Donald Brian Saimon v. Andhra Bank and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 24TH DAY OF NOVEMBER 2016/3RD AGRAHAYANA, 1938** **WP(C).No. 18186 of 2014 (W) ----------------------------** **PETITIONER(S): -------------** **DONALD BRIAN SAIMON,** **S/O.SIMON, AGED 55, DEW DROP, MARKET ROAD, THANGASSERY, KOLLAM, NOW RESIDING AT APARTMENT 23, ELLESSLIE GARDENS, I A HARRISON ROAD, MT WILLINGDON, AUCKLAND 1060 NEWZEALAND REPRESENTED BY HIS POWER OF ATTORNEY HOLDER T.P.JOSEPH, S/O.PETER, THAIPARAMBIL HOUSE, NO.14-1397-A, C.A.JOSEPH ROAD, THOPPUMPADY P.O. KOCHI, ERNAKULAM DISTRICT.** **BY ADVS.SRI.ALEXANDER JOSEPH** **SRI.A.J.RAJU** **RESPONDENT(S):** - **--------------** **1. ANDRA BANK** - **REPRESENTED BY ITS MANAGING DIRECTOR, HEAD OFFICE, SAIFABAD, HYDERABAD - 500 004.** **2. THE EXECUTIVE DIRECTOR,** - **ANDHRA BANK, HEAD OFFICE, SAIFABAD, HYDERABAD 500 004.** **3. THE GENERAL MANAGER (HR),** - **HUMAN RESOURCE DEPARTMENT (IR) ANDHRA BANK, HEAD OFFICE, SAIFABAD, HYDERABAD - 500 004.** **4. THE DEPUTY GENERAL MANAGER AND DISCIPLINARY AUTHORITY, HUMAN RESOURCE DEPARTMENT (IR) ANDHRA BANK, HEAD OFFICE, SAIFABAD, HYDERABAD 500 004.** **5. THE MANAGER,** - **ANDHRA BANK, KOLLAM BRANCH, SKP BUILDINGS, BEACH ROAD, KOLLAM - 691 001.** **R1-R3,R5 BY ADVS. SRI.K.RAMAKUMAR (SR.) SRI.T.RAMPRASAD UNNI** **SRI.M.MANOJKUMAR (CHELAKKADAN) SMT.ASHA BABU** **SRI.G.RENJITH** **SMT.AMMU CHARLES** **R4 BY ADV. SRI.S.M.PRASANTH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17-11-2016, THE COURT ON 24-11-2016 DELIVERED THE FOLLOWING:** **K.V.** ## **WP(C).No. 18186 of 2014 (W)** ## **----------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** ## **-----------------------** **EXT.P-1: TRUE COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT DATED 14.12.2008 EXT.P-2: TRUE COPY OF LEAVE APPLICATION DATED 23.12.2008. EXT.P-3: TRUE COPY OF THE LETTER DATED 6.1.2009 OF THE ASSISTANT GENERAL MANAGER. EXT.P-4: TRUE COPY OF THE ORDER DATED 4.2.2009 OF THE CHIEF MANAGER, ZONAL OFFICE, CHENNAI. EXT.P-5: TRUE COPY OF THE CHARGE SHEET DATED 6.3.2009. EXT.P-6: TRUE COPY OF THE ANDHRA BANK (OFFICERS) SERVICE REGULATIONS 1982. EXT.P-7: TRUE COPY OF THE ANDHRA BANK OFFICER EMPLOYEES' (CONDUCT) REGULATIONS 1981. EXT.P-8: TRUE COPY OF ANDHRA BANK OFFICER EMPLOYEES' (DISCIPLINE AND APPEAL) REGULATIONS 1981. EXT.P-9: TRUE COPY OF THE ORDER DATED 30.11.2009. EXT.P-10: TRUE COPY OF THE APPEAL FILED DATED 21.12.2009 SUBMITTED BEFORE THE 3RD RESPONDENT. EXT.P-11: TRUE COPY OF THE ORDER DATED 19.2.2010 OF THE 3RD RESPONDENT EXT.P-12: TRUE COPY OF THE NOTICE DATED 12.4.2010 ISSUED BY THE 4TH RESPONDENT. EXT.P-13: A TRUE COPY OF THE NOTICE DATED 24.6.2010 ISSUED UNDER SECTION 13(2) OF THE SARFAESI ACT. EXT.P-14: TRUE COPY OF THE REVIEW PETITION DATED 10.5.2013. EXT.P-15: TRUE COPY OF THE PETITION FOR CONDONING DELAY. EXT.P-16: TRUE COPY OF THE JUDGMENT DATED 13.3.2014 IN WPC NO.23543 OF 2013. EXT.P-17: TRUE COPY OF THE NOTICE DATED 8.5.14 OF THE ASST. GENERAL MANAGER. EXT.P-18: TRUE COPY OF THE APPLICATION DATED 27.5.14. EXT.P-19: TRUE COPY OF THE ARGUMENT NOTE OF THE PETITIONER.** **-2-** **-2-** **WPC NO 18186 OF 2014:** ## **---------------------** **EXT.P-20: TRUE COPY OF THE LETTER DATED 13.6.2014 OF 2ND RESPONDENT. EXT.P-21: TRUE COPY OF THE ORDER DATED 5.6.14 OF 2ND RESPONDENT. RESPONDENT(S)' EXHIBITS NIL -----------------------** **/TRUE COPY/** **P.A.TO JUDGE** **K.V.** ## **ANU SIVARAMAN, J. ----------------------------------------------W.P(C).No.18186 of 2014 ----------------------------------------------Dated this the 24[th] November, 2016** ## **JUDGMENT** Heard learned counsel for the petitioner and the learned Senior Counsel appearing for the respondents. 2. The petitioner, while working as Deputy Manager in the 1[st] respondent Bank, was dismissed from service by Exhibit P9 order on charges of unauthorised absence and leaving the country without prior intimation and permission from the Bank. Though this writ petition is filed challenging the order of dismissal as well as the order passed in appeal and review, the only claim pressed before me is with regard to the proportionality of the punishment of dismissal imposed. 3. Learned counsel for the petitioner submits that he had 24½ years of service to his credit. It is not in dispute that the 1[st] respondent is a wholly owned by the Government of India. It is stated that on 31.8.2008, the youngest son of the petitioner died and the petitioner, finding it impossible to continue in service made Exhibit P1 application for voluntary retirement and Exhibit P2 application for leave. It is admitted that without awaiting orders, the petitioner went abroad. This conduct is attributed to the peculiar family circumstances. The respondents rejected those applications. It is also submitted that the respondents charge sheeted the petitioner for unauthorised absence 2 _**WP(C).18186/14**_ and he was dismissed from service. The appellate authority dismissed the appeal vide Exhibit P11 order. The petitioner submitted Exhibit P14 review and Exhibit P15 petition for condoning the delay in filing the review petition. This Court, as per Exhibit P16 judgment directed the 2[nd] respondent to consider Exhibit P14 review petition. As per Exhibit P21 order, the 2[nd] respondent rejected the review petition. 4. Learned counsel for the petitioner submits that the respondents ought to have allowed the petitioner to retire duly giving retirement benefits due to him. The punishment of dismissal imposed on the petitioner is disproportionate and excessive. Exhibit P21 order is without application of mind and is liable to be set aside. Exhibit P21 is under challenge in this writ petition. Learned counsel for the petitioner relied on various decisions of the Apex Court reported in _**Rajinder Kumar v. State of Haryana and another**_ [2015 KHC 4652], _**Ishwar Chandra Jayaswal v. Union of India and others**_ [(2014)2 SCC 748], _**Surendra Prasad Shukla v. State of Jharkhand and others**_ [(2011)8 SCC 536], _**S.R.Tewari v. Union of India and another**_ [(2013)6 SCC 602] and _**Raghubir Singh v. General Manager, Haryana Roadways, Hissar**_ [(2014)10 SCC 301] to contend that dismissal being the severest of punishment which can be awarded to a delinquent employee in disciplinary proceedings, its imposition is to be after proper application of mind as to the necessity to such punishment. It is contended that the only offence alleged being 3 _**WP(C).18186/14**_ unauthorised absence and leaving the country without permission, the consideration of the appeal and review submitted by the petitioner in a proper manner should have resulted in the imposition of a lesser punishment. 5. The learned Senior Counsel appearing for the respondents would contend that the fact of unauthorised absence of the petitioner is admitted by the petitioner. It is stated that Exhibit P5 memo of charges was issued on 6.3.2009. Thereafter, entire disciplinary proceedings were conducted with notice issued to the last known address of the petitioner. The petitioner did not appear or place contentions at any stage of the enquiry. It is only after Exhibit P9 order of dismissal was sent to him that he preferred Exhibit P10 appeal raising contentions against the enquiry. All the contentions raised by the petitioner in Exhibit P10 appeal have been considered and Exhibit P11 order was passed. The petitioner thereafter remained silent for long. After a long delay, a review petition was attempted and this Court by Exhibit P16 judgment dated 13.3.2014 directed consideration of the review petition preferred by the petitioner. It is contended that by Exhibit P21 order dated 5.6.2014, a speaking and reasoned order has been passed adverting to each individual contention of the petitioner and the reasons for rejecting the same. Exhibits P9 and P11 orders were therefore upheld and the review was dismissed. In the above circumstances, it is contended that the contentions of the petitioner _**WP(C).18186/14**_ 4 regarding the proportionality of the punishment has also been considered by the Bank. The learned Senior Counsel contends that absentism is a serious misconduct and cannot be viewed lightly. The learned Senior Counsel placed reliance on a decision of the Apex Court reported in _**State of Rajasthan and another v. Mohd.Ayub Naz**_ [(2006)1 SCC 589] to contend that the offence of absentism warrants the ultimate punishment of removal from service. 6. I have considered the contentions advanced on either side. It is true that the petitioner had not participated in the enquiry conducted against him. The said enquiry does not appear to be vitiated by any error in procedure which would render it liable to interference under Article 226 of the Constitution of India. However, with regard to the proportionality of the punishment imposed on the petitioner, I am of the considered opinion that the mitigating circumstances pointed out by the petitioner have not gained the sympathetic consideration of the respondents which is warranted, going by the binding decisions of this Court as well as the Apex Court. In the above view of the matter, I am certain that at least at the stage of consideration of the review, the claim raised by the petitioner that the penalty should have been reduced as one of termination or removal from service which could enable the payment of terminal benefits to him ought to have been considered by the respondents. This apparently has not been done. I am of the view that the punishment imposed on the petitioner was 5 _**WP(C).18186/14**_ shockingly disproportionate to the offence alleged against him in view of the facts and circumstances of the present case. In the above circumstances, Exhibit P21 order, to the extent it confirms the penalty of dismissal from service awarded to the petitioner, is set aside. The competent among the respondents are directed to put the petitioner on notice and hear him exclusively on the question of proportionality of the punishment imposed and pass appropriate orders on the punishment to be awarded to the petitioner. This shall be done within a period of three months from the date of receipt of a copy of this judgment. If the petitioner is found entitled to any benefits on the basis of the orders so passed by the reviewing authority, the said amount shall be calculated and paid to the petitioner within three months thereafter. The writ petition is disposed of as above. **ANU SIVARAMAN JUDGE** _vgs_