Ashok Kumar vs Industrial Development Bank of India Ltd.

Tapabrata Chakraborty, J.—This writ application has been preferred challenging the entire disciplinary proceedings including the order of suspension dated 14th June, 2010, the impugned charge sheet dated 23rd June, 2010, the order of penalty dated 1st August, 2011 and the Appellate Order dated 30th March, 2012/7th April, 2012.

Shorn of unnecessary details, the facts are that the petitioner was appointed to the post of Assistant General Manager ''Grade C'' in Industrial Development Bank of India (hereinafter referred to as IDBI) on 1st March, 2007. The service of the petitioner was confirmed in IDBI on 1st April, 2008 and subsequently he was transferred to Kolkata and posted as Branch Head, Personal Banking at Shakespeare Sarani Branch of IDBI. While working in the said post, the petitioner applied for leave for a period of 20 days on and from 19th February, 2009 to 11th March, 2009 for solemnization of his marriage and such leave was duly sanctioned by the appropriate authority. Prior to expiry of the said leave period, the petitioner was selected for a one year course of Post Graduate Programme in Public Management and Policy (hereinafter referred to as PGP-PMP) in the Indian Institute of Management, Ahmedabad and by a letter dated 4th February, 2009, the petitioner was asked to furnish the Letter of Acceptance and to avail admission latest by 5 p.m. on Monday on 23rd February, 2009. In the said letter it was further recorded that the admission offer would stand cancelled in the event such Letter of Acceptance is not sent prior to the date and time mentioned in the said letter. As the said PGP-PMP course would contribute to better performance of duties in the said Bank, the petitioner decided to join the said course and made an application for grant of special leave on 18th February, 2009. As the petitioner was not communicated any decision pertaining to grant of special leave, the petitioner had no other option but to accept the admission offer by the date fixed in the letter dated 4th February, 2009. Subsequent thereto, the petitioner was communicated an e-mail directing him to send the special leave application with the Supervisor''s recommendation. It was further recorded in the said e-mail that the competent authority would process the said application only upon issuance of recommendation by the Supervisor. The petitioner accordingly approached his Cluster Head, requesting him to forward the application with his recommendation to the HRD but in vain. The petitioner also applied for extension of leave through e-mail of one Mr. Guria, an officer of Patna Branch of IDBI on 12th March, 2009 for the period from 12th March, 2009 to 24th March, 2009 for the purpose of performing the post-marriage obligatory rituals. In response to the same the petitioner was communicated a message at page 61 of the writ application (Annexure - ''P5'') which runs as follows:

The extension of leave is not permitted in view of the amalgamation of your branch with Park Street. As far as your request for special leave is concerned. You are advised to resume duty and then liaison with HR/Competent authority and based on the sanction be relieved from the branch after handing over the charge to the next person.

The petitioner, however, pursued the PGP-PMP course and successfully completed the same and was relieved on 31st March, 2010 and he made an application to the Regional Head of Eastern Region IDBI on 5th April, 2010, inter alia, praying for permission to join his duties. Availing no response, the petitioner made a further representation to the Chief General Manager, IDBI, Mumbai on 10th May, 2010 for grant of approval to resume his duties. Surprisingly thereafter, the petitioner was suspended by an order dated 14th June, 2010 alleging, inter alia, that he was absconding from Bank service for a period of more than a year before completing even two years of total service of the Bank. Within 10 days thereafter the petitioner was served a charge sheet dated 23rd June, 2010 alleging, inter alia, that the provisions of the Industrial Development Bank of India Limited Officers'' (Conduct), Rules 2006 (hereinafter referred to as the said Conduct Rules) have been violated by the petitioner and that he was unauthorizedly absenting himself from duties with effect from 12th March, 2009 for a total period of 1 year and 94 days, without obtaining prior permission from the Supervisor. The petitioner replied to the said charge sheet and thereafter an Inquiry Officer was appointed and the said enquiry stood concluded through issuance of the enquiry report on 26th May, 2011 to which the petitioner replied on 22nd June, 2011 and thereafter the petitioner was imposed a major penalty of "removal from service, which shall not be a disqualification of future employment" in terms of Rule 4(2)(i) of the Industrial Development Bank of India Limited Officers'' (Discipline & Appeal), Rules 2006 (hereinafter referred to as the said D & A Rules).

Aggrieved by the said order of penalty dated 1st August, 2011, the petitioner preferred a statutory appeal under Rule 17 of the D & A Rules of 2006 and the same was rejected by an order dated 30th March, 2012/7th April, 2012 confirming the order of penalty dated 1st August, 2012.

Mr. Gupta, learned senior advocate appearing for the petitioner submits that the respondents have proceeded with a preconceived notion to the effect that he was absconding from the Banking service, as would be explicit from the order of suspension itself.

According to Mr. Gupta the allegations of absconding and unauthorized absence are absolutely unfounded inasmuch as the authorities were put to notice by the petitioner through a letter dated 18th February, 2009 that he was desirous of pursuing a management course at IIM, Ahmedabad and accordingly he sought for grant of special leave with effect from 25th March, 2009 and it stands admitted by the respondents that such letter was duly received by them.

He further contends that overstayal does not automatically attract a misconduct under Rule 33 of the said Conduct Rules punishable under the D & A Rules inasmuch as overstayal is condonable upon satisfactory explanation but the explanation given by the petitioner was not considered by the respondents.

He further submits that the petitioner has not violated the provisions of Rules 4, 5, 17 and 18 of the said Conduct Rules inasmuch as the course was pursued for better performance of duty and the same does not tantamount to the lack of integrity, honesty, devotion and diligence.

He further draws the attention of this Court to the enquiry report and submits that after categorically observing that the petitioner became eligible for leave on 1st March, 2009, the Inquiring Authority remarked that the petitioner has not fulfilled the other criteria such as (i) close relationship of the course with the activities in which the Bank is interested viz., industry, technologies, management, economies etc. (ii) leave can be granted on case to case basis for research work (iii) There is a condition of execution of agreement, for which CSO has never mentioned anything about it, in any of his communications which are brought on the record of the enquiry.

According to him none of the said criteria is applicable to the petitioner inasmuch as the course attended and completed by the petitioner is a management course and it has a close relationship with the activities in which the Bank is interested and that in terms of Clause 5 of the "Guidelines for grant of study leave" (hereinafter referred to as the said guidelines) the petitioner was eligible to be considered since the petitioner has admittedly put in 2 years of service. Furthermore, the condition for execution of agreement is applicable to officers who have already availed study leave. The formation of opinion of the Inquiring Authority, on the rudiments of erroneous facts, is thus unsustainable in law.

The respondents, having not considered such prayer of the petitioner and having not communicated an order of rejection of such prayer for leave, could not have imposed the punishment on the rudiments of a vague charge to the effect that the petitioner was guilty of unauthorized absence.

Mr. Gupta further draws the attention of this Court to the contents of paragraph 6 of the order of penalty wherein it has been, inter alia, observed by the Disciplinary Authority that "it has been duly proved in the departmental inquiry that CSO, in gross neglect of his official position, duties and responsibilities, was unauthorizedly absent from duty for more than a year before completing even two years of total service in the bank". Such finding of the Disciplinary Authority is absolutely unfounded since the petitioner joined his service on 1st March, 2007 and completed two years on 28th February, 2009.

He further submits that the detailed grounds taken by the petitioner in the appeal petition have not been considered by the Appellate Authority and that the appellate order does not reveal any independent application of mind and accordingly the same is unsustainable in law.

He further argues that the penalty imposed is disproportionate to the alleged charges and that accordingly the same needs to be quashed in exercise of the power of judicial review. According to him, the petitioner is presently aged about 42 years and he has a family to maintain and the imposition of the punishment of removal would severely affect him and his family. The petitioner is not a habitual absentee and the previous service rendered by the petitioner does not contain any blemish and he has not been charged of any monetary loss or fraud and that as such the petitioner deserves an opportunity to continue in service.

Mr. Gupta has placed reliance upon the following judgments:-

a) Chairman cum Managing Director, Coal India Limited and Another Vs. Mukul Kumar Choudhuri and Others, , in support of the proposition to the effect that the doctrine of proportionality is well recognized concept of judicial review in our jurisprudence and that the discretionary power of the decision-maker to quantify the punishment, once the charges of misconduct stand proved, is exposed to judicial intervention if exercised in a manner which is out of proportion to the fault.

b) State of Uttar Pradesh and Others Vs. J.P. Saraswat, in support of the proposition that interference by the Writ Court on the question of punishment is permissible in rare cases where the punishment is disproportionate to the established charge, which appears to be unconscionable and actuated by malice.

Mr. Ghosh, learned senior counsel appearing for the respondents, placing reliance upon the affidavit-in-opposition filed by the respondents, submits that it would be explicit from the email at page 61 of the writ application that the petitioner''s prayer for extension of leave was not permitted in view of amalgamation of the concerned Bank with Park Street and that in respect of the petitioner''s request for special leave, the petitioner was advised to resume duty and then liaison with HR/Competent Authority.

According to him, the said directions were not complied with by the petitioner though he was holding a responsible post of Branch Manager. From such conduct of the petitioner it is crystal clear that he had no sense of responsibility and his recalcitrant attitude warranted imposition of punishment and he does not deserve any sympathy and he cannot be allowed to continue in the post of Branch Manager.

He further argues that the petitioner was granted ample opportunity of hearing and the disciplinary proceedings were conducted in strict consonance with the statutory provisions and the grounds of challenge argued by the petitioner against the said proceedings are not sustainable in law. The charges framed against the petitioner have been corroborated through depositions tendered by the witnesses and the nexus amongst the charges and the petitioner stands established.

According to him, the petitioner deserves no sympathy since the totality of the facts would reveal that he had no sense of responsibility and being aware about the difficulties which would be faced by the employer for his long absence, the petitioner proceeded on unauthorized leave with a ploy to take a chance to join his duties subsequent to the unauthorized period of leave and that as such the instant writ application is a chance litigation on his part to get back the job from which he has been rightly terminated.

According to him, the appellate order is a reasoned one and the same reflects the application of mind on the part of the Appellate Authority.

In support of his contentions to the effect that that judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority and that judicial review involves a challenge to the legal validity of the decision and that it does not allow the Court to examine the evidence for the purpose of forming its own view, Mr. Ghosh has placed reliance upon the following judgments:-

a) Kerala Solvent Extractions Ltd. Vs. A. Unnikrishnan and Another,

b) Heinz India Pvt. Ltd. and Another Vs. State of U.P. and Others,

c) The Managing Director State Bank of Hyderabad and Another Vs. P. Kata Rao,

d) S.R. Tewari Vs. Union of India (UOI) and Another,

In support of his contention to the effect that unauthorized absence or overstayal of leave is an act of indiscipline, Mr. Ghosh relies upon the following judgments:

a) State of Punjab Vs. Dr. P.L. Singla,

b) M.P. State Electricity Board and Another Vs. S.K. Yadav,

In support of his contentions to the effect that the doctrine of proportionality cannot be invoked when the misconduct stands proved and the Writ Court cannot overturn a legal order on the basis of sympathy or sentiment and that the punishment should not be merely disproportionate but it should be strikingly disproportionate to warrant interference by the Writ Court and that the Writ Court cannot interfere with the quantum of the punishment unless there exist sufficient reasons therefor and that in case of quantum of punishment, the role of the Court is only secondary and that normally punishment imposed by the Disciplinary Authority should not be disturbed unless shockingly disproportionate, Mr. Ghosh relies upon the following judgments:-

a) Chairman and MD V.S.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu,

b) The Commandant, 22 Battalion, CRPF Srinagar, C/o 56/APO and Others Vs. Surinder Kumar,

c) State of Meghalaya and Others Vs. Mecken Singh N. Marak,

d) Ramanuj Pandey Vs. The State of M.P. and Others,

e) Director General R.P.F. and Others Vs. Ch. Sai Babu,

f) Union of India and another Vs. G. Ganayutham (Dead) by LRs.,

According to Mr. Ghosh, the extent of defiance of authority has assumed such a proportion and that too in respect of an Officer to the rank of Assistant General Manager that the appropriate punishment would be dismissal of service since by virtue of the totality of the acts indulged in by the petitioner, retention in service is contrary to and inconsistent with the discipline of the Bank. Insubordination in the instant case is of abnormal proportion. Consequently, the punishment was proportionate to the gravity of misconduct. The scope of judicial interference is totally absent in the instant case considering the facts and circumstances specially the position held by the petitioner in the Bank. The whole act is in negation with the basic concept of discipline and that too in an establishment like Bank.

Mr. Gupta in reply submits that there is no dispute as regards the proposition that the power of judicial review is limited and that there is no scope for reappreciation of the evidence and that judicial review is not akin to adjudication on merit by reappreciating the evidence as an Appellate Authority.

According to Mr. Gupta, the judgments cited by Mr. Ghosh pertaining to the doctrine of proportionality are distinguishable on facts.

In the case of State of Hyderabad (Supra) the allegation was of commission of offence under the provisions of the prevention of Corruption Act. In the case of Commandant, 2nd Battalion (Supra) the allegation was that the charged officer misbehaved with his superior in an inebriated state of mind and snatched his superiors - AK47 Rifle and pointed the barrel to him. In the case of DLF Universal Limited (Supra) the allegation was a monetary loss. In the case of Ramanuj Pandey (Supra) the allegation was that the charged officer had detained a public servant in a police post without any reason, violating his fundamental rights. In the case of Director General, RPF and Others (Supra) the charged officer was a habitual absentee and he did not improve his conduct despite imposition of earlier punishment of stoppage of increments. In the case of Union of India & Anr. (Supra) the allegation was that the employee had caused substantial loss of revenue to the government.

I have heard the submissions of the learned advocates appearing for the respective parties and I have considered the materials on record.

The order of suspension was issued to the petitioner after he returned upon conclusion of the course and made the application for joining his duties on 10th May, 2010 and the charge sheet was issued within 10 days thereafter on 23rd June, 2010. A perusal of the order of suspension reveals that the respondents were of the considered view that the petitioner was absconding from Bank service for a period of more than a year and in the backdrop of such allegation it was not considered to be desirable by the Bank to allow the petitioner to rejoin his duties. However, in the charge sheet, issued within 10 days thereafter such considered view of "absconding" stood modified as unauthorized absence and the conduct of the petitioner was alleged to be violative of the provisions of Rules 4, 5, 17 and 18 of the Conduct Rules and that the petitioner''s action, constituted a misconduct in terms of Rule 33 of the Conduct Rules.

I have considered the guidelines towards grant of study leave and I find that a right stands conferred upon the employees to be considered for grant of study leave and the employees, who have completed 2 years of service, can avail study leave for a period of more than a year and that such study leave can be availed when the course pursued by the employee would contribute to better performance of duties.

A perusal of the Inquiry Report reveals that the enquiry had been conducted on the rudiments of a notion that the course pursued by the petitioner has no relationship with the activities in the Bank and that the concerned employee should have executed an agreement. Such findings are unsustainable inasmuch as the course has a close relationship with the activities in the Bank and that the question of execution of the agreement does not occasion since the petitioner''s prayer for study leave itself was not considered. The guidelines, specifically clause 6 thereof, clearly speaks that such execution of agreement would occasion when study leave is actually granted. As such, the inconsistencies and the infirmities as explicit on the face of the records do not satisfy with the test of preponderance of probability. A perusal of the document at page 61 would reveal that there was no consideration of the petitioner''s prayer for leave to pursue a course relevant to his duties. Only after the petitioner applied for joining after completion of the course on 10th May, 2010, the respondents initiated the disciplinary proceedings and there is no explanation on the part of the respondents as to why they waited for more than a year to initiate the proceedings and in the backdrop of such admitted facts, the blameworthiness and irresponsibility as alleged against the petitioner does not stand established.

It is to be borne in mind that the primary charge against the petitioner is of unauthorized absence and that under Rule 17(2) of the Conduct Rules of 2006 such absence can be condoned in the event the employee can give satisfactory explanation towards such absence. In the instant case the petitioner applied for leave explaining the necessity but the respondents did not respond to such prayer and that accordingly the petitioner had to join the PGP-PMP course since deadline of sending of the Letter of Acceptance for the concerned management course was fixed to be 23rd February, 2009. The allegation that the respondents had no knowledge and that they were totally unaware as to why the petitioner continued in absence on and from 11th March, 2009, is unfounded since the documents reveal that the petitioner intimated the respondents as to why he wanted such leave and it was also disclosed as to where he would be found during such period of absence.

The contention of Mr. Ghosh that the respondents were totally unaware about the petitioner''s whereabouts on and from 11th March, 2009 is not acceptable since the respondents had full knowledge that the petitioner was pursuing a course of PGP-PMP at IIM, Ahmedabad. Even being aware of the petitioner''s whereabouts, the respondents did not initiate any proceeding and did not call upon the petitioner to immediately resume his duties. On the contrary respondents waited for the petitioner to join after conclusion of the management course.

The concluding part of the Inquiry Report runs as follows:-

"From the above discussion it is observed that while applying for leaves approach of CSO was casual. He merely submitted leave application and remained absent shows his neglect towards rules and regulations, careless attitude and irresponsible nature towards his duties."

The above quoted paragraph of the Inquiry Report reveals that the approach of the petitioner towards availing leave was casual and it stands admitted therein that the petitioner did apply for leave for admission at IIM, Ahmedabad and that as such the observations of the Inquiring Authority in the earlier part of the report to the effect that the petitioner remained absent without furnishing leave address, is absolutely erroneous.

In the order of penalty, the Disciplinary Authority proceeded being oblivious of the fact that the petitioner''s prayer for special leave was simply kept in abeyance by the respondents and no decision to allow the prayer of the petitioner or to disallow the same was communicated by the Competent Authority. On the rudiments of such infirmities, the imposition of the order of removal from service is not sustainable.

The order of the Appellate Authority reveals that the said authority has considered a charge to the effect that the petitioner was absconding from his duties for more than a year for an ostensible purpose of doing a course, for which there was no prior permission. But such allegation does not feature in the charge sheet itself. The authorities themselves kept the said leave application in abeyance and did not consider the same. The burden of such laches on the part of the concerned respondents have been sought to be shifted to the petitioner''s shoulder.

Records further reveal that the Inquiring Authority, the Disciplinary Authority and the Appellate Authority have all proceeded on the basis that there is no provision towards grant of special leave though in terms of Rules 41, 56 and 58 of the Industrial Development Bank of India Limited Officers'' Service Rules, 2006 (hereinafter referred to as the said Service Rules of 2006) an employee can apply for special leave and that the employer is under an obligation to consider the prayer for special leave. In the instant case there has been no such consideration.

In the backdrop of the said infirmities in the proceedings, the respondents could not have imposed the severe punishment of removal from service against the petitioner and such punishment is disproportionate to the charges framed against the petitioner.

Proportionality is "concerned with the way in which the decision-maker ordered his priorities; the very essence of decision making consists surely in the attribution of relative importance to the factors in the case".

It is well-settled that the punishment or penalty to be imposed must be commensurate with the gravity of misconduct. The disciplinary authority while inflicting punishment must adhere to the doctrine of proportionality and cannot exercise the power in an arbitrary manner.

The decision to remove the petitioner from his service does not stand supported with cogent reasons. In all fairness and propriety demands that when major disciplinary punishment is sought to be inflicted, which would tantamount to removal from service, there should be absolute fair play in action, without even a tinge of malafide motive. Sadly, this aspect of the matter is missing from the action taken by the authorities and the punishment imposed upon the petitioner is disproportionate to the charges alleged.

The petitioner at present is aged about 42 years and he is a married person having a family and the punishment as imposed is the highest punishment and that the same affects the livelihood of the petitioner and his family.

The petitioner is not a habitual absentee and he has not caused any monetary loss to his employer and he does not have a prior record of any misconduct and he is not likely to be a menace or threat or danger to his employer and there is a possibility of reformation. Weightage ought to have been granted to the said mitigating factors for the purpose of imposition of penalty.

Neither the Inquiring Authority nor the Disciplinary Authority nor the Appellate Authority did come to any positive finding that the absence was wilful. Mere absence from duty without application or prior permission is unauthorized absence but it does not ipso facto become wilful and unauthorized absence.

The judgment delivered by the Hon''ble Supreme Court, in the case of Krushnakant B. Parmar Vs. Union of India (UOI) and Another, specifically observed inter alia as follows:

"16. The question whether unauthorised absence from duty amounts to failure of devotion to duty or behaviour unbecoming of a Government servant cannot be decided without deciding the question whether absence is wilful or because of compelling circumstances."

Measure, magnitude and degree of misconduct needs to be taken into consideration to determine and to weigh the proportion. The imposition of punishment is subject to judicial intervention if the same is exercised in a manner which is out of proportion to the fault. If the award of punishment is grossly, in excess of the allegations made, it cannot claim immunity and makes itself amenable for interference under the limited scope of judicial review. In the instant case, there has been no allegation to the effect that the petitioner has intended to gain any pecuniary advantage. The petitioner''s conduct was irreproachable and that his understanding of responsibility and adherence to discipline was not questionable. Regard being had to the facts involved, the nature of post held by the petitioner and the conduct expected of him, I am of the opinion that the doctrine of proportionality is invocable in the instant case.

Accordingly, the order of punishment dated 1st August, 2011 issued by the Disciplinary Authority and the order dated 30th March, 2012/7th April, 2012 issued by the Appellate Authority are set aside and the respondents are directed to reinstate the petitioner with all continuity of service forthwith, within a period of four weeks from the date of communication of this order. The petitioner shall not be entitled to any backwages.

The Disciplinary Authority is also directed to impose a suitable lesser punishment upon the petitioner in terms of Rule 4 of the D & A Rules, 2006 except the penalties under Rule 4(2)(h), Rule 4(2)(i), and Rule 4(2)(j) under the D & A Rules of 2006. In my opinion, the aforesaid punishment will be a sufficient corrective measure for the petitioner and will also meet the ends of justice in the facts of the present case.

With the above observations and directions, the writ application is disposed of.

There shall, however, be no order as to costs.

Urgent Photostat certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.