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2014 DIGILAW 1079 (GUJ)

Shubha Bharti v. General Manager, Bank Of Baroda

2014-10-13

C.L.SONI, JAYANT M.PATEL

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JUDGMENT : C.L. Soni, J. This appeal under Clause 15 of the Letters Patent is directed against the judgment dated 31.8.2012 passed by learned Single Judge in the petition preferred by the appellant under Article 226 of the Constitution of India seeking to quash the order dated 31.12.2009 of her removal from service without disqualification for future employment and the order dated 13.4.2010 rejecting the appeal preferred by her against the order of removal from service. Learned Single Judge has observed that in the departmental inquiry initiated against the appellant, the charge of unauthorized absence was proved against her. Such departmental inquiry was conducted following due principles of natural justice and on the basis of the inquiry report, the respondent Bank found it fit to inflict penalty upon the appellant of removal from service, which shall not be a disqualification for future employment. Learned Single Judge has observed that the appellant has not alleged any mala fide against any officer of the Bank. Learned Single Judge thus did not find any infirmity with the order passed by the Disciplinary Authority and confirmed by the Appellate Authority. 2. We have heard learned advocates for the parties. 3. Learned advocate Mr. Kabir Hathi for the appellant submitted that the appellant was granted maternity leave and was entitled to further extension of such leave. Mr. Hathi submitted that such maternity leave was required to be extended on account of serious medical condition of the child of the appellant. Mr. Hathi submitted that considering such circumstances, the respondents ought to have taken more humanitarian and compassionate approach and ought not to have charged the appellant with misconduct of unauthorized absence. Mr. Hathi submitted that charge of remaining absent for the period beyond the maternity leave could not have been considered as so grave so as to warrant punishment of dismissal of the appellant. Mr. Hathi submitted that it is not that the appellant did not request for extension of any leave nor it is a case of the respondent Bank that the appellant continued to remain absent without informing the Bank. Mr. Hathi submitted that under Regulation No. 36 of the Bank of Baroda (Officers') Service Regulations, 1979 ('the Regulations'), total period of maternity leave available is of 12 months for the entire service career. Mr. Mr. Hathi submitted that under Regulation No. 36 of the Bank of Baroda (Officers') Service Regulations, 1979 ('the Regulations'), total period of maternity leave available is of 12 months for the entire service career. Mr. Hathi submitted that in view of such provision made in the Regulation, the respondent Bank could have considered the circumstances of the appellant and granted whole period of maternity leave instead of taking harsh action of removing the appellant from service. Mr. Hathi submitted that removal of the appellant is on the basis of the misconduct of unauthorized absence stated to be proved against the appellant and therefore, it is not a simple removal from service though such removal of service is stated to be without disqualification. Mr. Hathi submitted that when the request for accepting the leave report was not being granted beyond the period of six month of maternity leave, the request of the appellant to permit her to resume duty was required to be accepted, however the respondent Bank acted inhumanly against the appellant and proceeded with a departmental inquiry and on the basis of the departmental inquiry, ultimately, the appellant is removed from service which is a punishment disproportionate to the guilt established against the appellant. Mr. Hathi has relied on Delhi High Court judgment dated 20.11.2006 in the case of Seema Gupta Vs. Guru Nanak Institute of Management, (2006) 135 DLT 404 and thus urged to allow the appeal. 4. Learned advocate Mr. Darshan Parikh for the respondent Bank submitted that the appellant was appointed on probation and whatever maternity leave available under the regulation was granted to her. Mr. Parikh submitted that the appellant was made aware while sanctioning the maternity leave for six months, that her probation period would stand extended to the extent of maternity leave availed by her and she was also informed that she had already enjoyed 32 days leave prior to the maternity leave and her probation also stood extended to the said extent. Mr. Parikh submitted that even after expiry of the maternity leave, the appellant did not resume duty and remained authorizedly absent. Mr. Parikh submitted that since the appellant did not resume duty even after the maternity leave ended, she was advised by letter dated 28.8.2008 to report for duty immediately and also to submit explanation for continuous unauthorized absence and for leaving the headquarter without providing address. Mr. Parikh submitted that since the appellant did not resume duty even after the maternity leave ended, she was advised by letter dated 28.8.2008 to report for duty immediately and also to submit explanation for continuous unauthorized absence and for leaving the headquarter without providing address. It was also informed by the said letter that if there was no satisfactory explanation for unauthorized absence, necessary disciplinary action shall be initiated against her. Mr. Parikh submitted that to the aforesaid letter, the appellant replied vide her letter dated 30.8.2008, stating that the doctor had advised her to keep her baby on mother's milk for first six months and requested to sanction her leave till 16.9.2008. Mr. Parikh submitted that the appellant was required to resume duty but the appellant again wrote a letter dated 16.9.2008 seeking extension of leave on the above-said grounds till 16.12.2008. Mr. Parikh submitted that since the appellant did not resume duty, disciplinary action was initiated against her and the charges against her were proved in the departmental inquiry. Mr. Parikh submitted that there was no complaint from the appellant as regards the decision making process in the departmental inquiry. However, taking a lenient view of the matter, the Disciplinary Authority has imposed penalty upon the appellant of removal from service which shall not be a disqualification for future employment. Mr. Parikh submitted that such penalty is imposed considering the fact that the appellant was on probation and therefore, it is not a disqualification for any other employment for the appellant. Mr. Parikh submitted that since attempt on the part of the appellant was an intentional act to remain unauthorizedly absent and since her correspondences revealed that she wanted to get herself transferred to Delhi, the request for extension of leave on maternity ground was nothing but an excuse and therefore, once the charge against the appellant of unauthorized absence was proved, the Disciplinary Authority was justified in taking impugned action and it cannot be said that the Bank has acted in inhuman manner against the appellant. Mr. Parikh thus urged to dismiss the appeal. 5. Having heard learned advocates for the parties, it appears that the appellant was appointed on probation in Junior Management Grade for a period of two years by letter/order dated 28.3.2006. She joined the service with effect from 20.4.2006 and posted at Ahmedabad. Mr. Parikh thus urged to dismiss the appeal. 5. Having heard learned advocates for the parties, it appears that the appellant was appointed on probation in Junior Management Grade for a period of two years by letter/order dated 28.3.2006. She joined the service with effect from 20.4.2006 and posted at Ahmedabad. In normal circumstances, her probation period would have ended on 19.4.2008. However, since the appellant remained on frequent leave and absent from service, her probation period stood extended to the extent she remained on leave and absent from duty. 6. The appellant asked for maternity leave by her letter dated 15.11.2007 for six months from 13.11.2007 to 12.5.2008. Such request was granted. While granting such request for maternity leave, the appellant was informed vide letter dated 24.11.2007 at Annexure-B that her probation period shall stand extended to the extent of maternity leave availed by her. It was also stated in the said letter that the appellant was earlier on leave on loss of pay for 32 days and her probation period stood extended to that extent. 7. The appellant, however, did not resume duty on expiry of the maternity leave but asked for extension of leave in continuation to maternity leave. Such request was not granted and the respondent Bank informed the appellant by letter dated 28.8.2008 at Annexure-D that she had left the headquarter without informing the branch and left no address for communication, resultantly the letter written to her was returned undelivered. She was advised to report for duty immediately and on receipt of the letter, to submit explanation of her continuous unauthorized absence and for leaving the headquarter without providing address for communication during the leave period. It was also stated in the said letter that if the appellant did not report for duty and did not submit satisfactory explanation for unauthorized absence, necessary disciplinary action would be taken against her. 8. On receipt of the above-said letter by the appellant, the appellant wrote a letter dated 30.8.3008 stating that her baby's doctor had advised her to keep the baby on mother's milk for first six months and requested to sanction leave to her till 16.9.2008. Again on 16.9.2008, the appellant sent a FAX message at Annexure-F to extend her leave till 16.12.2008. 9. Again on 16.9.2008, the appellant sent a FAX message at Annexure-F to extend her leave till 16.12.2008. 9. The above request was rejected and the appellant was informed by letter dated 17.9.2008 by the respondent that the absence of the appellant from duty from 10.6.2008 was being treated as unauthorized and on loss of pay. It was also stated that on account of such absence, her probation period stood extended accordingly. Again, by letter dated 27.9.2008, the appellant was advised to report for duty immediately by informing that her absence was treated as unauthorized and on loss of pay. Then by further letter dated 14.10.2008, the appellant was advised to report for duties immediately and to submit explanation of unauthorized absence. It was stated that on appellant failure to report for duties immediately, the respondents would be constrained to believe that the appellant was not interested continuing the Bank service and would be compelled to take further course of action. Then, by letter dated 25.10.2008, the respondents informed the appellant that it has been observed that in spite of lapse of considerable period, the appellant neither resumed duties nor submitted her explanation as called for. The appellant was given final opportunity to submit her written explanation within 7 days and to show cause as to why disciplinary action should not be initiated against her. After this letter, the appellant wrote letter dated 3.11.2008 to the respondents giving the same reason about the doctor's advice to keep her baby on mother's milk and to sanction leave till 16.12.2008. However, such request was turned down by the respondents by letter dated 5.11.2008 and again advising the appellant to resume duties and reminding her that her absence since 11.6.2008 was being treated as unauthorized. After a period of one month, the appellant wrote letter dated 10.12.2008 conveying thankfulness to the respondents for granting maternity leave, and further stating that her husband was transferred to ONGC Videsh Limited at Delhi and that on account of requirement of constant medical assistance and for managing the domestic need and for care of her child, she was compelled to take leave without pay. She further stated that since her husband was living at Delhi, it was difficult for her to live alone in Ahmedabad. She further stated that since her husband was living at Delhi, it was difficult for her to live alone in Ahmedabad. She, therefore, requested to transfer her to Delhi on compassionate ground so that she could manage her family and job in a better way. Such request was turned down by the respondent by letter dated 28.4.2009 at Annexure-K. It was thereafter, the appellant was served with memorandum of Article of Charges and statement of allegations dated 6.1.2009 with forwarding letter dated 7.1.2009 at Annexure-L. 10. From the above events, it appears that the appellant continued to remain absent after expiry of the maternity leave for almost a period of more than seven months till the date of service of charge sheet to her. The total period for which the appellant did not join the duty was more than 12 months. Such period would include the maternity leave for six months granted to the appellant. Learned advocate for the appellant, however, submitted that total period of maternity leave available to an employee is of 12 months in the entire service career and therefore, even if the appellant had remained absent beyond the maternity leave of six months, such could have been considered as full enjoyment of the maternity leave for entire service career and harsh action of removal from service was not warranted. Such contention cannot be accepted in view of Regulation No. 36 of the Regulations, which reads as under: “Regulation 36 Maternity Leave: 1. On and from 1st day of April, 2000, leave upto a period of 6 months at a time may be granted by way of Maternity Leave including in respect of post-natal period or at the time of miscarriage or abortion or medical termination of pregnancy. Provided that not more than 12 months of such leave shall be available during the entire period of service of the officer. 2. Leave may also be granted once during service to a childless female employee for legally adopting a child which is below one year of age till it reaches the age of one year, subject to a maximum period of two months on the following terms and conditions: (i) Leave will be granted for adoption of only one child. 2. Leave may also be granted once during service to a childless female employee for legally adopting a child which is below one year of age till it reaches the age of one year, subject to a maximum period of two months on the following terms and conditions: (i) Leave will be granted for adoption of only one child. (ii) The adoption of a child should be through a proper legal process and the employee should produce the adoption deed to the Bank for sanctioning such leave.” As per the above-said regulation, the leave upto the period of six months at a time may be granted by way of maternity leave, including in respect of post-natal period or at the time of miscarriage or abortion or medical termination of pregnancy. Therefore, at a time, maximum leave available by way of maternity leave is of six months. But, even if we consider that 12 months for maternity leave could be made available, as per the proviso to sub-regulation (1) during the entire period of service of an officer, the appellant had even crossed that period and continued to remain absent without leave in spite of the repeated requests to resume the duty and in spite of clear advice to her that her absence has been treated as unauthorized. Therefore, the above such contention in the facts of the case is not available to the appellant. 11. What is additionally required to be considered is that though in the departmental inquiry, the charge of unauthorized absence is proved and the appellant has not challenged the legality of the departmental inquiry, the respondents have shown leniency by imposing punishment of removal of the appellant from service without disqualification for future employment. 12. The appellant was on probation for two years and as observed by the learned Single Judge, the appellant had actually worked for around 17 months and 174 days. During this period also, the appellant had enjoyed casual leave, privilege leave and sick leave accrued to her. She had no other leave to her balance. In such facts situation, when the appellant had not even completed her probation period, the impugned order of her removal from service without disqualification of future employment could not be said to have worked harsh on her. It appears that the appellant wanted to work at Delhi, where her husband was transferred. She had no other leave to her balance. In such facts situation, when the appellant had not even completed her probation period, the impugned order of her removal from service without disqualification of future employment could not be said to have worked harsh on her. It appears that the appellant wanted to work at Delhi, where her husband was transferred. May be that the appellant had some difficulties, but in view of the facts stated above, it cannot be said that the respondents have acted inhumanly against the appellant. Under Regulation No. 36, if the appellant was not entitled to more maternity leave and when the appellant was on probation, the respondents could not be said to have acted arbitrarily in passing the impugned order. We find that all the above aspects have been considered by the Appellate Authority in the appeal preferred by the appellant and we do not find any error committed by the Appellate Authority. 13. In the case of Seema Gupta v. Guru Nanak Institute of Management (supra), learned Single Judge of Delhi High Court on peculiar facts of the case has held that the concerned authority did not furnish any reasons or justification as to why the right to claim the extended period of one year's leave had to be rejected. It is observed that if reasons given in a routine manner for rejecting the request for maternity leave are to be upheld, the right for extended maternity leave of upto one year would be meaningless, as every employer can cite that as a ground for denial. The special nature of the right then would exist only on paper, in negation. However, we find from the facts of the present case that not only the appellant went on requesting for extension of leave period though she was put to notice that she had not provided any good explanation for remaining unauthorized absent but she wanted to get herself transferred at Delhi so as to be with her husband. As stated above, total period including the maternity leave for which the appellant remained out of service had already crossed more than 12 months and no attempt was made by the appellant to join duty even thereafter. Therefore, in the facts of the present case, the judgment of the learned Single Judge of Delhi High Court will be of no help to the appellant. Therefore, in the facts of the present case, the judgment of the learned Single Judge of Delhi High Court will be of no help to the appellant. As stated above, the appellant was on probation and if on proof of her unauthorized absence, the respondents have removed her from service without disqualification for future employment, we do not find any illegality in such impugned action of the respondents. We do not find any substance in the appeal. The appeal is therefore, dismissed. No order as to costs.