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CASE NO.: Appeal (civil)  2672 of 2003

PETITIONER: Y.P. Sarabhai

RESPONDENT: Union Bank of India & Anr.

DATE OF JUDGMENT: 22/05/2006

BENCH: Dr. AR. Lakshmanan & Lokeshwar Singh Panta

JUDGMENT: J U D G M E N T           Dr. AR. Lakshmanan, J.

       We have heard Mr. V. Sudeer, learned Counsel for the  appellant and Mr. L. Nageswar Rao, learned Senior Counsel  assisted by Mr. O.P. Gaggar, Advocate for the respondents.   

       The appellant was appointed as a security officer of the  respondent Bank in 1980 and was working in middle  Management Cadre (Grade-III) as Manager. Security in 1998  when he was dismissed from the services of the respondent  Bank for alleged violation of Regulation 13 of the Union Bank  of India Officer Employee (Conduct) Regulations, 1976.  In the  charge sheet, it was alleged that he was not reporting for his  duties since 3.6.1997.  It was further stated that the  appellant’s services were transferred to Chennai but the  appellant did not carry out his transfer orders to Chennai and  was remaining absent without sanction  of leave.  Regulation  13(1) requires that "no  officer/employee should absent  himself in case of sickness or accident without submitting a  proper medical certificate".  The Bank’s Staff Circular dated  2.6.1981 also provides that "the  Management is not bound by  the certificate produced by the employee and may require him  to appear before the Medical Practitioner of Bank’s choice for  medical examination."   

       The Inquiring Authority came to the conclusion that though  the appellant was remaining absent on grounds of illness, the  real reason was that he was reluctant to carry out his transfer  to Chennai.         The Disciplinary Authority awarded the punishment of  dismissal from the services of the Bank concurring with the  above observation of the Inquiring Authority.  The Disciplinary  Authority further held the appellant guilty of the following  misconducts: a)   Contravention of Regulation 13 of the Union Bank of  India Officer Employees" (Conduct) Regulations, 1976 b)  Failure to discharge his duties with devotion and diligence c)   Acting in a manner unbecoming of a Bank officer.

       The Appellate Authority in dismissing the appellant’s appeal  held: a)  that it is the conduct of the petitioner "taking undue  advantage of his normal sickness to avoid transfer to the  extent possible", which was "not genuine". b)   that "his  sickness" was not such where he could "not   attend his normal office duties".

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       The High Court held that the appellant was adamant in not  carrying out the transfer order and tried his best to avoid  transfer until he finally failed upto this Court in challenging his  transfer from Mumbai to Chennai".  The finding of the High  Court was challenged before us in this appeal on the ground  that the same is not based on evidence and is contrary to the  opinion/recommendations of the medical experts as regards to  the petitioner’s illness.

       We have perused the pleadings and the orders impugned in  this appeal and also the annexures filed along with the appeal  and heared the lengthy arguments advanced by the learned  counsel appearing on either side.                  We are of the opinion that the appellant is not entitled to any  relief in these proceedings.  The appellant remained absent  from his duty for a very long time i.e. from 3.6.1997 to  23.11.1997 without any reasonable cause and justification  inspite of the respondent’s requests to join the duty and inspite  of the respondent’s granting him further time to join the duty .   The conduct of the appellant in remaining absent for such a  long time shows that he was bent upon to evade the transfer  order in any possible manner.  The grounds of ailment were  taken as a ruse to avoid transfer which is amply proved by the  conduct of the appellant, when he had unauthorisedly  remained absent on the ground that he was unable to attend  the duty due to illness for such a long but he was quite  capable of attending the court proceedings on the various  days and was also capable of coming to Delhi to file a petition  before this Court.  The concurrent finding of the enquiry is that  he has been shifting stands because initially on the very day  of the service of the transfer order he gave a representation  mentioning illness of his wife and the studies of his son for the  purpose of deferment of the transfer to Chennai from Mumbai.   But in the other representation to other Officer of the Bank,  which he has produced to the Bank, he has stated the reason  of his illness as an excuse.  Thus, the conduct of the appellant  in trotting up all these defenses show that he was trying to  avoid transfer to Chennai through all possible means.  The  reason for deferment of transfer given by him before the High  Court and this Court in the writ petition and the appeal filed by  him against the transfer order was a simple ruse to avoid the  transfer.  It has been affirmed by the Court in that proceeding  that the transfer was done as per exigencies of the Bank.  The  transfer of the appellant was effected to a large city namely  Chennai which as per his own admission has very good  medical facilities which are comparable to those in Mumbai.   The service of specialist officers and for that matter all officers  in the Bank are transferable on all India basis and they are  liable to the posted anywhere in India subject to the personnel  and manpower requirement and exigencies of the Bank.   

       This Court has repeatedly held that the factual finding of the  Disciplinary Authority after holding a detailed enquiry and after  going through elaborate evidence are not assailable in the  courts unless the brech of pricniples of natural justice or the  violation of any rules or any material irregularity on the face of  record is alleged and shown.  However, in this case the High  Court in the jurisdiction under Artilce 226 of the Constitution of  India has again gone into all aspects of the enquiry in detail  and has come to the same factual finding as the Disciplinary  Authority and the Appellate Authority.  Such concurrent  findings by three different Authorities including the High Court  should not be disturbed by this Court under Article 136 of the

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Constitution of India.  We, therefore, have no other option  except to dismiss this appeal.  Accordingly, the appeal stands  dismissed.

       At the time of argument, Mr. V. Sudeer, the learned  counsel  for the appellant invited our attention to the affidavit of  undertaking dated 27th July, 2002 filed by the appellant herein.   Inspite of the order of dismissal, the learned counsel has  requested this Court to take a lenient view considering  peculiar facts and circumstances of the case.  The learned  counsel submitted that the appellant is ready to forgo the  entire back wages and shall join duty at the place where he is  posted and that he be reinstated in service.  He also made an  alternative plea that if for any reason the Bank is not willing to  consider his request for his reinstatement on sympathetic  grounds, the Bank may be advised to pay some lumpsum  payment to the appellant.  The matter was heard on 19th May,  2006 for this purpose and adjourned to ascertain the views of  the Bank and is listed today the 22nd May, 2006.  Mr. L.N.  Rao, learned Senior Counsel for the Bank reported that the  Bank is not willing to reinstate the appellant in service in view  of deriliction of duty and seriousness of the proved charges,  but however is ready and willing to abide by any further  direction that may be issued in regard to the above proposal.   

       We have considered the submissions made by both sides.   Irrespective of order of dismissal of the appeal filed by the  appellant, we feel that the request fervently made by the   Counsel for the appellant should be sympathetically  considered to meet the ends of justice.  The appellant was  dismissed from service on 4.9.1998.  He is without pay for all  these years in view of the order of dismissal.  According to the  appellant, his wife also died of cancer.  It is settled law that a  person who is dismissed from service is entitled to get only the  provident fund but no gratuity.  In the instant case, the total  amount of provident fund payable to the appellant comes to  Rs.3,36,158/- and gratuity comes to Rs.1,49,215/-.  The  appellant is liable to pay a sum of Rs.2,60,228/- towards  outstanding dues to the Bank for the various loans availed by  him from the Bank.  Therefore, after deducting sum of  Rs.2,60,228/- from and out of the total amount of provident  fund of Rs.3,36,158/-, the balance comes to Rs.75,930/-.  The  appellant has now crossed 58 years of age and getting a new  job at this juncture is also not possible for him.  Considering  the totalily of all the peculiar facts and circumstances of this  case, we feel that if we direct the Bank to pay a sum of  Rs.1,50,000/-, which includes the balance provident fund of  Rs.75,930/- after adjusting the loan amount due to the Bank,  that would meet the ends of justice.  We also make it clear  that the appellant will have no other claims against the Bank  hereafter.   In order to give quietus to this long standing  litigation, we direct the Bank to pay to the appellant by  Demand Draft a sum of Rs.1,50,000/- towards full and final  settlement of all claims between both the parties.  If there is  any discrepancy with regard to the amount payable to the  appellant by way of provident fund and the loan amount, the  appellant is at liberty to approach the Bank for any clarification  and if such a letter is received from the appellant, the Bank  shall consider the same and do the needful at the earliest.         The appeal shall accordingly stand dismissed.  There shall  be no orders as to costs.