ANWAR ALI vs UNION OF INDIA AND ORS
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of order: 3rd November, 2023
+ W.P.(C) 14316/2023 & CM APPL No. 56696/2023
ANWAR ALI ….. Petitioner
Through: Mr. I C Mishra, Advocate.
versus
UNION OF INDIA AND ORS ….. Respondents
Through: Mr. Sushil Kumar Pandey, SPC with Mr. Sahaj Garg, Advocate for R-1.
Mr. Rajat Arora , Ms. Sneh Vardhan and Mr. Ravi Ranjan Mishra, Advocates for R-2 and 3.
CORAM:
HON’BLE MR. JUSTICE CHANDRA DHARI SINGH
ORDER
CHANDRA DHARI SINGH, J (Oral)
1. The present petition has been filed on behalf of the petitioner, praying for the following reliefs:
(i)That this Honble Court kindly be pleased to quash the impugned order passed by respondent No.3 dated 19.01.1998 or modified & dated 27.04.2023 also be quashed and to pass the directions against the respondents to grant the entire retiral benefits out of his service period from 07.12.1972 to 19.01.1998 accordingly pension, gratuity, PF leave encashment be given to petitioner alongwith arrears with 18% interest and compensation.
(ii) That the respondents also be directed to release the entire amount alongwith 18% interest to petitioner as agreed by respondent No.3 ill impugned letter dated 27.04.2023, in interest of justice.
(iii) That the respondents also be directed that cost and compensation also be awarded to petitioner or any fit and proper directions also be passed as Hon’ble Court think fit and proper, in interest of justice.
2. The brief facts pertaining to petition are reproduced herein:
a) The petitioner was employed with the Bank of India i.e., respondent no.2 at the post of clerk at the Jamshedpur Branch, Bihar. The employment tenure of the petitioner commenced from 7th December, 1972 and on 16th September, 1981, the petitioner was promoted in Office Category.
b) Further, vide termination letter dated 19th January, 1998, issued by the Deputy Zonal Manager, the petitioner was dismissed from service on the grounds of unauthorised absenteeism from 17th January, 1996 to 24th January, 1996 and then again from 17th February, 1996 to 29th March 1996.
c) As per the aforesaid major penalty chargesheet order, penalty proceedings had been initiated against the petitioner by issuing Articles of Charge dated 28th May, 1997. The concerned authority issuing the penalty order found the written statement submitted by the petitioner to be unsatisfactory, as a result of which an enquiry was instituted.
d) In the report dated 29th November, 1997, submitted by the Inquiring Authority, the charges alleged against the petitioner stood proven and the said inquiry report was furnished to the petitioner as well, calling forth his representation on the inquiry findings within ten days from the date of receipt. However, no representation was made by the petitioner.
e) The petitioner preferred an appeal dated 25th March, 2000 against the said penalty order to Executive Director, however the same is alleged by the respondent no.2 that it was never delivered its office.
f) The petitioner made representations dated 9th January, 2000 and 20th June 2000 to the respondent no, 2, thereby, seeking retrial benefit. The said representation dated 9th January, 2000 to was replied by the respondent no. 3 vide reply dated 26th June, 2000 wherein the respondent no. 2 stated that the representation of the petitioner was replied vide order dated 5th February, 2000 at the address with the respondent vide registered post which was returned undelivered with the remark Left.
g) On 7th January, 2022, the petitioner made a last attempt to seek his retrial benefits, by making representations to respondent no. 2 and 3, however, no action has been taken by the respondents.
h) Pursuant to which, on 2nd February, 2023, the petitioner filed a writ petition bearing No. WP(C) 2532/2023 before the Coordinate Bench of this Court, which was disposed of vide order dated 28th February, 2023, with directions to the respondent to treat the writ petition as a representation and decide the same within six weeks from the date of the order by passing a reasoned/speaking order.
i) In compliance with the directions of the aforesaid order, the respondent no.3 served letter dated 27th April, 2023 upon the petitioner, whereby, it was communicated to the petitioner that during the course of his employment, the petitioner had availed three loans from the bank and the same remain unclosed and in addition to the loans, the petitioner and his wife had availed certain facilities and loans from the respondent bank and the same remains unclosed till date.
j) The aforesaid letter further directed the petitioner to submit an authority letter favouring the appropriate dues with up to date interest of Employee Contribution Provident Fund (hereinafter EPF) and Gratuity will be calculated after adjusting the outstanding amount due to the bank.
k) Aggrieved by the letter dated 27th April, 2023 the petitioner has preferred the present writ petition.
3. Learned counsel appearing on behalf of the petitioner submits that the letter dated 27th April, 2023 is in violation of the principles of natural justice and is contrary to the settled principles of law.
4. It is submitted that the major penalty Chargesheet dated 19th January, 1998 was passed by the Deputy Zonal Manager, however the authority to pass a removal order lies with the General Manager.
5. It is submitted that the quantum of punishment awarded to the petitioner is harsh and the punishment for short unauthorised absenteeism, maximum punishment should not be given.
6. It is submitted that the petitioner could not challenge the major penalty order dated 18th January, 1998 as he was suffering from some mental illness at the time.
7. It is submitted that the letter dated 27th April, 2023 has been issued with mala fide intent to decline the petitioners leave encashment and disentitle him from the pension.
8. It is further submitted that the allegation of corruption levelled against the petitioner, is false as the same was never mentioned in the termination letter dated 18th January, 1998, thereby, not a ground for his termination.
9. In view of the foregoing submissions, it is prayed that the present petition may be allowed and orders dated 18th January, 1998 and 27th April, 2023 may be quashed.
10. Per contra, learned counsel appearing on behalf of the respondents vehemently opposed the arguments advanced on behalf of the petitioner.
11. It is submitted that the letter dated 27th April, 2023 was issued as per law and in compliance with the guidelines followed by the respondent no.2.
12. It is submitted that the said letter has been issued while complying with the guidelines issued by the Indian Banks Association (hereinafter IBA) as well as the order dated 28th February, 2023, passed by the Coordinate Bench by this Court in the writ petition bearing No. WP(C) 2532/2023
13. It is further submitted that the quantum of punishment accorded to the petitioner had been done after following the due process of inquiry and providing several opportunities to the petitioner to represent his case, however, due to no representation received, the respondents no. 2 and 3 were compelled to move forth with the punishment so awarded.
14. In view of the foregoing submissions, it is prayed that the instant petition may be dismissed, being devoid of any merit.
15. Heard the parties and perused the record.
16. It is the case of the petitioner that he is being wrongfully denied his retirement dues by the respondent no.2. It is contended that the letter dated 27th April, 2023, has been issued by the respondent no.2 with a mala fide intent to disentitle the petitioner from receiving his pensions and leave encashment.
17. In rival contentions it is submitted that the respondent nos. 2 and 3 have complied with the order dated 28th February, 2023, passed by this Court whereby, the respondents were directed to treat the writ petition bearing No. WP(C) 2532/2023, as a representation on behalf of the petitioner and pass a detailed order in lieu of the same. It is contended that the detailed order dated 27th April, 2023 was passed in compliance with the guidelines of the Indian Bank Association and therefore suffers from no illegality or arbitrariness.
18. At this juncture this Court deems it fit to analyse the order dated 19th January, 1998, 8th February, 2023, passed by this Court as well as the detailed order dated 27th April, 2023 passed by respondent no. 2 and 3.
19. The order dated 19th January, 1998 as per which the petitioner is terminated herein below :
1. Major penalty proceeding were initiated against Shri. Anwar Ali by issuing Articles of charge bearing against ZO:AKS:DA:331dated 28.05.97 and related documents in connection with the acts of misconduct alleged to have been committed by him during his posting as officer, first at Sandila Branch and thereafter at Zonal Office, Lucknow during the period January1996 till date of chargesheet. The written statement of defence dated 1.07.97 submitted by Shri. Anwar Ali was not satisfactory and accordingly. An enquiry was instituted on 26.7.97 to enquire into the charges leveled against Shri Anwar Ali. The Inquiring Authority, after holding the enquiry submitted his report dated29/11/97, holding the charges levelled against Shri Anwar Ali as proved. A copy of the inquiry Report was furnished to Shri Anwar Ali vide Memo No. 20: 1L:511:’1619 dated 5/9.12.97 by Regd.post AID in his New Delhi residential address calling forth his representation on the inquiry findings.
2. According to the said memo, Shri Anwar Ali was required to submit his representation on the Inquiry Findings within 10 days of receipt of the said Memo. Till date no such representation has been received from Shri Anwar Ali. Considering the fact that Shri Anwar Ali has not been attending the office in Lucknow and is residing in New Delhi at present and had not participated in the enquiry, the undersigned does not find it necessary to wait further for the representation of Shri Anwar Ali.
3. It was alleged in the charge sheet that Shri Anwar Ali, while posted at Sandila Branch, had remained unauthorisedly absent from duties from 17.1.96 to 24.1.96 and again started unauthorisedly absenting from duties from 17.2.96 having already left for New Delhi without prior permission from the Competent Authority ostensibly for joining the MBA course conducted by the absentia on transfer to Zonal Office Lucknow, he had never reported for duty to the Zonal Office; despite instructions to resume duties and continued to remain unauthorisedly absent till date, Shri. Anwar Ali, therefore, was charged for breach of Regulation 13 (1) and 3 (1) of Bank of India Officer Employees’ (Conduct) Regulations, for having unauthorisedly absent from duties, left the station without prior permission of the Competent Authority and also for having acted in a manner unbecoming of a bank officer, while joining the MBA Course conducted in New Delhi without Bank permission.
4. The inquiring authority in his report dated 29.11.97 has held all the allegations levelled against Shri Anwar Ali as proved and hence the charge levelled against Shri Anwar Ali as conclusively proved. Although, Shri Anwar Ali was given an opportunity to make a representation on the said inquiry findings and sufficient time was given to him for the said purpose, he was not bothered to submit his representation in writing to the undersigned so far, in the circumstances, the undersigned now proceeds to examine the inquiry findings to decide about its acceptance.
5. The undersigned has carefully perused the charge-sheet, written statement of defense, inquiry Proceedings including the oral and documentary evidences adducted in the enquiry, written brief of Presenting Officer and the enquiry findings. The undersigned finds that despite clear notice and several opportunities, Shri Anwar Ali has chosen not to attend the enquiry and co-operate in the completion of the same. As are sult of this, the inquiring Authority has no other option but in proceed ex-parte ultimately against Shri Anwar Ali. It is apparent on the record that Shri Anwar Ali has chosen to remain away from duties on the pretext of joining MBA course conducted in New Delhi when his posting was in Sandila Branch/Lucknow Zonal Office. Although, he has submitted a leave application seeking education leave from Feb 1996 to Dec 1997 was also turned down as there was no provision to grant such a long leave. Despite this, Shri Anwar Ali had chosen to leave the station and reside at Delhi without obtaining the permission of the Competent Authority. Despite clear cut instructions from the Bank advising him that his absence has been treated as unauhorised absence and instructing him to resume duties, Shri Anwar Ali has chosen not to act upon such lawful and reasonable instructions of the Bank. In fact he had continued to remain absent with impunity. I find him from the records that he had remained unauthorisedly absent from 17.1.96 to 24.1.96, while posted at Sandila Branch without Submitting leave application for the same and againfrom17.2.96 till date. Although, Sandila Branch had relieved him in absentia on 29.3.96 with instructions’ to report to the Zonal Office, he never complied with the same and has not reported to the Zonal Office till date. In the circumstances, the undersigned is fully convinced that Shri. Anwar Ali has breached Regulation13(1) and 3(1) of the Bank of India Officer Employees’ (Conduct)Regulations, 1979, The undersigned, therefore, accepts the Inquiry Findings to.
6. The act of misconduct proved against Shri Anwar Ali involves clear defiance of Bank’s lawful and reasonable instructions. As an officer of the Bank, he should have been punctual, instead he has been unauthorisedly absent from duty continuously for more than one year and ten months by now. Bank cannot afford to have such office decorum and discipline. In the circumstances, the undersigned in convicted that this is a fit case for imposing the harshest penalty of dismissal from Bank’s service on him.
The undersigned, therefore, hereby passes the following order:
ORDER
Shri Anwar Ali and is hereby awarded the Major Penalty of
‘dismissal from Bank’s Services which shall ordinally be a disqualification for future employment under Regulation 40 of
the Bank of India Officer Employees’ Discipline Appeal
Regulation, 1976 for the acts of misconduct proved against him.”
7. This order shall take immediate effect.”
20. From the perusal of the aforesaid order, it is evident that the petitioner was absent from job unauthorisedly and without giving any leave application during the month of 17th January, 1996 to 24th January, 1996 during the time he was Sandila Branch of the respondent. Moreover, the petitioner did not submit any leave application till 17th February, 1996.The said act of the petitioner amounted to violation of the employees code of conduct rule of the bank.
21. Moreover, despite being given an opportunity to make representation the petitioner did not represent his case, neither the petitioner attended the enquiry nor cooperated in the competition of the said enquiry.
22. Accordingly, the petitioner was awarded dismissal from the service and disqualified for future employment under Regulation 4 of the Bank of India Officer Employees Discipline Appeal Regulation, 1976.
23. The relevant portion of the order dated 28th February, 2023 has been reproduced herein:
10. I have heard the learned counsels for the parties. In my view, it would be appropriate, at this stage, to direct Respondents No. 2 and 3 to treat the writ petition as a representation and decide the same within six weeks from today, in accordance with law and the Regulations governing the parties to the lis. The representation shall be decided by a reasoned and speaking order, which shall be communicated to the Petitioner, who is at liberty to take recourse to remedies, in accordance with law, in case of any surviving grievance.
11. It is made clear that this Court has not expressed any expression/opinion on the merits of the case including the objection of the Respondents that the writ petition is barred by delay and laches, which is left open to be adjudicated by the Appropriate Forum, in case the Petitioner takes recourse to further legal proceedings.
12. Writ petition is disposed of, in the aforesaid terms.
24. A bare perusal of the aforesaid order makes it clear that the Court had indeed issued directions to the respondents to treat the writ petition bearing No. WP(C) 2532/2023 as a representation made on behalf of the respondents and pass a detailed order, in accordance with law and appropriate guidelines, thereby, deciding the case of the petitioner.
25. Further, it is apposite to analyse the letter/ detailed order dated 27th April, 2023, whereby, the respondents decided the case of the petitioner vis-à-vis the retiral benefits due to him. The relevant portion of the same has been reproduced herein:
01.Major penalty of “Dismissal from Bank’s service” was imposed upon Shri Anwar Ali, Ex- Staff Officer for the acts of misconduct committed by him during his tenure at Bank’s Sandila branch and thereafter at Lucknow Zonal Office vide Penalty Order dated 19.01.1988 issued by the then Deputy Zonal Manager, U.P. Zone & Disciplinary Authority. The petitioner .preferred an appeal to the Zonal Manager, U.P. Zone & Appellate Authority which was never received by the Zonal Office. Thereafter, the petitioner filed Writ Petition.(C) No. 2532/2023 challenging the aforesaid Penalty Order
passed against him.
02. Vide its Order dated 28.02.2023, in Writ Petition (C) 2532/2023, filed by Shri Anwar Ali, The Honourable High Court of Delhi at New Delhi has directed as under:
“… In my view, it would be appropriate, at this stage, to direct Respondents NO.2 and 3 to treat the writ petition as a representation and decide the same within six weeks from today, in accordance with law and the Regulations governing the parties to the lis. The representation shall be decided by a reasoned and speaking order, which shall be
communicated to the Petitioner, who is at liberty to take recourse to remedies, in accordance with law, in case of any surviving grievance.”
03. Having perused the relevant documents in the matter, in compliance of the aforesaid Order dated 28.02.2023 of the Hon’ble High Court, the undersigned records his observations with respect to Writ Petition (C) 2532/2023 submitted before the Hon’ble High Court of Delhi at New Delhi, as under:
1. Upon perusal of the records of the case, it is observed that the petitioner was dismissed from services of the Bank since petitioner remained unauthorisedly absent from his duties from 17.01.1996 to 24.01.1996 and from 17.02.1996 to till date (Date of the penalty order, i.e. 19.01.1998). Further from records of the case it also observed that Ghaziabad Regional Office, had contacted the petitioner (at address 6/604, Zakir Nagar, New Delhi), who had mentioned that he was not sick at the moment and that he had applied for study leave vide application dated 28.01.1996 for the period February 1996 to December 1997. The said application was addressed to The Zonal Manager, UP Zone wherein the petitioner had mentioned his address during leave period (6/604, Zakir Nagar, New Delhi-110025).
Thereafter, Deputy Zonal Manager, UP Zone had sent a Memorandum Ref No. ZO:IL:511:1103 dated 08.10.1996 to Shri Anwar Ali, 6/604, Zakir Nagar, New Delhi – 110025. The memorandum mentioned that the petitioner was absent from Sandila branch after no leave was sanctioned on the basis of his application dated 28.01.1996. Sandila Branch had relieved the petitioner on 27.03.1996 to report to UP Zonal Office. The memorandum also included that since no such education leave existed under Bank’s rules, the petitioner’s request could not be acceded
and the petitioner was informed that he was treated as unauthorisedly absent from his duties and was advised to report to UP Zonal Office within a week of receiving this Memorandum. Another reminder was sent by the Zonal Manager, UP Zone vide Memorandum Ref No. ZO:IL:511/1509 dated 13.12.1996 to the Petitioner’s Residence in New Delhi (6/604, Zakir Nagar, New Delhi – 11(025), wherein, his unauthorized absence and the direction to report to UP Zonal Office was reiterated. It was further mentioned in the aforementioned memorandum that if the petitioner failed to comply, disciplinary proceedings would be initiated against him without notice.
Upon perusal of the records of the case, it is observed that the petitioner did not participate in inquiry proceedings as well as did not submit representation on findings of Inquiring Authority. The Petitioner could have presented his side and submitted evidences in relation to his submissions to Controlling Officer/Manager of Sandila Branch in the inquiry proceedings as well as by submitting representation (and enclosed evidences in annexures) to the inquiry findings, which he failed to do. Looking at the nature of lapses against the petitioner, the Disciplinary Authority was justified in passing the Order of Dismissal.
Contention of petitioner that The DZM (Deputy Zonal Manager) was not
competent to pass Penalty Order dated 19.01.1998, is not tenable. As per Bank of India Officer Employees’ (Discipline &Appeal) Regulations, 1976, Deputy Zonal Manager, was the disciplinary authority for officers in scale-I and II of zone. The petitioner was officer- scale I when he was dismissed on 19.01.1998.
2. Further, on perusal of the records, it is observed that Deputy Zonal Manager and Disciplinary Authority imposed major penalty of “dismissal” upon the petitioner. However, a Letter Ref No. ZO:VIG:721:1003 dated 30.11.2000 was sent to petitioner via ‘registered post with CC to HR Department, Lucknow Zone and IL Department, Head Office, wherein the petitioner was asked to submit claim papers towards terminal dues along with an authority letter favouring to appropriate/adjust dues with up to date interest payable by petitioner as mentioned in letter dated 05.02.2000 by 30.12.2000. However, the petitioner did not submit claim papers and authority letter to appropriate/adjust dues with up to date interest payable by petitioner. The Petitioner had availed following loans from the bank during his tenure and the present position of these loan accounts is as under:
In addition to the above mentioned 3 facilities, the petitioner (his wife Smt. Nasim Bano had taken 1 loan) had availed 4 facilities as follows:
Therefore the petitioner is requested to submit authority letter favouring to
appropriate/adjust dues with up to date interest payable by petitioner. The
calculation of employee contribution of provident fund and gratuity due to the petitioner is under process and final amount will be calculated after adjusting outstanding amount due to the bank as above. In terms of Regulation 22(1) of Bank of India (Employees’) Pension Regulations, 1995, an employee who is dismissed or removed, shall not qualify for pensionary benefits.
Since the petitioner’s services were terminated on the account of “dismissal”, the petitioner is not eligible for Privilege Leave Encashment as per IBA Advice.
26. The detailed order dated 27th April, 2023, has dealt with the petitioners case at length thereby stating that the procedure followed by the respondents was as per the guidelines of the IBA as well as the Bank of India (Employees) Pension Regulations, 1995. The respondent no.2 has also dealt with the contention of the petitioner that the Deputy Zonal Manager was not the competent authority to issue the termination letter dated 19th January 1998, thereby stating that as per the Bank of India Officer Employees’ (Discipline &Appeal) Regulations, 1976, the Deputy Zonal Manager, was the disciplinary authority for officers in scale-I and II and the petitioner was officer- scale I when he was dismissed on 19th January, 1998. The said detailed order/letter also highlights that the petitioner was provided with ample opportunities to file an appeal against the termination letter dated 19th January, 1998, however, the petitioner failed to represent his case before the inquiry authority and failed to participate in the inquiry proceedings. Further, the respondents provided the petitioner with yet another opportunity, thereby, issuing letter dated 30th November, 2000, whereby the petitioner was directed to submit his claim papers along with an authority letter, in order to claim his terminal dues, however, the petitioner failed to supply the said papers within the stipulated time period which ended on 30th December, 2000.
27. The respondents have also highlighted that the petitioner has a total of 7 loans, which remain open and unpaid and the terminal dues of the petitioner would be calculated after adjusting the outstanding amount payable to the bank as per the Bank of India (Employees’) Pension Regulations, 1995. It has been further highlighted that as per the said regulations, the petitioner was not entitled to any pensionary benefits, since the case of the petitioner was that of dismissal.
28. So far as the illegality surrounding the termination letter dated 19th January, 1998 and the detailed order/letter dated 27th April, 2023 is concerned, the petitioner seeks this Courts intervention, thereby, quashing the aforesaid letters for being issued illegally and arbitrarily. However, it is a well settled principle of law that the Courts writ jurisdiction is very narrow and the same must be exercised with utmost vigilance.
29. The settled legal principles governing the writ courts have been reiterated by the Honble Supreme Court time and again. In the case titled Union of India v. Kunisetty Satyanarayana, (2006) 12 SCC 28, the Honble Supreme Court held as follows:
15. Writ jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show-cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter.
30. The Courts under its writ jurisdiction have the power to intervene only in cases of extraordinary jurisdiction. If the Court is of the view that the executive has exercised its discretion rightly, then it may abstain from intervening with the decision of the public authority.
31. In the aforesaid case, the Courts intervention with regards to quashing has been limited to cases wherein the same is wholly illegal or without any jurisdiction. In the instant case, a bare perusal of the termination letter dated 19th January, 1998 as well as the detailed order/letter dated 27th April, 2023 have been passed in accordance of the guidelines followed by the respondents. Moreover, the petitioners contention that the Deputy Zonal Manager has passed the termination letter without jurisdiction stands settled in terms of the Bank of India Officer Employees’ (Discipline &Appeal) Regulations, 1976, whereby, it is stated that the Deputy Zonal Manager, is the disciplinary authority for officers in scale-I and II and the petitioner was officer- scale I when he was dismissed on 19th January, 1998.
32. Furthermore, the aforesaid letters make it apparent that the petitioner was afforded multiple opportunities to represent his case before the inquiry authority as well as the appellate authority, however, the petitioner failed to represent his case at that time. As far as the petitioners terminal dues are concerned, it is evident that vide letter dated 30th November, 2000 the respondents directed the petitioner to submit his claim papers as well as an authority letter, yet the petitioner failed to furnish the same in order to claim his dues.
33. Bearing in mind the abovementioned discussions as well as the narrow scope of this Courts writ jurisdiction, it is crystal clear that the respondents have been well within their jurisdiction while issuing the termination letter, moreover, the termination letter dated 19th January, 1998 as well as the letter dated 27th April, 2023 cannot be termed as arbitrary, since the petitioner was provided multiple opportunities to represent his case, however the petitioner failed to do the same.
34. In view of the facts and scenarios, this Court finds no merit in the present petition to issue any writ.
35. Accordingly, the instant petition stands dismissed along with pending applications, if any.
36. The order be uploaded on the website forthwith.
CHANDRA DHARI SINGH, J
NOVEMBER 3, 2023
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