Service Law - Marwar Gramin Bank (Staff) Service Regulations, 1980 - Absence from duty - Medical Certificate - No prior permission was obtained from the competent authority - Medical reports were submitted after about 24 days - No
allegation that unauthorized absence from duty was willful and
deliberate - It is neither case of the Disciplinary Authority nor the
Inquiry Officer that the medical reports were forged or fabricated or
obtained for any consideration though he was not ill during the said
period - In absence of such evidence and finding, it was not open to the
Inquiry Officer or the Disciplinary Authority to disbelieve the medical
certificates issued by the Doctors without any valid reason and on the
ground of 24 days delay.
IN THE SUPREME COURT OF INDIA
(SUDHANSU JYOTI MUKHOPADHAYA) AND (V. GOPALA GOWDA) JJ.
JULY 07 2014
CIVIL APPEAL NO.6018 OF2014
(arising out of SLP (C) No.29807 of 2012)
CHHEL SINGH … APPELLANT
VERSUS
M.G.B. GRAMIN BANK PALI & ORS. … RESPONDENTS
2. This appeal is
directed against the judgment and order dated 10th May, 2012 passed by
the Division Bench of the High Court of Judicature for Rajasthan at
Jodhpur whereby the Division Bench allowed the appeal preferred by the
respondent-M.G.B. Gramin Bank, Pali (hereinafter referred to as the
“Bank”) and set aside the order passed by the learned Single Judge.
3. The factual
matrix of the case is as follows: The appellant was working with the
respondent-Bank since 17th February, 1984 as Clerk-cum-Cashier. While in
service he remained absent from duty from 11th December, 1989 to 24th
October, 1990 (approximately 10 and 1/2 months) without obtaining prior
permission of the competent authority. For the said reason he was served
with a memorandum on 5th October, 1991 alleging contravention of the
provisions of the Marwar Gramin Bank (Staff) Service Regulations, 1980,
for the following charges:
He remained absent
from duty from 11th December, 1989 to 24th October, 1990 without
obtaining prior permission from the competent authority; He failed to
comply with the orders and directions given to him which were the
letters issued asking him to join duty; He remained absent from duty
without any reason. On the day of joining he failed to submit medical
certificate and submitted the same after much delay.
4. The appellant by
his reply dated 23rd November, 1991 disputed the allegations and
informed that he was seriously ill between 11th December, 1989 and 24th
October, 1990, therefore, the absence was beyond his control; he never
intended to contravene any of the provisions of the service regulations.
The explanation submitted by the appellant was not accepted by the
Disciplinary Authority, who decided to inquire into the charges and
appointed one Shri P.R. Agarwal as the Inquiry Officer.
5. During the
inquiry the appellant submitted list of seven defence witnesses.
However, Inquiry Officer called only two witnesses and refused to call
rest of the five witnesses on the ground that the presenting officer of
the Bank was ready to answer the questions on behalf of them as may be
raised by the appellant. After inquiry the Inquiry Officer submitted
report dated 3rd January, 1994, rejecting the testimony of two witnesses
as “untrustworthy” and held the appellant guilty for the charges.
6. The Disciplinary
Authority, having gone through the report, issued a show cause notice
enclosing the copy of the inquiry report as to why the appellant should
not be punished for the charges mentioned therein. Finally, after
hearing the appellant, the Disciplinary Authority held the charges to be
proved and removed the appellant from service by order dated 17th
October, 1994. The appeal preferred against the order of the removal was
dismissed by the Appellate Authority vide order dated 26th December,
1994.
7. The said orders
of the Disciplinary Authority and Appellate Authority were challenged by
the appellant before the High Court in Writ Petition No.1702/1995. One
of the grounds taken was that the entire inquiry stood vitiated having
conducted in violation of principles of natural justice. The Inquiry
Officer without having any justifiable reason disallowed the prayer of
the appellant to summon five important witnesses. The other ground was
that the penalty imposed was disproportionate to the gravity of charges.
8. The learned
Single Judge by judgment dated 31st March, 2009 allowed the writ
petition, quashed the order of removal and directed the respondent to
reinstate the appellant in service with all consequential benefits with
following observation:
“In the instant
case the reason given for not calling the witnesses named by the
delinquent employee is absolutely vague and irrelevant. It does not and
cannot appeal to the measures and standards of a quasi judicial inquiry
that ultimately resulted into removal of the delinquent employee from
service. The refusal to call defence witnesses in the manner existing in
present case is apparent denial of reasonable opportunity to the
charged employee for defending himself. A definite prejudice, therefore,
is caused by not calling the witnesses named by the petitioner without
examining their relevance and ultimately holding him guilty for the
charges in defence of which he indicated his desire to examine those
witnesses.”
The Court also observed:
“In the instant
matter the inquiry officer simply mentioned that the defence witnesses
Kalyan Singh and Ganpat Singh are not trustworthy. No reason is given by
the Inquiry Officer to disbelieve those persons. Pertinent to note here
that Ganpat Singh as well as Kalyan Singh extensively narrated facts
about serious ailment of the petitioner. The Inquiry Officer while
disbelieving those persons should have given definite reasons to justify
his conclusion. Merely saying that the persons are not found
trustworthy, is not at all sufficient. The basic principle is that every
person coming forward as a witness in evidence states trust except
proved otherwise, therefore, onus was upon the Inquiry Officer to
establish by adequate discussion relating to conduct and character of
Kalyan Singh and Ganpat Singh to disbelieve them or to say that they
were not trustworthy.”
9. The aforesaid
judgment passed by the learned Single Judge was challenged by the Bank
in a writ appeal. The Division Bench though accepted that the Inquiry
stood vitiated but set aside the order of reinstatement with following
observation:
“Therefore, we are
of the consigned opinion that even while the order as passed by the
learned Single Judge quashing the orders of the Disciplinary Authority
and the Appellate Authority need not be interfered with, the other part
of the order calls for interference and it appears in the interest of
justice that the matter be restored for reconsideration of, and
re-reporting by, the Inquiry Officer after concluding the inquiry
proceedings in conformity with the requirements of principles of natural
justice. In view of the above, this appeal succeeds and is allowed in
the manner that the order passed by the learned Single Judge insofar
quashing of the impugned orders dated 17.08.94 and 26.12.1994 is
concerned, the same is affirmed, but the other part of the order of the
learned Single Judge, declaring the petitioner entitled to be reinstated
in service with all consequential benefits, is set aside. Instead, we
consider it proper and hence order that the report as made by the
Inquiry Officer dated 03.01.1994 shall stand annulled and the matter
shall stand restored for reconsideration of, and re-reporting by, the
Inquiry Officer. It goes without saying that if the Inquiry Officer who
had earlier conducted the inquiry is not available, or for any other
sufficient reason, it shall always be permissible for the Disciplinary
Authority to appoint any other officer to inquire into the matter. For
looking further instructions in the matter, the parties shall stand at
noted to appear before the Disciplinary Authority on 18.06.2012.”
10. The learned
counsel for the appellant while placing reliance on the Inquiry Report
and finding of the learned Single Judge submitted that the inquiry was
conducted in violation of principle of natural justice and hence the
learned Single Judge rightly directed the reinstatement of the
appellant. Whereas according to learned counsel for the respondent-Bank,
the Division Bench rightly set aside the order of reinstatement and
remitted the matter for fresh enquiry.
11. After giving
our careful consideration to the facts and circumstances of the case and
the submission made by the learned counsel for the parties, we are of
the view that the Division Bench was wrong in setting aside the order of
reinstatement.
12. The Division
Bench has accepted that the inquiry stood vitiated by disallowing the
request of the appellant to summon the rest of the five witnesses. For
the said reason, the Division Bench has not interfered with such part of
the finding and order passed by the learned Single Judge whereby the
impugned order of termination dated 17th October, 1994 and the Appellate
Authority order dated 26th December, 1994 were quashed.
13. The order of
termination being quashed by the High Court, in absence of any
observation and grounds to refuse the reinstatement, the appellant
automatically stood reinstated. Without reinstatement in service, the
question of further inquiry does not arise. There was no occasion for
the Division Bench of the High Court to direct further inquiry, without
reinstatement of appellant.
14. The following charges were leveled against the appellant, as mentioned in the inquiry report:
“Charge No.1:
According to Rule 22(1) of Marwar Gramin Bank Employee Association
Rules, 1980 no officer or employee would absent himself without the
prior permission from competent authority and in case of disease and
accident no one would absent himself without providing medical
certificate, but you flouted the instructions of competent authority and
without permission you remained absent from 11.12.89 to 24.10.90 and
you got the medical certificate issued in connection with your illness
you submitted the medical certificate on 20.10.90 with so much of delay.
Charge No.2: According to Rule 22(2) of Marwar Gramin Bank Employee
Association Rules, 1980 if any officer or employee remains absent
without leave or remains absent after the expiry of leave, (leaving the
circumstances which is beyond their control and for that he has to give
satisfactory clarification), then he would not be entitled for payment
of such absence or the period after the absence and would be liable for
such action which would be charged by competent authority. But you
violated these instructions: (D) You remained on medical leave from
11.12.89 to 24.10.90 and you did not submit leave application as per
rule. (E) You had been instructed by the head office by its letter
no.K/7901 dated 23.08.90 to present yourself on duty within 7 days and
also to give clarification for being absent without leave but you did
not submit any reply. Thereafter also, you were again given instruction
by head quarter letter no.K/10076 dated 22.9.90 you were instructed to
present on duty by 05.10.90 and also to submit the clarification. The
said letter was received by you on 4.10.90. Then also you did not send
any information to bank about your absence. (F) In your clarification
you have stated that you could not give information since you were
suffering from incurable disease but in medical certificate submitted by
you there is no mention of any incurable disease, where it was not
possible for you to send the leave information. Thus, you gave wrong
information to bank. Charge No.3: You not being seriously ill, produced
the evidence of illness from various doctors whereas: (A) You travelled
during your alleged serious illness. According to medical certificate
issued by Dr. S.S. Purohit, Navdeep Hospital Palanpur issued on
25.10.90, you got treatment from him from 13.8.90 to 24.10.90 and rest
has been prescribed whereas during that period you were on your
permanent residence at Chitalwana. You yourself received the registered
letter no.K/1-0078 dated 22.9.90 and K/11211 dated 11.10.90 at
Chitalwana. (B) In the letter K/11211 dated 11.10.90 the instruction
given was very clear that join the duty by 27.10.90 and it was stated in
that letter that if you do not join the duty then it would be presumed
that you are not interested to work in the bank. Then you had shown
yourself to be healthy and you joined duty on 25.10.90 Charge No.4: In
Circular no.21/78 dated 22.6.78 it has been instructed that the
employees on leave on health reason would submit medical certificate
while joining on duty. You violated these instructions and did not
present the medical certificate while joining duty. You submitted the
said certificate on 20.10.90 with delay.”
15. From the plain
reading of the charges we find that the main allegation is absence from
duty from 11.12.89 to 24.10.90 (approximately 10 and ½ months), for
which no prior permission was obtained from the competent authority. In
his reply, the appellant has taken the plea that he was seriously ill
between 11.12.89 and 24.10.90, which was beyond his control; he never
intended to contravene any of the provisions of the service regulations.
He submitted the copies of medical certificates issued by Doctors in
support of his claim after rejoining the post. The medical reports were
submitted after about 24 days. There was no allegation that the
appellant’s unauthorized absence from duty was willful and deliberate.
The Inquiry Officer has also not held that appellant’s absence from duty
was willful and deliberate. It is neither case of the Disciplinary
Authority nor the Inquiry Officer that the medical reports submitted by
the appellant were forged or fabricated or obtained for any
consideration though he was not ill during the said period. In absence
of such evidence and finding, it was not open to the Inquiry Officer or
the Disciplinary Authority to disbelieve the medical certificates issued
by the Doctors without any valid reason and on the ground of 24 days
delay.
16. In view of the
observation made above, the order passed by the Division Bench of the
High Court cannot be upheld. We, accordingly, set aside the impugned
judgment and order dated 10th May, 2012 passed by the Division Bench of
the High Court in D.B. Civil Special Appeal (Writ) No.850 of 2009 and
upheld the order passed by the learned Single Judge dated 31st March,
2009 in S.B. Civil Appeal Writ Petition No.1702 of 1995. The respondents
are directed to implement the direction and order dated 31st March,
2009 issued by the learned Single Judge within four weeks from the date
of receipt of copy of this judgment.
17. The appeal is allowed with aforesaid observations and directions. No costs.
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