Rajasthan High Court - Jaipur
P K Nihalani vs U C O Bank And Anr on 22 August, 2019
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Writ Petition No. 1731/2003
P.K. Nihalani Son Of Late Shri Narain Das Nehalani, Resident of
13/1031, Malviya Nagar, Jaipur
----Petitioner
Versus
1. UCO Bank Through Its General Manager, 2-Indian
Exchange Place3Rd Floor, Kolkata-700 001
2. The Assistant General Manager, Regional Office, Uco Bank
Arkade International, Ajmer Road, Jaipur
----Respondents
For Petitioner(s) : Mr. Ashok Bansal For Respondent(s) : Mr. Ram Kumar Sharma
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI Judgment 22/08/2019 The petitioner has preferred this writ petition claiming the following reliefs:
"i. the Hon'ble Court may kindly be pleased to call the entire record of the case and after examining the same be pleased to quash and set aside the orders dated 9th June, 2000, 22nd May, 2001 and 20th June, 2002 and the respondent may be directed to reinstate the petitioner in service with all consequential benefits.
ii. If any prejudicial order to the interest of the petitioner is passed during the pendency of the writ petition, the same may kindly be taken on record and be pleased to quash and set aside.
iii. Any other appropriate writ, order or direction, which this Hon'ble Court may consider just and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner. iv. Cost of writ petition may be quantified in favour of the petitioner."
(D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (2 of 7) [CW-1731/2003] The petitioner joined the duties as a Clerk on 1 st January, 1972 and was promoted in the officer cadre in the grade of Junior Management Grade Scale-I. The petitioner admittedly rendered unblemished services of about 29 years in the respondent-Bank but has now been terminated on account of absence w.e.f. 12 th February, 2000. The statement of allegations reads as follows:
ARTICLES OF CHARGES Shri PK Nehlani (PFM No. 13450), Asstt. Manager, Shahpura branch has committed certain acts of misconduct in terms of Regulation 13 read with Regulation 24 of UCO Bank Officer Employees (Conduct) Regulations, 1976, for which he is hereby charged as under :-
1. He was unauthorisedly absent from duties and even after asking hum to join duties failed to report for duties.
2. He has committed acts unbecoming of Bank Officer by not obeying the lawful and reasonable instructions of higher authorities to join duties and refused to take delivery of the letter sent to him.
The allegation upon which the above articles of charges are based are given in the Statement of Allegations."
The petitioner after proper inquiry was punished vide order dated 22nd May, 2001 whereby punishment of removal from service and reduction of basic pay to the lowest stage of JMC Scale-I at Rs.7100/- was passed. The petitioner, who remained absent since 12th February, 2000, made efforts to join back when inquiry was initiated but was not allowed to do the same.
Learned counsel for petitioner while not assailing the inquiry in question and the proceedings on merits, restricts his submission (D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (3 of 7) [CW-1731/2003] to the quantum of punishment. Learned counsel for petitioner Shri Ashok Bansal submits that petitioner has rendered almost 29 years of unblemished and satisfactory services and his absence on account of extreme family conditions ought to have been taken by the respondents leniently as the conduct of the petitioner prior to 12th February, 2000 was satisfactory. Learned counsel for petitioner has referred the following judgments:
(1) Hind Construction & Engineering Co. Ltd. Vs. Their Workmen, reported in AIR 1965 SC 917.
(2) Ranjit Thakur Vs. Union of India (UOI) & Ors., reported in AIR 1987 SC 2386.
(3) Coimbatore District Central Cooperative Bank Vs. Coimbatore District Central Cooperative Bank Employees Assn. & Anr., reported in (2007) 4 SCC 669.
(4) Chairman cum Managing Director, Coal India Limited & Ors.
Vs. Mukul Kumar Choudhari & ors., reported in AIR 2010 SC 75. (5) Jai Bhagwan Vs. Commr. Of Police & Ors., reported in (2013) 11 SCC 187.
(6) Malkiat Singh Vs. State of Punjab & Ors., reported in 1996 SCC (L&S) 656.
(7) Harish Chandra Anandani Vs. State of Rajasthan & ors., SB Civil Writ Petition No.3789/2011, decided on 7th February, 2011. (8) Shri Bhagwan Lal Arya Vs. Commissioner of Police Delhi & ors., reported in AIR 2004 SC 2131.
Learned counsel for respondents Shri Ram Kumar Sharma submits that inquiry was in accordance with law and the punishment is also proportionate to the charges levelled against the petitioner.
Learned counsel for respondents further submitted that petitioner was holding the managerial post in the Bank which is a sensitive institution and unwarranted absence was a serious issue (D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (4 of 7) [CW-1731/2003] and cannot be taken lightly. Learned counsel for respondents has placed reliance on the judgment of Hon'ble Apex Court in the matter of Chennai Metropolitan Water Supply and Sewerage Board & Ors. Vs. T.T. Murali Babu, reported in AIR 2014 SC 1141.
After hearing learned counsel of the parties, this court is of the opinion that learned counsel for petitioner has restricted his submission to the disproportionate punishment and looking into the fact that petitioner has rendered about 29 years of satisfactory services and therefore, the adjudication is limited to such issue only.
This court finds that though the inquiry and the factual matrix of the matter do not call for any interference but the punishment is certainly disproportionate to the charge of small absence. A person on simple explainable absence after due information to the respondents has to be dealt with differently than a person who has otherwise abandoned his services or has committed the act of wilful absence.
This court is relying upon the judgment passed in the matter of Krushnakant B. Parmar Vs. Union of India (UOI) & Ors., reported in (2012) 3 SCC 178 in which the Hon'ble Apex Court has distinguished between unauthorised absence and the wilful absence. The relevant Para 18 to 22 reads as follows:
"18. Absence from duty without any application or prior permission may amount to unauthorised absence, but it does not always mean wilful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalisation, etc., but in such case the employee (D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (5 of 7) [CW-1731/2003] cannot be held guilty of failure of devotion to duty or behaviour unbecoming of a Government servant.
19. In a Departmental proceeding, if allegation of unauthorised absence from duty is made, the disciplinary authority is required to prove that the absence is wilful, in absence of such finding, the absence will not amount to misconduct.
20. In the present case the Inquiry Officer on appreciation of evidence though held that the appellant was unauthorisedly absent from duty but failed to hold the absence is wilful; the disciplinary authority as also the Appellate Authority, failed to appreciate the same and wrongly held the appellant guilty.
21. The question relating to jurisdiction of the Court in judicial review in a Departmental proceeding fell for consideration before this Court in M.B. Bijlani vs. Union of India and others, reported in (2006) 5 SCC 88 wherein this Court held:
"It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi- criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record.
(D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (6 of 7) [CW-1731/2003] While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty." In the present case, this Court finds that in the background of 29 years of continuous past services, the punishment of termination on absence of few months, which was on account of explained and informed family issues is disproportionate and ends of justice would be met if the degree of punishment is revisited by this Court.
(D.B. SAW/1541/2019 has been filed in this matter. Please refer the same for further orders) (Downloaded on 06/06/2021 at 06:11:43 PM) (7 of 7) [CW-1731/2003] However, the merit has not been touched. In the light of aforesaid observations, this court finds that punishment is grossly disproportionate to the charges of absence and looking into 29 years of service in a limited intervention while allowing the writ petition, we uphold the impugned orders but penalty of removal from service and reduction of basic pay to the lowest stage of JMC Scale-I at Rs.7100/- are substituted with the punishment of compulsory retirement from the date of petitioner's absence i.e. 12th February, 2000. The petitioner shall be entitled to all consequential benefits. Accordingly, the same shall be paid by the respondents within a period of three months from today.
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