IMPORTANT POINT
Bank Officer remaining absent unauthorisedly from duty for about three years is a grave misconduct & order of dismissal from service could not be said to be disproportionate to misconduct.

Headnote:Civil Procedure Code, 1908—Order IX Rule 13—Setting aside ex-parte decree—Ex-parte decree for a sum of Rs. 37,26,428 with interest was passed on appellant’s plaintiff application under Order XII Rule 6 when defendant failed to appear to oppose it—Single Judge found application for setting aside ex-parte decree to be mischievous and devoid of merits but decree was recalled subject to respondent furnishing a security of Rs. 37 lakhs by way of bank guarantee or in cash—Division Bench proceeded on basis that Single Judge having exercised his discretionary jurisdiction could not have imposed such a harsh condition and set aside the condition—Appeal by plaintiff—Order 9 Rule 13 CPC postulated “Payment into Court”—Court however was not denuded of its power to put defendants to terms but such term should not be unreasonable or harshly excessive—Division Bench was not right in holding that Single Judge did not possess such power—Single Judge however was not correct to direct securing of entire sum of Rs. 37 lakhs—Interest of justice to be sub-served if respondent was directed to furnish security to extent of Rs. 5 lakhs.
Held : Order IX Rule 13 of CPC did not undergo any amendment in the year 1976. The High Courts, for a long time, had been interpreting the said provision as conferring power upon the courts to issue certain directions which need not be confined to costs or otherwise. A discretionary jurisdiction has been conferred upon the court passing an order for setting aside an ex parte decree not only on the basis that the defendant had been able to prove sufficient cause for his non-appearance even on the date when the decree was passed, but also other attending facts and circumstances. It may also consider the question as to whether the defendant should be put on terms. The court, indisputably, however, is not denuded of its power to put the defendants to terms. It is, however, trite that such terms should not be unreasonable or harshly excessive. Once unreasonable or harsh conditions are imposed, the appellate court would have power to interfere therewith. But, it would not be correct to hold that no error has been committed by the Division Bench in holding that the learned Single Judge did not possess such power. The learned Single Judge exercised its discretionary jurisdiction keeping in view that the matter has been disposed of in fact finally at the interim stage at the back of defendant and it was in that view of the matter a chance was given to it to defend the suit, but, then the learned Single Judge was not correct to direct securing of the entire sum of Rs.37 lakhs in the form of bank guarantee or deposit the sum in cash. The condition imposed should have been reasonable. What would be reasonable terms would depend upon facts and circumstances of each case.(Para 16)
While setting aside a decree, conditions can be imposed but such conditions should not be unreasonable or harshly excessive. Keeping in view the peculiar facts and circumstances, we are of the opinion that interest of justice would be sub-served if respondent No.1 herein is directed to furnish security to the extent of Rs. 5 lakhs. Such security should be furnished to the satisfaction of the learned Single Judge. The security, other than the deposit of the amount in cash, should be furnished within 12 weeks from the date. Plaintiff-Appellant would be entitled to press his application for passing a decree on admission. Defendant-Respondent No.1 would also be entitled to file his objection as to why a decree under Order XII Rule 6 shall not be passed. Such a cause, if not already filed, must be filed within 8 weeks from date.(Paras 24 and 25)

JUDGMENT

Sema, J.—Heard the parties.

2. This appeal is preferred by the General Manager, Appellate Authority, Bank of India.

3. The challenge in this appeal is to the order dated 14.8.2003 passed by the Division Bench of the Andhra Pradesh High Court affirming the order of the Single Judge passed on 2.5.2003.

4. Briefly stated the facts leading to the filing of the present appeal are as follows.

5. The respondent joined the appellant-Bank as a Probationary Officer in 1972. He was thereafter promoted as Middle Management Officer-Grade II in 1981. The respondent unauthorisedly absented himself from duty with effect from 1.2.1994 onwards. By a letter dated 7.2.1994, he was asked to report for duty immediately. On 7.2.1994 the respondent applied for extraordinary leave from 1st February, 1994 to 31st March, 1994. He did not report for duty on 1.4.1994. On 10.5.1994 the Bank requested the respondent to immediately report for duty. On 19.5.1994 the respondent instead of reporting for duty or replying the letter dated 10.5.1994 continued his unauthorised absence and opted for voluntarily retiring from the services of the appellant-Bank. In response to the request of the respondent the appellant-Bank by the letter dated 13.7.1994 and 8.11.1994 requested the respondent to appear for an exit interview to consider his request for voluntarily retirement. This was repeated by another letter dated 9.7.1996. In the interregnum the appellant-Bank decided to draw a disciplinary proceeding against the respondent. On 9.7.1996 the following charges were framed against the respondent :

“1. Shri Md. Nizamuddin availed a loan of Rs. 80,000/- from Secunderabad Branch for purchase of vehicle. However, misutilised the funds so lent without actually purchasing any vehicle and subsequently deposited an amount of Rs.95,120/- after a lapse of 2 years and 2 months to close the account.

2. Shri Md. Nizamuddin availed LTC advance of Rs. 39,780/- during October 1993, originally proposing to avail to LTC facilities during 16.9.1993 to 21.09.1993. However, availed LTC facilities during the period within he was unauthorisedly absent, and submitted claim to the branch. The claim, was therefore, not sanctioned. Mr. Nizamuddin, thereafter, did not refund the LTC advance availed by him. In this manner, he misutilised the advance of Rs. 39,780/-.

3. Shri Md. Nizamuddin remained unauthorisedly absent from duties from 01.02.1994 and submitted leave application dated 07.02.94 for extra ordinary leave from 01.02.1994 to 31.03.1994. Mr. Nizamuddin did not report for duties on 02.04.1994. The branch reminded him to report for duties vide letters dated 07.02.94 and 18.05.1994. The registered letters sent by the branch were returned undelivered. It is observed that Shri Md. Nizamuddin did not report for duties till date. In this manner Shri Nizamuddin remained unauthorisedly absent from duties and left head quarters without prior permission from the competent authority.”

6. The aforesaid chargesheet was sent at the address of the respondent and it was received by the family member of the respondent, namely, Naseem Fatima, wife of the respondent, on 12.7.1996. Thereafter, by the letters dated 30.8.1996, 11.9.1996, 20.9.1996 and 7.10.1996 the appellant-Bank informed the respondent about the appointment of inquiry officer, and the date of inquiry proceeding. Since the respondent failed to participate in the inquiry proceeding held on 19.9.1996 the copies of the inquiry proceedings were sent to him, intimating him about the next date of inquiry proceeding. On 11.10.1996 the respondent in response to the letter dated 7.10.1996, contended that he had already submitted his resignation letter about three years back and the same was pending acceptance by the appellant-Bank. It was further stated that in the absence of any communication from the Bank on his resignation within the stipulated time, his resignation was deemed to have been accepted and the respondent blatantly refused to participat

Click Here to Read the rest of this document

2006 Supreme(SC) 820

IMPORTANT POINTBank Officer remaining absent unauthorisedly from duty for about three years is a grave misconduct & order of dismissal from service could not be said to be disproportionate to misconduct.

IMPORTANT POINT
Bank Officer remaining absent unauthorisedly from duty for about three years is a grave misconduct & order of dismissal from service could not be said to be disproportionate to misconduct.