charge sheet dated 21.11.1998 and in the additional charge sheet dated 23.01.1999 stand established in toto and the Charge-Sheeted Employee is found to be guilty of the charges under clauses 17.7 (b) & (e) and 17.5 (d) (e) & (f) of the said Bi-partite Settlement.
11. Thereafter, a show cause notice dated 23.03.1999 was issued to the petitioner in respect of the charge sheets dated 21.11.1998 and 23.01.1999 along with the Enquiry Officer's Report to enable him to provide his submissions on the Enquiry Officer's Report within the stipulated time and also indicated that a personal hearing will be given to him on 26.03.1999 at 11.00 am. Thereafter, the Disciplinary Authority, referring to the Show Cause Notice dated 15.03.1999 and the subsequent letter dated 23.03.1999, passed an order on 31.03.1999 observing that (i) the petitioner has admitted the facts of the case in all its details to be true; (ii) the petitioner has admitted the misconducts wholly and unconditionally in the enquiry proceedings to the Enquiry Officer and tendered an apology for the misconducts and (iii) the petitioner has absented himself wilfully for a long duration. Past records show that he had absented himself for 331 days on various occasions from September 1996 to February 1998. He was charge-sheeted on 19.12.1996, 03.05.1997, 23.10.1997 and 30.12.1997 for his unauthorised absenteeism. Since he assured to be punctual in future and repented for the happenings, a punishment of 'Stoppage of one increment without cumulative effect' was awarded vide Original Order dated 20.05.1998. But, it is found that he has not changed his attitude and habit. Hence, the Disciplinary Authority passed the original order of awarding punishment of 'dismissal without notice' under clause 17.6(a) of the Bi-partite Settlement dated 14.12.1966 between the Bank and its Workmen as amended upto date. It is seen that against the said order of dismissal from service, the petitioner has not preferred any appeal.
12. In this case, the petitioner has raised three questions to show that there is violation of the principles of natural justice, viz., (i) the show cause notice dated 23.03.1999 was served on him only one day prior to the date of personal hearing; therefore, proper opportunity was not given to him by the Disciplinary Authority to attend the personal hearing (ii) the findings of the Enquiry Officer is perverse and (iii) the impugned order is passed without total application of mind and the punishment imposed on the petitioner is disproportionate to the charges.
13. This court, admitted the writ petition and Rule Nisi was issued. Finding that there was prima facie case as there was violation of the principles of natural justice, now, at this point of time, it is not advisable to the petitioner to go for an alternative remedy of appeal and the maintainability of this petition has to be decided. It is seen from the records, that the show cause notice was served to the petitioner only one day in advance to the personal hearing and it is not possible for any prudent person to submit his explanation on the very next day and therefore, it appears that there is violation of the principles of natural justice. It is clear that the petitioner was not given an opportunity to submit his explanation on the show cause notice dated 23.03.1999. When the impugned order of dismissal from service imposed by the disciplinary authority on the petitioner stands vitiated by violation of the principles of natural justice and when there is failure of natural justice, the question of alternative remedy at the stage of final adjudication of the matter could not be raised, as exclusion of jurisdiction due to availability of an alternative remedy is a rule of discretion and not one of compulsion. Alternative remedy does not operate as a bar in judicial review as held by the Supreme Court in the case of M.P. State Agro Industries Development Corporation. Therefore, the first question is answered in favour of the petitioner.
14. As regards the second question that there is perversity in the findings of the Enquiry Officer, it is seen that the Disciplinary Authority, appointed one V.Jebasingh, Officer of the Bank as Enquiry Officer and one P.Sneha Kumar as Presenting Officer and the enquiry was ordered to be held at the Appanthirupathi Branch itself on 02.03.1999. The petitioner pleaded guilty of the charges levelled against him stating that his mother was ailing from a disease which needed operation in her head and he had to assist her in her daily routine; moreover, he had to look after his nephew aged 12 years, as his brother, who was employed in Indian Bank, died two years ago; besides that, he was suffering from jaundice from December 1998. The petitioner requested the Enquiry Officer to give him yet another chance to show involvement in the office work and he also assured that he will attend duty with sincerity. After hearing the explanation from the petitioner regarding the charges, the enquiry was concluded on the very same day, i.e. 02.03.1999 itself.
14a. It is seen that the Enquiry Officer has concluded that the petitioner has admitted the charges levelled against him vide Charge Memos dated 21.11.1998 and 23.11.1998, wholly and unconditionally and hence, held that he is guilty of the charges. A perusal of the records would reveal that a copy of the Enquiry Officer's Report was forwarded to the petitioner to provide his submissions on the Enquiry Officer's Report within the stipulated time as advised in the Show Cause Notice sent to him and also it was informed that a personal hearing will be given by the Disciplinary Authority on 26.03.1999 at 11.00 am. It appears that the enquiry proceedings are in accordance with the Rules and procedures contemplated and there is no perversity in the proceedings of the Enquiry Officer.
15. With regard to the last question raised that the impugned order passed is without application of mind and the punishment imposed on the petitioner is disproportionate to the charges, it is seen that the Disciplinary Authority has not given attention to the charges under which the punishment of dismissal from service is imposed.
16. It is the contention of the learned counsel for the petitioner that a duty and responsibility has been cast on the Disciplinary Authority to weigh the pros and cons, consider the case and impose appropriate punishment; in a given case, if the penalty is proved to be disproportionate or there is no case even to find the charges proved or the charges are based on no evidence, that would be for the court to consider on merits, not as court of appeal, but within its parameters of supervisory jurisdiction and to give appropriate relief. In the instant case, taking into account the past records of the petitioner that there was continued unauthorised absence and that the petitioner has submitted leave letter without enclosing the medical certificate and that even after caution he joined duty, severe punishment of dismissal from service was imposed on the petitioner.
17. It is the ordained principle that it is for the Disciplinary Authority or the Administrative Authority to decide the quantum of punishment in a case of misconduct and the role of the court is only secondary. If the punishment imposed by the disciplinary authority shocks the conscience of this court, it would appropriately mould the relief, either directing the Disciplinary Authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof, as held by the Supreme Court in B.C.Chaturvedi's case. While examining the above proportionality of punishment to the charges levelled against the petitioner, though the petitioner in the enquiry has admitted the charges unconditionally and with folded hands requested the authority to give another chance to correct himself and assured that he would attend his duty with sincerity and in spite of stating that his mother, who was ailing with a disease needed his assistance and that he himself was suffering from jaundice, he was imposed with the extreme punishment of dismissal from service, which shocks the conscience of this court.
18. In Hazari Lal's case, the doctrine of proportionality was considered by the Supreme Court, wherein a peon in Middle School was convicted for assaulting a person, which finally led to his dismissal from service; the Supreme Court therein held that the penalty of dismissal is disproportionate to the charges. It held that the doctrine of proportionality may require the reviewing court to assess the balance which the decision-maker has struck, not merely whether it is within the range of rational or reasonable decisions and the proportionality test may go further than the traditional grounds of review inasmuch as it may require attention to be directed to the relative weight accorded to interests and considerations. Thus, the Supreme Court has time and again considered the applicability of the doctrine of proportionality.
19. In a recent decision of the Supreme Court in the case of Ramanuj Pandey (2009 (7) SCC 248), it is held that while considering the power to interfere with the order of punishment, the Apex Court, while exercising the jurisdiction, is empowered to alter or interfere with the penalty. Though, learned counsel for the respondents has relied on various decisions in respect of misconduct and the proportionality of punishment to the charges framed, the decisions relied on by the counsel for the petitioner do help the petitioner to substantiate his case.
20. Therefore, while looking into the relevant doctrines and taking into consideration the penalty of dismissal from service imposed on the petitioner by the Disciplinary Authority, the impugned proceedings of the Disciplinary Authority is liable to be set aside.
21. In the light of the above discussion and upon analysing the various decisions of the Apex Court and on strictly scrutinising the materials on record, the order of dismissal from service passed against the petitioner warrants interference and accordingly, the order dated 31.03.1999 passed by the 2nd respondent is set aside and the matter is remanded to the Disciplinary Authority to re-consider the order of punishment imposed on the petitioner and pass appropriate orders taking into account all the relevant factors and decisions rendered by the Apex Court. This exercise shall be completed within a period of two (2) months from the date of receipt of a copy of this order.
The writ petition is allowed with the above direction. No costs.
abe To :
1. The Chairman & Managing Director, Indian Overseas Bank, Mount Road, Chennai 600 002.
2. The Senior Regional Manager, Disciplinary Authority, Indian Overseas Bank, Regional Office, 40, Eighty Feet Road, Arignar Anna Nagar, Madurai 20