Industrial Development Bank of India vs Ashok Kumar & Ors.

These two appeals are directed against a judgment and order dated September 10, 2014, passed in W.P. No.21400 (W) of 2012 quashing and setting aside the orders dated August 1, 2011 passed by the Executive Director, Personal Banking Vertical & Disciplinary Authority, Industrial Development Bank of India (hereinafter referred to as the said disciplinary authority) and March 30, 2012/April 7, 2012 passed by the statutory appellate authority (hereinafter referred to as the said appellate authority), respectively, against Shri Ashok Kumar, an Assistant General Manager, Industrial Development Bank of India, (hereinafter referred to as the said officer) with further direction upon the Bank authority to reinstate the said officer with continuity of his services but not to pay any back wages. The disciplinary authority was also directed to impose a suitable lesser punishment upon the said officer in terms of Rule 4 of the D and A Rules, 2006 except penalties under Rule 4 (2) (h), Rule 4 (2) (i) and Rule 4 (2) (j) under the D and A Rules of 2006.

The former appeal bearing F.M.A 712 of 2015 is preferred by the Industrial Development Bank of India (hereinafter referred to as the said Bank) against quashing and setting aside the orders dated August 1, 2011 passed by the said disciplinary authority and March 30, 2012/April 7, 2012 passed by the said appellate authority as also against direction upon the Bank authority to reinstate the said officer with continuity of his services. The later appeal bearing MAT No.1795 of 2014 is filed against the aforesaid judgment by the said officer, who was the respondent in the former appeal against the direction that he should not be entitled to any back wages.

The said officer was appointed under the said Bank to discharge function in the post of Assistant General Manager Grade -"C" on and from March 1, 2007. His service was confirmed on and from April 1, 2008 while he was discharging the function of Branch Head, Personal Banking at Shakespeare Sarani Branch of the said bank. His leave for solemnization of marriage was sanctioned by the authority for the period from February 19, 2009 to March 11, 2009. While he was on leave, he submitted an application dated March 12, 2009 for extension of the above leave through e-mail of one Mr. Guriya, an Officer of Patna Branch of the said Bank from March 12, 2009 to March 24, 2009 for the purpose of performing the postmarriage obligatory rituals.

In the meantime, the said officer was selected by the Indian Institute of Management, Ahmedabad, for pursuing study of post-graduate program in public management and policy (hereinafter referred to as PGP -PMP), for one year course and by a communication dated February 4, 2009, and he was asked to furnish a Letter of Acceptance latest and to avail admission latest by 5:00 P.M. on Monday, February 23, 2009. It was further stated in the aforesaid letter that the above admission would stand cancelled in the event such letter of acceptance was not sent prior to date and time mentioned in that letter. Consequent thereupon, the said officer submitted an application dated February 18, 2009 to the Head, Personal Banking Group, IDBI Ltd. Corporate Centre, IDBI Tower, Cuffe Parade, Mumbai for granting special leave in his favour to avail of the opportunity of pursuing study in the aforesaid course. By a communication through e-mail dated February 24, 2009 he was requested to submit his application for special leave with his supervisor''s recommendation. He was also informed by the aforesaid communication through e-mail that his application was not processed and they would be waiting for the one with recommendation of his supervisor. Subsequently, another message was received through e-mail addressed to the aforesaid Mr. Guriya from Rabinarayan Misra, cluster head, to inform him that his application for extension of leave had not been permitted in view of amalgamation of his branch with Park Street. So far as his application for special leave was concerned, he was advised by the above communication through e-mail to resume duty and liaison HR/competent authority and on the basis of sanction be relieved from the branch after making over the charge to the next person.

Thereafter, the said officer pursued the PGP - PMP course and after his successful completion of the above course on March 31, 2010, he made an application to the Regional Head, Eastern Region of the said Bank on April 5, 2010 praying for permission to join his duties. He did not receive any reply to his above prayer and he made further representation dated May 10, 2010 to the Chief General Manager of the appellant bank for allowing him to resume his duties.

Thereafter, by an order dated June 14, 2010 the petitioner was suspended on the ground that he had been absconding from banking service for a period of more than one year before completing two years of total service under the appellant bank.

A charge sheet dated June 23, 2010 was served upon him under the Industrial Development Bank of India Limited Officers (Conduct), Rules, 2006, (hereinafter referred to as the said Officers (Conduct) Rules,2006), labeling a charge of absconding himself from duties for a period of one year and 94 days from March 12, 2009 without obtaining prior permission. The said officer submitted reply to the above charge sheet. A departmental enquiry was conducted against him and the enquiry officer submitted his report dated May 26, 2011 to the disciplinary authority. Upon receipt of a copy of the above inquiry report he submitted his representation dated June 22, 2011. By virtue of an order of punishment dated August 1, 2011 a major penalty of "removal from service, which shall not be a disqualification for future employment" in terms of Rule 4 (2) (i) of the Industrial Development Bank of India Limited Officers (Discipline and Appeal) Rules, 2016 (hereinafter referred to as the said D and A Rules, 2006) was imposed upon him.

The said officer preferred a statutory appeal against the above order of punishment under Rule 17 of the said D and A Rules, 2006 and the same was rejected by the statutory appellate authority by an order dated March 30, 2012/April 7, 2012 affirming the aforesaid order of punishment.

The said officer filed an application under Article 226 of the Constitution of India, the order of disposal of which gives rise to these appeals.

According to Mr. Bikash Ranjan Bhattacharya, leaned Senior Advocate appearing on behalf of the said Bank, the learned Single Judge failed to appreciate that the charge sheet was not under challenge in the writ application. The charge of unauthorised absence from service of the said Bank was labeled against said officer in the charge sheet. The above charge was proved in the departmental inquiry. The over stay after joining time was misconduct under Rule 63 of the Industrial Development Bank of India Limited Officers Service Rules, 2006, (hereinafter referred to as the said Officers Service Rules, 2006) and after the conclusion of disciplinary proceeding against him the order of punishment was passed imposing a major penalty upon the respondent under Rule 4 (2) (i) of the said D and A Rules, 2006 against him. It was affirmed by the order passed by the appellate authority in his statutory appeal.

According to him, the said officer was an officer in Grade -"C" and Assistant General Manager (HRD) was the competent authority for sanctioning his special leave. In absence of any application addressed to the aforesaid competent authority no prayer was presumed to be made by the said officer for sanctioning special leave in his favour. So, the finding of the learned Single Judge that the application for special leave of the respondent remained undisposed of was erroneous.

It is further submitted by him that the learned Single Judge was in error in arriving at a conclusion that the punishment imposed upon the said officer was shocking to the conscience of the Court or in other words the quantum of punishment was disproportionate to the misconduct which had been committed by him due to his overstay after completion of period of sanctioned leave as also unauthorised absence from the service of the said Bank during the period of amalgamation of two branches in respect of one of which he was the head authority.

Reliance is placed by Mr. Bhattacharya on the decisions of State of Uttar Pradesh & Ors. vs. J.P. Saraswat, reported in 2011 (3) SCALE 510, Chennai Metropolitan Water Supply and Sewerage Board & Ors. vs. T.T. Murali Babu, reported in 2014 (2) SCALE 163 and Davalsab Husainsab Mulla vs. North West Karnataka Road Transport Corporation, reported in 2013 (12) SCALE 157 in support of his above submissions.

It is submitted by Mr. L.K. Gupta, learned Senior Advocate appearing for the said officer that the application of the respondent for special leave reached HRD Department of the appellant bank. Instead of placing the above application before the competent authority, one officer, namely "Shilpi" advised/requested the respondent to submit his application through e-mail addressed to Mr. Guriya on March 12, 2009. No communication was made directly to him even through e-mail. Therefore, according to Mr. Gupta, there was no error on the part of the learned Single Judge to arrive at a conclusion that his application for special leave remained undisposed of.

It is further submitted by him that the learned Single Judge rightly took into consideration an error with regard to a finding of the disciplinary authority that the application for special leave had been submitted by the said officer even before completion of two years of his total service under the said Bank. It is submitted by Mr. Gupta that two years of his period of service had been completed while he was on leave.

It is also submitted by him that though under the provision of Rule 60 of the said Service Rules, 2006, provided for recalling an officer to duty by competent authority whenever the bank deem fit to do so he was not recalled to duty at any point of time. It is pointed out by Mr. Gupta that the address of the said officer where he had to stay for pursuing his study was known to the appellants. Therefore, according to Mr. Gupta, no punishment could be imposed upon him.

It is further submitted by him that in view of the aforesaid facts and circumstances the respondent was entitled to back wages which was not granted by the learned Single Judge. The aforesaid two grounds are the causes of action in the later appeal preferred by him.

It is submitted by Mr. Gupta that even assuming that he had committed a misconduct for overstay after completion of his sanctioned leave as also for absence from duties without sanction of special leave, the punishment imposed upon him was disproportionate.

Reliance is placed by Mr. Gupta on the decision of Chairman-cum- Managing Director, Coal India Ltd. & Anr. vs. Mukul Kumar Choudhury & Ors., reported in 2009 (15) SCC 620, M.V. Bijlani vs. Union of India, reported in (2006) 5 SCC 88, C.N. Malla vs. State of Jammu & Kashmir & Ors., reported in (2009) 9 SCC 597 and B.C. Chaturvedi vs. Union of India, reported in (1995) 6 SCC 749 in support of his above submissions.

Having heard the Learned Counsel from the respective parties as also after considering the facts and circumstances of these case, we find that, so far as the first contention is concerned, though the application of the said officer dated February 18, 2009 had not been addressed to the prescribed authority, i.e. Assistant General Manager (HRD) the same was forwarded to the above department. By communication through e-mail dated February 24, 2009 an officer of the above department, who was not the competent authority, requested/advised him to submit his application with recommendation of his supervisor instead of processing/placing the same before the competent authority.

A Division Bench of this Court opined in Asian Leather Limited vs. Kolkata Municipal Corporation, reported in 2007 (3) CHN 476 that a natural person has the capacity to do all lawful things unless his capacity has been curtailed by some Rule of Law but in a case the statutory authority, it is just the other way. A statutory authority has no power to do anything unless those powers are conferred on it by this statute, which creates it. The relevant portion of the above division is quoted below:- "6. Those writ applications were contested by the Kolkata Municipal Corporation by filing affidavits-in-opposition and the defence taken by the Corporation was that the year''s budget estimate of the Corporation regarding rates, taxes, fees and charges to be levied by the Corporation contained a specific provision for realization of the fees for Drainage Development and specific rates were mentioned therein and the Mayor with the concurrence of the members of the Mayor-in-Council and the Municipal Commissioner duly approved the levy of the Drainage Development Fees at the specified rates. According to the Corporation, the imposition of the Drainage Development Fees was, thus, in conformity with the provisions contained in the Kolkata Municipal Corporation Act and the Rules and the Regulations framed thereunder and therefore, there was no illegality on the part of the Corporation in demanding the Drainage Development Fees as condition precedent for grant of sanction of the building plans. The Corporation, therefore, prayed for dismissal of those writ applications."

Coming back to the case in our hand, we find that in Appendix -I of the said Service Conduct Rules, 2006, Assistant General Manager (HRD) was the competent authority to consider the application for special leave of the respondent. But the application of the said officer dated February 18, 2009 was not even placed before him for consideration. The action of an officer/stuff of HRD in withholding the application of the said officer was an action without jurisdiction. Noteworthy, the said Bank did not make any submission before the learned Single Judge regarding error on the part of the said officer in sending his application for special leave to the competent authority. Therefore, we find no error or infirmity in the finding of the learned Single Judge that the application of the said officer for granting special leave for one year in his favour remained undisposed of.

So far as the question of overstay was concerned, admittedly his application for extension of leave on the ground of performing postmarriage obligatory rituals was rejected by the competent authority by a communication dated March 12, 2009 through e-mail. Therefore, we further find no error in the finding of the learned Single Judge so far as the question of his misconduct under Rule 63 of the said Officers Rules, 2006 was concerned.

The decisions of J.P. Saraswat (supra) and T.T. Marali Babu, (supra) do not help the said Bank in view of the distinguished facts and circumstances that the concerned respondent overstayed on leave for one and half year on the first occasion and for a period of over four years on the second occasion without even caring to obtain leave.

We do not find any substance in the submissions made by Mr. Gupta in that regard that the communication of the information relating to rejection of his above prayer was made to one Mr. Guriya through e-mail. Because the said officer himself sent his application for extension of leave through the e-mail of Mr. Guriya.

With regard to the quantum of punishment imposed upon the said officer in view of the above facts and circumstances of the appeals in hand, though the charge of overstay on leave without sanction after completion of his leave was proved, the application for granting special leave of one year remained undisposed of in the hands of an officer/ staff of HRD of the said Bank without authority. So we further find no error in the finding of the learned Single Judge that the quantum of punishment of removal from the service of the respondent without disqualifying him for future employment was disproportionate to the misconduct committed by him and the same shocked the conscience of the Court.

In view of the distinguishable facts and circumstances, the decision of Davalsab Husainsab Mulla (supra) does not help the said Bank.

Regarding the next contention with regard to non-payment of back wages, we find that same cannot be said to be unreasonable in the instant case since the petitioner did not discharge any function during the period of his absence/overstay on leave without sanction from the services of the said Bank. Therefore, the above direction of the learned Single Judge does not require our interference.

In M.V. Bijlaani (supra), it was observed by the Apex Court that the report of the enquiry officer suffered from vices mentioned therein. Similarly, in C.N. Malla (supra), payment of back wages was not automatic consequent upon declaration of order of dismissal bad in law but it required exercise of discretion judiciously. So, none of the above decision helps the said officer to get the back wages for the period of overstay in leave.

In view of discussions and observations made hereinabove both the appeals are dismissed and the judgment and order impugned to these appeals is affirmed.

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

Urgent photostat certified copy of this judgment, if applied for, be given to the parties, on priority basis.