Devarajan G. v. The Central Govt. Industrial Tribunal-cum-Labour Court, Ernakulam and Canara Bank

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** **WA.No. 765 of 2014 () IN WP(C).30466/2007** **------------------------------------------AGAINST THE ORDER/JUDGMENT IN WP(C) 30466/2007 of HIGH COURT OF KERALA DATED 19-11-2013** **.............................** **APPELLANT(S)/PETITIONER :** **----------------------------------------** **DEVARAJAN G., 35/78, WARRIER COTTAGE, PALARIVATTOM, NOW RESIDING AT 'PADMAVILAS', MUNDAKKAL WEST, KOLLAM - 1.** ## **BY ADV. SRI.N.RADHAKRISHNAN** **RESPONDENT(S)/RESPONDENTS :** **-----------------------------------------------** **1. THE CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM - 682 031.** **2. CANARA BANK REP. BY ITS DY.GENERAL MANAGER, CIRCLE OFFICE, STAFF SELECTION (W), SPENCER JUNCTION, THIRUVANANTHAPURAM - 695 008.** **R2 BY ADV. SRI.P.GOPINATH** **R1 BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.M.GOPIKRISHNAN NAMBIAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AMV** **: 2 :** ## **WA.No. 765 of 2014 () IN WP(C).30466/2007** ## **APPENDIX** **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPY OF AWARD IN I.D.NO.185/2006 PASSED BY THE 1ST RESPONDENT DATED 13.06.2007. EXT.P2. : COPY OF THE CHARGE SHEET ISSUED TO THE PETITIONER BY THE 2ND RESPONDENT. EXT.P3. : COPY OF THE LEAVE APPLICATION DATED 03.11.1995 WHICH IS MARKED AS EXT.ME.17 IN THE DOMESTIC ENQUIRY. EXT.P4. : COPY OF COMMUNICATION DATED 13.03.1992 ISSUED TO THE PETITIONER WHICH IS MARKED AS EXT.ME.41 IN THE DOMESTIC ENQUIRY. EXT.P5. : COPY OF THE ENQUIRY REPORT. EXT.P6. : COPY OF THE RELEVANT PORTION OF THE CANARA BANK SERVICE CODE.** **RESPONDENTS EXHIBITS : NIL** ## **/TRUE COPY/** **P.A.TO JUDGE** **AMV** ## **K.SURENDRA MOHAN & P. SOMARAJAN, J J.** **................................ W.A.No.765 of 2014 ........................................** Dated this the 30[th] day of January, 2017 ## **JUDGMENT** ## **P.SOMARAJAN, J** This appeal is by the appellant/petitioner against the judgment dated 19.11.2013 in W.P.(C) No.30466 of 2007. The issue involved is with respect to a disciplinary action against the appellant/petitioner, who was serving as a clerk in the 2[nd] respondent Bank. Charge was framed against the appellant/petitioner on the allegation of misconduct of willful disobedience of lawful and reasonable orders issued by the competent authority, habitual absence from the duties without adhering to the rules and acting against the interest of the Bank. The domestic enquiry culminated in a report submitted by the Enquiry Officer before the Disciplinary Authority and the Disciplinary Authority on hearing the appellant/petitioner and on compliance of the requirement found no reason to differ with the finding of the Enquiry Officer and as such punishment of discharge with superannuation benefits was imposed. Against the same, an appeal was preferred before the competent authority and the competent authority, on re-appreciation of facts and evidence and the formalities to be complied with, confirmed the order passed by the Disciplinary Authority and the W.A.No.765 of 2014 2 punishment imposed. The matter was unsuccessfully takes up before the first respondent. Thereon, a writ petition was filed under Article 226 of the Constitution of India in W.P.(C) No.30466 of 2007 and a learned single Judge of this Court, on hearing the parties, dismissed the writ petition by its judgment dated 19.11.2013. Aggrieved by the same, this writ appeal is preferred before this Court. 2. Heard Sri.N.Radhakrishnan, learned counsel appearing for the appellant/petitioner, Sri.N.Nagaresh, learned ASGI for the 1[st] respondent and Sri.L.K.Nandakumar, learned Senior counsel for the 2[nd] respondent. 3. The matter in dispute is really with respect to the proceedings initiated by the Disciplinary Authority against the appellant/petitioner, who was serving as a clerk in the 2[nd] respondent Bank. An Enquiry Officer was appointed, who in turn conducted enquiry proceedings and submitted the report. There were three charges against the appellant/petitioner. First charge was found against the appellant/petitioner and 2[nd] and 3[rd] charge were found in favour of the appellant/petitioner and hence the Disciplinary Authority proceeded on the 1[st] charge on the allegation of willful disobedience of the lawful and reasonable orders of superiors and of gross misconduct which W.A.No.765 of 2014 3 would fall under clause 3(d) of Chapter XI of the Canara Bank Service Code and proceeded with the matter against the appellant/petitioner by issuing notice as mandated and after hearing, and on considering his explanation, imposed punishment of discharge from service with superannuation benefits. The main challenge against the said order in the appeal is with respect to dis-proportionality of the punishment imposed on the appellant/petitioner. The learned counsel for the appellant/petitioner relied on and took support from three decisions rendered by the Apex Court in **Kailash Nath Gupta vs. Enquiry Officer, (R.K.Rai), Allahabad Bank and others (2003) 9 SCC 480** , **Mavji C. Lakum vs. Central Bank of India (2008) 12 SCC 726** and **Jagdish Singh vs. Punjab Engineering College and others (2009) 7 SCC 301** and submitted that the learned single Judge had not gone into the question of proportionality of the punishment imposed. 4. This is a case wherein the appellant disobeyed the orders of the 2[nd] respondent on three prior occasions and proceedings were initiated against him for unauthorized absence and the stoppage of increment was imposed on him thrice. Despite all these there was no change in his attitude, which is well evident from the fact that he went away from the Bank, by merely putting a leave application on getting a transfer order from the Bank without W.A.No.765 of 2014 4 obeying the transfer order issued. He had not even cared to know about the order, if any, passed on the leave application submitted by him before the competent authority. He went away from the Bank simply submitting a leave application for three months that too without complying the requirements as mandated under the Bank Code. 5. The decision rendered by the Apex Court in **Kailash Nath Gupta vs. Enquiry Officer, (R.K.Rai), Allahabad Bank and others (2003) 9 SCC 480** would not in anyway help the appellant/petitioner herein, as in the present case this is the 4[th] time in which the appellant/petitioner went away from the Bank without getting a sanctioned leave from the competent authority which would come under the expression 'unauthorized abstention and habitual abstention'. The decision reported in Kailash Nath Gupta (cited supra) stands on a different footing. In that case, there is only a single incident in connection with the commission of procedural irregularity. It is a case wherein willful abstention from the duty without having the leave sanctioned by the authorities is involved and there are three cases of same nature reported against the appellant/petitioner. 6. Insofar as the decision rendered by the Apex Court in **Jagdish** ## **Singh vs. Punjab Engineering College and others (2009) 7** W.A.No.765 of 2014 5 **SCC 301** is concerned, it is with respect to the dismissal of a sweeper from service on account of absence on four spells totaling to fifteen days within a period of two months. The ground under which the absence occurred was also considered and satisfied that it was in connection with the problem faced by his daughter. It was also reported that there was no unauthorized absence by the said person on any previous occasion and it was found that it was not intentional. The legal dictum laid in that decision or the factual situation involved in that decision cannot be taken into consideration in the present case as it stands on a different footing. 7. In the present case, what is involved is the unauthorized absence by the appellant/petitioner without having a sanctioned leave that too at the time when he was transferred to some other place. He went away from the Bank by submitting a leave application for three months and thereby disobeyed the transfer order issued. On three other occasions, the very same attitude was taken by the said employee and it would definitely come under the purview of disobedience of the order passed by the superior officer. It has to borne in mind that Bank is having many transactions that too with limited employees and absence of one employee for a long period of three months and repetition of the same attitude by the employee would be prejudicial to the W.A.No.765 of 2014 6 interest of the Bank. The learned single Judge of this Court has applied the law in force in proper perspective. In the result, we find nothing wrong with the decision of the learned Single Judge. Accordingly, the writ appeal is dismissed, but without costs. Sd/- **K.SURENDRA MOHAN, JUDGE** sd/- **P.SOMARAJAN, JUDGE** AMV/03/02/2017