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2010 Supreme(Mad) 2378
High Court of Judicature at Madras
S. NAGAMUTHU
Pramila David
Versus
The General Manager, (Appellate Authority) Syndicate Bank, Karnataka State & Others
W.P.No.2113 of 2001
Decided On : 16-06-2010
For the petitioner:A. Sivaji, Advocate.
For the Respondents:S. Ravichandran for M/s. T.S. Gopalan & Co, Advocates.
Ratios:
a. Incidental effect of the service rules on the employee by way of loss of salary, withholding of increment and non counting of the said period of leave for the purpose of pension would not be a bar for initiation of disciplinary proceeding against the delinquent employee by the management.
b. When a person is sent out of service on compulsory retirement not by way of punishment but for other reasons as stated in the Service Regulations, it could be resorted to only rarely for very strong reasons
c. Punishment of compulsory retirement is not disproportionate for the continuous and long unauthorized absence of an employee occupying a responsible position.
d. Unless the punishment is shockingly disproportionate and not merely disproportionate, it is not permissible for the writ court to have a judicial review of the quantum of punishment so as to minimise the same.
Headnote:(A)Service-Absence-Unauthorised absence-Salary-Loss of salary-Punishment-Double jeopardy-Compulsory retirement-Petitioner, an employee of a bank was unauthorisedly absent on many occasions-Respondent informed the petitioner that her absence would be on loss of pay and other consequential loss as per the service rules and also subject to the disciplinary proceedings-Thereafter, the respondent initiated disciplinary proceeding in which the petitioner stated that she submitted her medical leave petition in time but could not prove it-After enquiry, the respondent found her at fault and imposed compulsory retirement and her appeal also failed-In her writ petition, petitioner contended that punishment of compulsory retirement could be imposed only on dead woods and it was disproportionate-She further contended that as she was already deprived of monetary benefit and also deferment of increment, imposing compulsory retirement would amount to double jeopardy-Respondent submitted that the earlier order regarding monetary loss was as per the service rules and consequent to her absence and not by way of disciplinary proceeding-Held, consequential loss of salary or other service benefits as per the service rules would not be a bar for the management to initiate disciplinary proceeding against the delinquent employee-For the frequent unauthorized absence, employee could be compulsorily retired-To impose the punishment of compulsory retirement, an employee need not be a deadwood-Petition was dismissed.
(B)Service-Absence-Unauthorised absence-Salary-Loss of salary-Punishment-Double jeopardy-Incidental effect of the service rules on the employee by way of loss of salary, withholding of increment and non counting of the said period of leave for the purpose of pension would not be a bar for initiation of disciplinary proceeding against the delinquent employee by the management.
The incidental effects on the petitioner’s case (i.e.,) withholding of increment and non counting of the said period of leave for the purpose of pension cannot be termed as penalties in terms of the Regulations and, therefore, the contention of the petitioner that the imposition of punishment of compulsory retirement on her amounts to double jeopardy cannot be countenanced at all at any stretch of imagination. Para 11
(C)Service-Compulsory retirement-Reason-Ground-When a person is sent out of service on compulsory retirement not by way of punishment but for other reasons as stated in the Service Regulations, it could be resorted to only rarely for very strong reasons
When a person is sent out of service on compulsory retirement not by way of punishment but for other reasons as stated above as enumerated in Service Regulations, as held by the Hon’ble Supreme Court, it could be resorted to rarely for very strong reasons as indicated above. Here, in the instant case, compulsory retirement has not been imposed only in the interest of the Bank otherwise than by way of punishment. As a matter of fact, there is no provision in the Regulations to compulsorily retire a person otherwise than by way of punishment. Para 13
(D)Service-Disciplinary proceeding-Punishment-Quantum-Writ-Intereference-Punishment of compulsory retirement is not disproportionate for the continuous and long unauthorized absence of an employee occupying a responsible position- Unless the punishment is shockingly disproportionate not and merely disproportionate, it is not permissible for the writ court to have a judicial review of the quantum of punishment so as to minimise the same.
Relying on the above, the learned counsel for the respondent would submit that in the case on hand, since the petitioner had wilfully absented for such a long number of days though she was in a very responsible post namely, Assistant Manager in the Bank and since she did not turn up for duty despite several warnings issued, she is not entitled for any leniency in the matter of punishment. I am in full argument with the said argument of the learned counsel for the respondent. … … Thus, in my considered opinion, the quantum of punishment also cannot be in any manner considered to be disproportionate to the gravity of charges. It is settled law that unless the punishment is shockingly disproportionate not merely disproportionate it is not permissible for the writ court to have a judicial review of the quantum of punishment so as to minimise the same. Para 15
1. The petitioner was an employee of Syndicate Bank. Between 23.05.1994 and 30.06.1998 she was working as Assistant Manager at Vellore Branch. According to her, on several occasions during the said period, she had severe set back in her health. Apart from that her brother met with an accident and he was paralysed and so she had to take care of her brother. In those circumstances, the petitioner claims that she availed leave on medical grounds. She would more specifically state that she submitted leave applications on 19.03.1996, 08.07.1996, 04.10.1996, 26.10.1996, 23.11.1996, 23.12.1996, 15.01.1997, 17.04.1997, 20.07.1997 and 05.08.1997 along with medical certificates for the period between 08.12.1997 to 30.12.1997; 23.03.1998 to 30.03.1998 and 11.05.1998 to 30.06.1998. She further claims that all her leave applications were duly recommended by the Branch Manager and forwarded to the competent authority. But, according to her, no order was passed by the competent authority on the said leave applications. While so, a charge memorandum dated 22.12.1998 was issued alleging that she was unauthorisedly absent for a total number of 536 days during the following periods:-
Period of Absence
No. of days
26.02.1996 - 16.03.1996
20 25.03.1996 - 27.04.1996 34 25.05.1996 - 06.07.1996 43 25.07.1996 - 27.07.1996 3 01.08.1996 – 02.08.1996 2 12.08.1996 – 28.09.1996 48 17.10.1996 – 18.10.1996 2 30.10.1996 – 15.02.1997 109 16.02.1997 – 10.08.1997 176 11.08.1997 – 12.09.1997 33 13.09.1997 – 17.10.1997
35
08.12.1997 – 30.12.1997
23
23.03.1998 – 30.03.1998
8
Total
536
The petitioner, thereafter, submitted a detailed explanation denying the above allegations. However, an enquiry was ordered into the said charges. The enquiry officer held that the petitioner was unauthorisedly absent and the charges were proved. Accepting the enquiry officers report dated 25.10.1999, the disciplinary authority by his order dated 24.11.1999 imposed a major punishment of compulsory retirement with immediate effect. Against the said order, she preferred an appeal on 10.01.2000 to the General Manager (P) who is the appellate authority under Regulation 17 of the Syndicate Bank Officer Employees (Discipline and Appeal) Regulations, 1976. The appellate authority dismissed the said appeal by order dated 12.02.2000. It is the said punishment which is under challenge in this writ petition.
2. It is submitted by the writ petitioner that the Zonal Officer, Chennai by order dated 07.10.1997 has treated the period of absence between 30.10.1996 and 12.09.1997 (473 days) as unauthorised. Similarly, by order dated 03.03.1998 yet another period of absence between 08.12.1997 and 30.12.1997 (23 days) was also treated as unauthorised. By order dated 03.04.1998 the period of absence between 23.03.1998 to 30.03.1998 (7 days) was treated as unauthorised. Finally, by order dated 31.07.1998, the period of absence between 11.05.1998 and 30.06.1998 (51 days) was treated as unauthorised. By the proceedings of the Regional Officer dated 08.09.1998, it was informed to the petitioner that the total period of absence of 536 days was treated as unauthorised. While treating the absence period as unauthorised, the petitioner was informed as follows:-
"You are further advised to note the following:
(a) Your absence as above is treated as unauthorised with consequent cut in salary and other allowances and also treated as no in service with consequential postponement of annual increment / stagnation increment dates.
(b) The period is not counted as service for terminal benefits /pension.
(c) This is without prejudice to the right of the Bank to initiate disciplinary action as deemed fit."
3. Based on the above, it is now submitted that cut in the salary and other allowances for the absence period treating the said period as non service period, postponement of annual increment / stagnation in increment, non counting of the said period as service period for terminal benefits / pension
