W.P.(C).No.6576/11

W.P.(C).No.6576/11 1 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **THURSDAY, THE 27TH DAY OF FEBRUARY 2020 / 8TH PHALGUNA, 1941** ## **WP(C).No.6576 OF 2011(V)** ## **PETITIONER:** |**1**|**K.BALRAJ**| |---|---| ||**18/849-A, MITHILA,SAMOOHAM ROAD, CALICUT - 673**| ||**002, REPRESENTED, BY HIS FATHER AND POWER OF**| ||**ATTORNEY HOLDER SRI.GOVINDANKUTTY, S/O. I.G.**| ||**MENOKI,, RESIDING AT MITHILA, SAMOOHAM ROAD,**| ||**CALICUT - 673 002(DIED)**| |**2**|**K.GOVINDANKUTTY**| ||**AGED 68 YEARS**| ||**S/O.I.G.MENON, RESIDING AT MITHILA, SAMOOHAM**| ||**ROAD, CALICUT - 673002.**| **ADDITIONAL SECOND PETITIONER IMPLEADED AS PER ORDER DATED 09.04.15 IN IA 5321/15.** **BY ADVS. SRI.K.N.SASIDHARAN NAIR SRI.LEO GEORGE** ## **RESPONDENTS:** |**1**|**GOVERNMENT OF INDIA**| |---|---| ||**REPRESENTED BY THE SECRETARY, , MINISTRY OF**| ||**SOCIAL JUSTICE AND EMPOWERMENT, SHASTRI BHAVAN,**| ||**NEW DELHI - 100 001.**| |**2**|**THE CHIEF COMMISSIONER FOR PERSONS**| ||**WITH DISABILITIES, SAROJINI HOUSE, 6, BHAGWAN**| ||**DAS ROAD, NEW DELHI - 110 001**| W.P.(C).No.6576/11 2 - **3 PUNJAB NATIONAL BANK REPRESENTED BY ITS CHAIRMAN-CUM-MANAGING, DIRECTOR, PUNJAB NATIONAL BANK,, BHIKAJI CAMA PLACE, NEW DELHI - 110 007.** - **4 CIRCLE HEAD, PUNJAB NATIONAL BANK HUMAN RESOURCES DEVELOPMENT DEPARTMENT, KOZHIKODE - 673 001.** - **5 ASSISTANT GENERAL MANAGER (DISCIPLINARY AUTHORITY), HUMAN RESOURCES, DEVELOPMENT DEPARTMENT, PUNJAB NATIONAL BANK, CIRCLE OFFICE, KOZHIKODE - 673 001.** - **6 APPELLATE AUTHORITY( DISCIPLINARY PROCEEDINGS), PUNJAB NATIONAL BANK, CIRCLE OFFICE, KOZHIKODE - 673 001.** - **7 SENIOR MANAGER PUNJAB NATIONAL BANK CHAMAKKADA, KOLLAM,, KERALA - 691 001.** - **R1 BY ASSISTANT SOLICITOR GENERAL R1 BY ADV. SRI.ALEX VARGHESE CGC R1 BY ADV. SRI.P.PARAMESWARAN NAIRASG OF INDIA R1 BY ADV. SMT.PREETHI RAMAKRISHNAN R1 BY ADV. SRI.P.RAMAKRISHNAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25-11-2019, THE COURT ON 27-02-2020 DELIVERED THE FOLLOWING:** W.P.(C).No.6576/11 3 ## **JUDGMENT** **Dated this the 27[th] day of February 2020** - 1.This writ petition is filed with the following prayers:- “i) issue a writ of certiorari or any other appropriate writ or order calling for the records leading to Exhibits P13, P14 and P16 orders of the bank and quashing the same. ii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the third respondent to reinstate the petitioner in the service of the bank from 22/2/2004 as indicated in Exhibit P15 proceedings of the second respondent with backwages and continuity of service. Iii) issue a writ of mandamus or any other appropriate writ, direction or order commanding the third respondent to accommodate the petitioner in any of the offices of the third respondent nearest to the petitioner's residence in Calicut by creating a supernumerary post, if necessary, until a suitable post is available under the third respondent nearest to the petitioner's residence in Calicut.” - 2.Heard the learned counsel for the petitioner and the learned Central Government Counsel appearing for the respondents. - 3.It is submitted that the petitioner had joined service in the Kollam branch of the erstwhile Nedungadi Bank as Peon on W.P.(C).No.6576/11 4 1.10.2002. It is stated that after having worked for more than one and a half years, he fell sick and proceeded on medical leave from 22.2.2004. He was diagnosed with Mithocondrial Cytopathy and treatment had to be continued. It is stated that he reported for duty with medical fitness certificate on 23.01.2007. He was not permitted to join duty. It is stated that since the petitioner belongs to Kozhikode district and was in need of specialised care and family support, he shifted his residence to his native place Kozhikode and submitted Exhibit P2 representation seeking transfer to Kozhikode. He had also requested assigning of a desk job to enable him to work. Exhibit P3 representation dated 23.6.2007 was also submitted before the 2[nd] respondent. While so, Exhibit P4 charge memo was issued to the petitioner alleging unauthorised absence since 22.4.2002. The petitioner submitted Exhibit P5 statement of defence denying the charges and contending that he had submitted proper leave applications. However, by Exhibit P6 order, an enquiry officer was appointed to conduct an enquiry. It is submitted that in the meanwhile the 2[nd] respondent acted on Exhibit P3 directed W.P.(C).No.6576/11 5 the bank to consider the request of the petitioner for a posting of convenience by Exhibit P8 and required the bank to submit a version with supporting documents, if the direction cannot be complied with. However, it is stated that the enquiry was continued and the request of the petitioner to shift the venue of enquiry to Kozhikode was also rejected by Exhibit P11 communication of the Enquiry Officer on 6.12.2008. It is submitted by the learned counsel for the petitioner that Exhibit P12 letter of the Presenting Officer would show that leave applications had been submitted till 23.1.2007. However, it is submitted that without considering the relevant aspects, the enquiry report was submitted and the 5[th] respondent imposed the punishment of discharge from service with superannuation benefits, namely Pension and/or Provident Fund and Gratuity without disqualification from future employment by Exhibit P13 dated 9.3.2009. - 4.It is submitted that the petitioner preferred an appeal against Exhibit P13 and the same was dismissed by Exhibit P14. It is submitted that after Exhibit P14 order, the complaint W.P.(C).No.6576/11 6 preferred by the petitioner before the 2[nd] respondent came up for hearing and was disposed of by Exhibit P15 proceedings dated 26.5.2010. It is stated that it was found that the petitioners were entitled to protection under Section 47(i) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 and the bank was directed to reconsider its decision imposing the penalty of discharge. However, the bank by Exhibit P16 has held that the petitioner was not entitled to protection under Section 47(i) of the Act. The petitioner challenges Exhibits P13, P14 and P16 orders of the bank. During the pendency of this writ petition, the petitioner passed away and his father was impleaded as the petitioner to conduct the case. - 5.A detailed counter affidavit has been placed on record by respondents 3 to 7. It is submitted that the punishment imposed on the petitioner by Exhibit P13 was imposed in terms of the bi partite settlement signed in terms of Section 18 of the Industrial Disputes Act, 1947 and the remedy of the employee was to challenge the order before the Industrial W.P.(C).No.6576/11 7 Tribunal. It is denied that the petitioner was a person with disability as defined with Section 2(f) of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995. Exhibit R3(a) Medical Certificate produced by the petitioner at the time of his appointment is relied on to contend that the petitioner had joined service of the Nedungadi bank suppressing his medical condition. It is stated that the petitioner had availed leave immediately after joining service and remained absent from duty. It is stated that he had either submitted leave applications claiming that he was undergoing treatment at the National Institute of Mental Health and Neuro Sciences, Bangalore and had produced Exhibits R3(b) and R3(c) discharge summaries. It is further stated that he continued to avail frequent leave without submitting any applications in advance and a complaint to that effect was sent by the Manager of the Chamakkada Branch by Exhibit R3(d) dated 25.4.2003. It is stated that the petitioner had medical conditions even before joining the service of the erstwhile Nedungadi Bank which was taken over by the 3[rd] respondent bank on 1.2.2003. It is W.P.(C).No.6576/11 8 ## stated at paragraphs 8 and 9 of the counter affidavit as ## follows:- “8. The petitioner was continuously absent from service from 22/2/2004 to 23/1/2007. The averment in paragraph 2 that the bank had not rejected the leave application submitted by the petitioner is incorrect and denied. It is pertinent to point out here that the leave which is due to an employee can be availed if so permitted. However, it was proved during the enquiry that there were no leaves available to the credit of petitioner and hence, sending a leave application does not make his absence authorized. Since, there were no leaves available to the petitioner, as such; his absence from the duty was totally unauthorized. 9. Exhibit P-l is not a fitness certificate. The petitioner had wanted to resume duties on the basis of Exhibit P-l on a wheel chair. As it was impossible for the petitioner to perform his duties as a peon in the branch from a wheel chair, he had been asked to produce a certificate of complete fitness. The petitioner had not produced any such certificate and had instead sent Exhibit P- 2 representation seeking transfer to Kozhikode. But as he was continuing on unauthorized absence, Exhibit P-4 charge memo had been served on him.” 6.It is submitted that the enquiry officer after conducted the due enquiry had found that the petitioner had been unauthorisedly absent and that there was no proper application for leave W.P.(C).No.6576/11 9 submitted at the relevant time. It is, therefore, contended that the proceedings had been finalised in accordance with Exhibits P13 and P14 orders and that the recommendation in Exhibit P15 therefore had no winding effect. However, the request of the petitioner was reconsidered and Exhibit P16 proceedings had been issued. It is contended that no question of discrimination arises in the instant case, since the petitioner was an employee who had procured employment suppressing his pre-existing illness and there was no question of denial of employment or acquisition of the disability during service. 7.The learned counsel for the petitioner places reliance on Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995. The decisions of the Apex Court in Jeeja Ghosh and another v. Union of India and others [(2016)7 SCC 761], Syed Bashir -Ud-Din Qadri v. Nazir Ahmed Shah and others [(2010) 3 SCC 603], Geetaben Ratilal Patel v. District Primary Education Officer [(2013) 7 SCC 182], State of Madhya Pradesh v. W.P.(C).No.6576/11 10 Narmada Bachao Andolan and another [(2011) 7 SCC 639] as well as the provisions of the convention of rights of persons with disabilities are relied on to contend that the services of a disabled person cannot be dispensed with in view of the statutory protection granted in Section 47. 8.I have considered the contentions advanced on either side. The case of the petitioner is that he was appointed in the erstwhile Nedungadi Bank on 1.10.2002. He states that he had applied for medical leave from 22.4.2004 and had reported back to duty on 23.1.2007, but was not allowed to rejoin duty. He relies on Section 47 of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995 on the contention that he had acquired disabilities including locomotor disability during his service in the Nedungadi Bnak. The respondents have produced Exhibit R3(a) to show that the petitioner had not disclosed any disability at the time of appointment. However, later, the petitioner himself had produced Exhibit R3(c) discharge summary from the National Institute of Mental Health and W.P.(C).No.6576/11 11 Neuro Sciences, Bangalore. Exhibit R3(c) shows that the petitioner had been treated for psychiatric problems in 1996 and that his condition improved. It is stated that petitioner developed difficulty in walking which increased progressively and since one year he started falling because of imbalance and he was unable to stand without support. The contention, therefore, is that the petitioner was aware of his condition even when he joined service, but he had joined service of the bank suppressing his physical condition. It is also submitted that Exhibit R3(d) had also been issued to the petitioner on 25.4.2003 warning him of disciplinary action, if he does not attend office regularly. It is further submitted that the petitioner had not suffered any prejudice due to the action of the respondents in denying the request for change of venue of enquiry to Kozhikode. 9.Having considered the contentions advanced, I am of the opinion that the petitioner, who has participated in a disciplinary enquiry on the basis of a memo of charges issued alleging unauthorized absence cannot turn around and W.P.(C).No.6576/11 12 contend that such an enquiry ought not to have been initiated against him at all. The petitioner had been appointed as Peon in the erstwhile Nedungadi Bank in the year 2002. It is an admitted fact that he had been absent from work from 22.4.2002, In Exhibit P5 which is the reply submitted to memo of charges, the petitioner specifically submitted that his absence was not unauthorised and that it was only due to his disease that he was unable to attend duties. He claimed that he had submitted application for leave to the branch on the strength of medical certificates. An enquiry was conducted on the basis of the charge memo and the enquiry officer on examination of the evidence adduced, found that the charge of unauthorised absence stood proved. However, the punishment imposed was only discharge with superannuation benefits without disqualification from future employment. The contention of the petitioner is that the disciplinary proceedings conducted against him for unauthorised absence as well as Exhibit P16 order are unsustainable, in view of the provision of the Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act,1995. The W.P.(C).No.6576/11 13 respondents have raised a specific contention that the petitioner's disabilities were not acquired while in service and that the disability was suffered by him before he entered service and was suppressed by him. The question of unauthorised absence has apparently been examined in the enquiry and it was found that the petitioner's absence from 22.4.2004 was unauthorised. 10.In the above view of the matter, I am of the opinion that the questions of facts which have been decided in the disciplinary proceedings cannot be gone into by this Court on a re appreciation of the evidence. The question whether the petitioner had a pre-existing illness at the time when he entered service is also a clear question of fact which cannot be considered in these proceedings. In case the petitioner has any complaint with regard to the non-compliance with Exhibit P15 directions, it was for the petitioner to have taken up such matter in appropriate legal proceedings. In view of the fact that the original petitioner has passed away and since the punishment imposed was only termination with 14 W.P.(C).No.6576/11 superannuation benefits, I am of the opinion that no meaningful orders can be passed in this writ petition. The writ petition, therefore, fails and the same is accordingly dismissed. **==> picture [27 x 12] intentionally omitted <==** **Anu Sivaraman, Judge** sj W.P.(C).No.6576/11 15 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE MEDICAL FITNESS CERTIFICATE ISSUED BY PROFESSOR OF NEUROLOGY, MEDICAL COLLEGE HOSPITAL, TRIVANDRUM DATED 21.01.2007.** - **EXHIBIT P2 TRUE COPY OF THE REPRESENTATION SUBMITTED TO THE FIFTH RESPONDENT DATED 14.06.2007.** - **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE SECOND RESPONDENT DATED 23.06.2007.** - **EXHIBIT P4 TRUE COPY OF THE CHARGE SHEET ISSUED BY THE FIFTH RESPONDENT DATED 06.10.2008.** - **EXHIBIT P5 TRUE COPY OF THE STATEMENT OF DEFENCE SUBMITTED BY THE PETITIONER IN RESPONSE TO EXHIBIT P4 CHARGE SHEER DATED 16.10.2008.** - **EXHIBIT P6 TRUE COPY OF THE ORDER ISSUED BY THE FIFTH RESPONDENT CONVEYING HIS DECISION TO HOLD AN ENQUIRY AGAINST THE PETITIONER DATED 20.10.2008.** - **EXHIBIT P7 TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER BEFORE THE FIFTH RESPONDENT DATED 6.11.2008.** - **EXHIBIT P8 TRUE COPY OF THE ORDER PASSED BY THE SECOND RESPONDENT IN CASE NO.1022588 DATED 10.11.2008.** **EXHIBIT P9** **TRUE COPY OF OM.NO.AB 14017/41/90-ESTT. (RR) AND OM NO.AB 14017/16/2002ESTT(RR) OF THE GOVERNMENT OF INDIA DATED 10.05.1990.** W.P.(C).No.6576/11 16 **EXHIBIT P10** **EXHIBIT P11** - **EXHIBIT P12** - **EXHIBIT P13** - **EXHIBIT P14** - **EXHIBIT P15** **EXHIBIT P16** **TRUE COPIES OF OM NO.AB 14017/41/90ESTT(RR) AND OM.NO.AB 14017/16/2002ESTT(RR) OF THE GOVERNMENT OF INDIA, DATED 10.05.1990 AND 13.3.2002.** **TRUE COPY OF THE COMMUNICATION OF THE ENQUIRY OFFICER DATED 6.12.2008.** - **TRUE COPY OF THE LETTER ADDRESSED BY THE PRESENTING OFFICER OF THE BANK TO THE ENQUIRY OFFICER DATED 13.1.2008.** - **TRUE COPY OF THE ORDER ISSUED BY THE FIFTH RESPONDENT DATED 18.5.2009.** - **TRUE COPY OF THE ORDER ISSUED BY THE APPELLATE AUTHORITY DATED 18.5.2009.** **TRUE COPY OF THE RECORD OF PROCEEDINGS OF THE SECOND RESPONDENT IN CASE NO.10225588 DATED 26.5.2010.** **TRUE COPY OF THE ORDER PASSED BY THE FOURTH RESPONDENT DATED 5.8.2010.** True copy PS to Judge