THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3930 OF 2010 DATED 1st SEPTEMBER, 2014 Between:
N.C.S. Malleswara Prasad … Petitioner and The State Bank of Hyderabad rep. by the Managing Director, Head Office, Gunfoundry, Abids, Hyderabad and others … Respondents THE HON’BLE SRI JUSTICE SANJAY KUMAR WRIT PETITION NO.3930 OF 2010 O R D E R By the Appointing Authority’s order dated 22-10-2008, the petitioner, a Middle Management Grade Scale-III Officer in the State Bank of Hyderabad, was deemed to have voluntarily vacated his employment under Regulation 40(3) of the State Bank of Hyderabad (Officers’) Service Regulations, 1979 (for brevity, ‘the Regulations of 1979’) and he was held liable to pay the bank three months total emoluments in lieu of notice, quantified at Rs.80,738.19. His appeal against the said order was dismissed by the Chief General Manager of the bank on 23-03-2009. His mercy appeal to the Managing Director of the bank was declined under order dated 20-10-2009. These three orders are subjected to challenge in the present writ petition. A further declaration is sought that the petitioner is entitled to be continued in service with consequential benefits.
It appears that a mistake occurred in paragraph (a) of the prayer in the writ petition wherein the order dated 22-10-2008 was wrongly mentioned as order dated 20-10-2009. W.P.M.P. No.42460 of 2013 was filed by the petitioner to amend this error and the same is allowed.
The petitioner also filed W.P.M.P. No.42132 of 2013 seeking to place on record certain additional documents. This petition is ordered.
At the time of admission of this case, this Court granted an interim order only to the extent of staying the demand upon petitioner to pay Rs.80,738.19 in lieu of three months notice.
The petitioner entered the service of the State Bank of Hyderabad in the year 1985. Upon due promotions, he became a Middle Management Grade Scale-III Officer in the year 2005. He was transferred from the SVIMS branch of the bank at Tirupati to its Tanuku branch in West Godavari District on 06-05-2006.
According to the bank, he had completed three years tenure at the SVIMS branch, Tirupati, and by then, out of the ten years of confirmed service as an Officer, he had worked in Chittoor District for nearly nine years; and out of the said nine years, he had worked at Tirupati for nearly seven years. These facts are not disputed by the petitioner but he states that the same have no relevance to the issue of his transfer as per the bank’s policy. Be that as it may.
The petitioner submitted representation dated 31-05-2006 to the bank expressing his inability to join at the Tanuku branch on various grounds. In effect, he wanted to be retained at Tirupati. As no action was taken by the bank upon the said representation, he approached this Court by way of W.P. No.13310 of 2006. This writ petition was disposed of on 30-06-2006 directing the bank to consider the petitioner’s representation and pass appropriate orders. The bank thereupon issued proceedings dated 18-10-2006 refusing to modify the transfer order dated 06-05-2006. Aggrieved thereby, the petitioner filed W.P. No.2965 of 2007 before this Court. By interim order dated 15-02-2007, this Court directed the bank to continue the petitioner at Tirupati till 31- 08-2007 and give effect to the order of transfer thereafter. Alleging that the interim order was disobeyed, the petitioner filed Contempt Case No.573 of 2007. This case was closed on 03-09-2007 on the ground that the order dated 15-02-2007 had already worked itself out. The petitioner was however left free to pursue the remedies available to him in law. Thereafter, W.P. No.2965 of 2007 was dismissed as infructuous on 01-11-2007 upon the representation made by the learned counsel for the petitioner to that effect.
The petitioner then approached the National Commission for Scheduled Castes, New Delhi, ventilating his grievance and the Commission summoned the Managing Director of the bank and instructed her to modify the transfer order. The bank thereupon modified its earlier order dated 06-05-2006 and transferred the petitioner to its Chittoor branch instead of the Tanuku branch. However, the petitioner failed to report at the Chittoor branch. According to the bank, the petitioner was unauthorizedly absent since June, 2006, resulting in dislocation of work. The petitioner was not sanctioned any leave for the period of absence and in fact, he did not even seek sanction of leave after 2007. Thereupon, the bank took recourse to the provisions of Regulation 40(3) of the Regulations of 1979 and passed the order dated 22-10-2008. His appeals having failed, the petitioner is before this Court.
In the present case, this Court is not concerned with the issue of the petitioner’s transfer. The order dated 18-10-2006 refusing to modify the earlier transfer order dated 06-05-2006 was the subject matter of challenge before this Court in W.P. No.2965 of 2007 and the same was dismissed as infructuous at the behest of the petitioner himself. Further, the transfer order dated 06-05-2006 stood modified upon the bank transferring the petitioner to its Chittoor branch under the order dated 09- 08-2008. This order was never subjected to challenge. It is however an admitted fact that the petitioner failed to report at Chittoor.
Regulation 40(3) of the Regulations of 1979 reads as under:
“Where an officer who has not submitted an application for leave or where an officer having submitted his application was refused sanction of leave, absents himself for a period of 90 or more consecutive days or overstays the sanctioned leave by 90 or more consecutive days notwithstanding the provisions of sub- rule (2), the Bank may at any time thereafter give a notice to the officer at his last known address available with the Bank calling upon him to report for duty within 30 days of the notice. If the officer does not report for duty within the stipulated period, he may, by an order of the Appointing Authority, be deemed to have voluntarily vacated his employment on the expiry of the said period set out in the notice. In such cases the officer shall also be liable to pay to the Bank such notice monies as are payable in case of resignation as if he has been permitted to pay the emoluments in lieu of notice.”
In exercise of the powers conferred by the above Regulation, the bank issued the petitioner a notice on 13-09-2008 advising him to report for duty at Chittoor within 30 days. The notice specifically mentioned that it was issued in terms of Regulation 40(3) of the Regulations of 1979 for voluntary vacation of employment. Despite expiry of the 30 day notice period, the petitioner remained absent from duty. The bank accordingly passed the order dated 22-10-2008 holding that the petitioner was deemed to have voluntarily vacated his employment and requiring him to pay three months emoluments in lieu of the notice period.
The petitioner’s appeal against the said order was rejected by the Chief General Manager of the bank under order dated 23-03-2009. Perusal thereof reflects that the Appellate Authority took note of the fact that the petitioner’s request for retention at Tirupati was not justified as he had put in long years of service at Tirupati and that he had failed to justify his unauthorized absence after his transfer. The Appellate Authority pointed out that the petitioner had been unauthorizedly absent for 868 days, i.e. from 01-06-2006 to 15-10-2008, demonstrating that he had no intention to report for duty and that he had failed to submit any application for leave after 15-02-2007. The petitioner’s plea that he was willing to report at Chittoor and that he had been previously misguided by some seniors not to do so, was also rejected. As the petitioner had put in sufficient years of service in the bank and was expected to understand the Service Rules, the Appellate Authority held against the petitioner. His mercy appeal to the Managing Director also met with the same fate. Perusal of the order dated 20-10-2009 passed by the Managing Director of the bank reflects she took into account the fact that the bank had given several opportunities to the petitioner to report for duty, but he had failed to do so. Taking note of the sequence of events, she opined that no reason was made out to review the matter on humanitarian grounds and accordingly declined the mercy petition.
The aforestated facts demonstrate that the petitioner, having been subjected to a routine transfer, adopted an adamant stand that he should be retained at the same location. The tone and tenor of his correspondence with the bank speak for themselves. Upon the intervention of the National Commission for Scheduled Castes, New Delhi, it appears that the bank tried to accommodate the petitioner’s request and transferred him to Chittoor within the same District. Despite the same, the petitioner obstinately refused to comply with the transfer order and report for duty. This kind of recalcitrant and obdurate attitude on the part of an employee cannot obviously be tolerated. It not only amounts to a blatant act of insubordination but also sets a bad example for others. The bank therefore cannot be found fault with for taking recourse to its Service Regulations which provide for dealing with such a situation. Admittedly, the petitioner was not sanctioned any leave and, in fact, he did not seek any leave after February, 2007. That being so, his unauthorized absence clearly attracted the provisions of Regulation 40(3) of the Regulations of 1979. Following the due procedure prescribed therein, the bank offered the petitioner a further opportunity to correct himself by allowing him 30 days notice to join duty. He however failed to do so. It is in these justifiable circumstances that the bank passed the final order dated 22-10-2008 under Regulation 40(3) of the Regulations of 1979.
Though the petitioner would claim, on the basis of the additional documents filed by him, that his performance at the bank, while in service, was exemplary and that his case was entitled to a more sympathetic consideration, the same is disputed by the bank. In its additional counter-affidavit, the bank referred to instances where the petitioner was subjected to disciplinary action. However, this aspect of the matter is wholly irrelevant as the past performance of the petitioner has no impact on exercise of powers by the bank under Regulation 40(3) of the Regulations of 1979.
Reliance was placed by Sri Siva, learned counsel, on certain observations of the Supreme Court in V . C . , BANARAS HINDU
[1]
UNIVERSITY V/S. SHRIKANT . This case also dealt with a deeming provision relating to abandonment of service. In that context, the Supreme Court observed that though such a provision may be permissible in law, action thereunder must be fair and reasonable so as to satisfy the requirements of Article 14 of the Constitution and if such action is found to be illogical in nature, it cannot be sustained. Applying the above principle to the facts of the present case, this Court is of the considered opinion that the exercise of powers by the bank under Regulation 40(3) of the Regulations of 1979 was wholly justified given the irrefutable fact that the petitioner had deliberately chosen not to comply with the final order of transfer dated 09-08-2008. This case law is therefore of no avail to the petitioner.
Though Sri Siva, learned counsel, would state that the petitioner is now contrite and ready to atone for his past mistakes, this Court cannot lose sight of the fact that the attitude of the petitioner all through, as is apparent from the record, left the bank with no alternative but to pass the impugned proceedings. Having allowed this situation to develop by his own deliberate and willful actions and inactions, it is not open to the petitioner to now seek to turn back the clock. The consequences of the petitioner’s own misdoings would necessarily have to be borne by him. Equity can weigh with this Court only if it can be sourced within the confines of the law. Misplaced sympathy for the petitioner cannot justify this Court granting relief to him at this late stage. This Court therefore finds no reason to interfere with the exercise of powers by the bank under Regulation 40(3) of the Regulations of 1979.
In so far as the payment of three months emoluments in lieu of notice is concerned, Regulation 40(3) of the Regulations of 1979 manifests that no discretion is left in the bank in this regard. In all cases falling within the ambit of the said Regulation, it is provided that the officer concerned ‘shall’ be liable to pay to the bank the notice money. The petitioner would therefore be liable to compensate the bank for his abrupt departure from its service owing to the deemed vacating of his employment.
Ergo, no grounds are made out for interference in this writ petition
on any count. The writ petition is accordingly dismissed. W.P.M.P. Nos.42132 and 42460 of 2013 are ordered. Interim stay granted on 22.02.2010 shall stand vacated. Other pending miscellaneous petitions, if any, shall stand dismissed. No order as to costs.
SANJAY KUMAR, J 1st SEPTEMBER, 2014 Svv
[1] (2006) 11 Supreme Court Cases 42