- (1.) This Mandamus-Appeal is at the instance of the Punjab National Bank, the employer of the writ-petitioner, and is directed against the order dated September 22, 2009, passed by a learned Single Judge of this Court, by which His Lordship allowed the writ-application filed by the respondent No.1, since deceased, by setting aside the order imposing punishment passed by the Disciplinary Authority and affirmed by the Appellate Authority and the Reviewing Authority. The learned Single Judge directed the employer to reinstate the writ2 petitioner with full back wages. The employer-bank was further directed to pay interest @ 12% per annum on the arrears and also the costs of the writapplication which were assessed at 600 G.Ms. Being dissatisfied, the employer has come up with the present mandamus appeal.
(2.) The following facts emerge out from the materials on record: a) The writ-petitioner, a Deputy Manager of the Bank, was posted at the Salt Lake Branch. Due to cardiac ailment, he obtained an appointment for consultation on 2nd February, 2004 with Dr. Purnendu Kumar, attached to the Christian Medical College and Hospital at Vellore. He was granted leave up to 7th February, 2004. b) The writ-petitioner was advised to undergo a bye-pass surgery and was further directed by the said Hospital-Authority to deposit a sum of Rs.1,10,000/- and 12th February, 2004 was the date fixed for admission. On 9th February, 2004, the writ-petitioner sought for an advance sum of Rs.1,00,000/- from the bank to meet the said expenditure and also prayed for extension of his leave by 30 days by his aforesaid letter dated 9th February, 2004. Both the prayers were allowed and a sum of Rs.99,000/- was advanced by the employer which was deposited in a savings account opened by the writpetitioner at Vellore and the period of leave was extended by 30 days. c) The writ-petitioner developed further complications whereupon the Christian Medical College & Hospital insisted on deposit of a sum of Rs.1,90,000/- instead of Rs.1,10,000/- which the writ-petitioner was not in a position to arrange. The writ-petitioner, in such circumstances, contacted Shri Satya Sai Institute of Higher Medical Sciences, situated in the State of Andhra Pradesh and on 31st May, 2004 he was directed to take complete rest and to consult a Nephrologist. On 18th March, 2005, a mild renal failure of the writpetitioner was diagnosed by the Department of Nephrology, St. John Medical College & Hospital, Bangalore. The aforesaid Hospital by a letter dated 18th March, 2005 addressed to the Cardiologist of the Shri Sathya Sai Hospital indicated that for undergoing cardiac conventional angiogram any bye-pass surgery, the patient had been explained the risk of renal function deterioration post operation and if he decided to undergo surgery, he might be referred back before surgery for preventive advice. d) In the meantime, the bank had sent letters dated 9th June, 2004, 23rd March, 2005, 26th May, 2005 and 16th June, 2005 to the residence of the writ-petitioner calling for an explanation for his unauthorized absence and according to the bank, those letters returned undelivered with the endorsements like not claimed/door closed/left without address' etc. e) The writ-petitioner claimed to have a written letter dated 7th June, 2004 to the Chief Manager, Punjab National Bank, under certificate of posting, stating that due to severe illness, he was not in a position to move and had been advised by the doctors to take complete rest for a long time. He, accordingly, prayed for leave of 12 months. The bank authority, however, denied having received such letter. f) The writ-petitioner claimed to have by his letter dated 25th March, 2005 prayed for further leave of one year on the basis of medical advice. This letter of the writ-petitioner finds support from the letter dated 18th March, 2005 addressed by the Department of Nephrology, St. John Medical College & Hospital, Bangalore to the Cardiologist, Shri Satya Sai Hospital. g) A charge-sheet dated 9th December, 2005 had been issued by the bank but no show cause notice was served on the writ-petitioner. An enquiry officer had been appointed by the bank by a letter dated 27th January, 2006. The Enquiry Officer issued a notice dated 22nd February, 2006 but the writ-petitioner did not appear. The hearing was adjourned till 1st March, 2006 and the writ-petitioner also did not appear on that date. The next date of hearing was fixed on 10th May, 2006 and on that date, the writ-petitioner reported to the Branch in order to join his duty and he attended the meeting fixed on 10th May, 2006. h) The following two allegations were levelled against the writ-petitioner: 1) the bank has not received any communication from him for extension of his leave and such absence from duty is unauthorized in terms of Bank's Regulation. 2) Thus Sri Das by submitting a false declaration fraudulently took an advance of Rs.99,000/- from the branch. i) 14 different documents were tendered on behalf of the management and 35 documents were submitted by the writ-petitioner. The Enquiry Officer in his report has recorded that the prosecution documents were inspected/verified by the CO and he accepted the genuineness of the same . There was, however, no indication in the enquiry report as regards the response of the presenting officer with regard to the documents tendered by the writ-petitioner which the enquiry officer should have recorded. One Shri Tapas Das (Peon) and Shri Thakur (Clerk-cum-Cashier) were examined as the witnesses of the management but the writ-petitioner did not examine any witness. j) Both the charges levelled against the writ-petitioner were found to have been proved and the Enquiry Officer went one step further than the charges levelled against the writ-petitioner wherein breach of trust was alleged against him. k) The disciplinary authority concurred with the finding of the enquiry officer and passed an order of major penalty of compulsory retirement in terms of regulation 4(h) of the Punjab National Bank Officers' Employees (Discipline and Appeal) Regulations, 1977. However, through mistake, the punishment was reported to have been inflicted in terms of 4(h) of the aforesaid regulation because 4(h) prescribes for dismissal. l) The writ-petitioner preferred an appeal before the Appellate Authority and the said authority by order dated 9th June, 08 dismissed the appeal thereby affirming the order of the disciplinary authority. m) The writ-petitioner, thereafter, preferred a review which was also dismissed by an order dated 23rd July, 2008. Being dissatisfied, the writ-petitioner came up before the learned Single Judge with an application under Article 226 of the Constitution of India challenging all the three orders i.e. the orders of the disciplinary authority, the appellate and the reviewing authority.
(3.) The learned Single Judge by the order impugned in this appeal held that the order imposing major penalty on the basis of finding recorded by the Enquiry Officer was perverse and that even the alleged acts of misconduct were condoned and at the same time the misconduct was not proved and consequently, the learned Single Judge set aside the orders of punishment imposed by all the three authorities, i.e., the original, appellate and the Reviewing authority. After filing of this appeal and during the pendency of the same, the writpetitioner, however, had retired and, thereafter, has even died and as such, his heirs and legal representatives have been brought on record as respondents. After hearing the learned counsel for the parties and after going through the materials on record including the order impugned wherein the learned Single Judge has discussed the relevant submissions made by the learned counsel for the parties, we find that the learned Single Judge mainly relied upon a letter written by the Senior Manager to the Chief Manager, Salt Lake Branch of the bank, indicating that the Superior Authority had permitted the Chief Manager to allow the writ-petitioner to join his duty subject to submission of proper medical certificate and that the period of absence from February, 2004 till the 31st March, 2006 should be treated as an extraordinary leave on loss of pay and the period thereafter might be treated as medical leave subject to the submission of the application and availability of such leave. The authorities have also observed in the said letter that when the operation did not take place, the writ-petitioner was required to deposit the money with interest. The Chief Manager was directed act accordingly with further note that the aforesaid direction carried the approval of SRM in the file.;