Research › Search › Judgment

Patna High Court · body

2014 DIGILAW 680 (PAT)

Chandra Bhushan Pandey v. Allahabad Bank through the Chairman-cum-Managing Director

2014-06-18

CHAKRADHARI SHARAN SINGH

body2014
ORDER 1. The petitioner was an employee of Allahabad Bank. This writ application was filed on 29.02.2008 seeking quashment of the chargesheet dated 21.01.2008 issued under the signature of Assistant General Manager and Disciplinary Authority, The Allahabad Bank, Zonal Office, Nagpur. During the pendency of the writ application, the Disciplinary Authority, by an order dated 06.06.2008 imposed upon the petitioner punishment of removal from Bank service not being a disqualification for future employment. It was specifically mentioned in the said order dated 06.06.2008 that the petitioner could make an appeal to the Appellate Authority i.e. General Manager, The Allahabad Bank, Zonal Office, Mumbai within fifteen days from the date of receipt of the order in terms of Regulation 17(1) of Allahabad Bank Officer Employee’s (Discipline & Appeal) Regulations, 1976. He admittedly did not prefer statutory appeal. The petitioner however, seeks to challenge the said order dated 06.06.2008 by filing an interlocutory application being I.A. No. 2582 of 2014 by way of amendment in the writ application. The said application has been filed on 26.03.2014. 2. Though there is no specific averment in the writ application or in the interlocutory application as regards his date of superannuation, it would be evident from the statement made in paragraphs No. 9 and 10 of the writ application that by now the petitioner must have attained the age of superannuation and he must have retired by now. 3. There is no explanation, in the interlocutory application being I.A. No. 2582 of 2014 seeking amendment to challenge the final order of removal dated 06.06.2008, as to what prevented the petitioner from challenging the said order during all these six years and as to why he did not prefer statutory appeal provided under the Regulations, though availability of such remedy was mentioned in the impugned order also. The writ application deserves to be dismissed on this account alone. However, there are certain salient features of this case which, I think are worth taking note and which would demonstrate how the petitioner persistently came approaching this Court to avoid an order of transfer and how he attempted to mislead a Division Bench of this Court when the order of dismissal was passed against him. 4. The petitioner, at the relevant point of time was posted as Senior Manager, F.I.O., Patna, Allahabad Bank. 4. The petitioner, at the relevant point of time was posted as Senior Manager, F.I.O., Patna, Allahabad Bank. By letter dated 13.09.2006, decision of the personnel administration Department of the Bank to post him under Nagpur Zone was communicated. It was mentioned in the said letter that he would stand relieved at the close of working hours on 14.09.2006 for onward reporting at Zonal Office, Nagpur, after availing of usual joining time, for receiving further placement order. 5. The petitioner did not join, instead he filed a writ application being C.W.J.C. No. 14145 of 2006 on the ground that his transfer from Patna to Nagpur was in breach of the transfer policy as contained in the Circular issued by the Bank on 14.09.2004, paragraph 4.12 of which provided that officers would not be transferred out of State/Circle who had attained 55 years of age as far as possible and practicable. The said writ application was dismissed by this Court by an order dated 22.01.2007. The petitioner did not join even thereafter and filed appeal under Letters Patent of this Court vide L.P.A. No. 131 of 2007 challenging the 22.01.2007 passed in C.W.J.C. No. 14145 of 2007; which was however, permitted to be withdrawn as the petitioner wanted to make a representation before the appropriate Authority. The appeal was accordingly disposed of. This is to be noted that the order relieving the petitioner from his previous place of posting was neither stayed nor altered by this Court or any other authority till 18.04.2007 against the said order of transfer dated 13.09.2006. 6. The petitioner thereafter, again approached this Court by filing a writ petition being C.W.J.C. No. 10305 of 2007 as his representation dated 22.05.2007 was not being disposed of and he was receiving threats from the Zonal Manager of Nagpur Zone for his joining at Nagpur. During the pendency of the writ application, an order dated 23.08.2007 was passed disposing of the petitioner’s representation, communicated to him through letter dated 30.08.2007. The petitioner challenged the said order dated 23.08.2007 by filing an interlocutory application vide I.A. No. 5205 of 2007 in C.W.J.C. No. 10305 of 2007. The said writ application was also permitted to be withdrawn by an order dated 07.11.2007 as the petitioner proposed to avail departmental remedies. The petitioner however, did not join. 7. The petitioner challenged the said order dated 23.08.2007 by filing an interlocutory application vide I.A. No. 5205 of 2007 in C.W.J.C. No. 10305 of 2007. The said writ application was also permitted to be withdrawn by an order dated 07.11.2007 as the petitioner proposed to avail departmental remedies. The petitioner however, did not join. 7. It appears from an order dated 28.04.2010 passed in L.P.A. No. 349 of 2008 by a Division Bench of this Court that the petitioner had again filed a writ application being C.W.J.C. No. 3295 of 2008 challenging the order of transfer. There is no statement in the present writ application as regards filing of the said C.W.J.C. No. 3295 of 2008 which was apparently filed before filing of the present writ application. A certified copy of the order dated 28.04.2010 passed in L.P.A. No. 349 of 2008 has been produced in course of hearing of the present application. 8. From the said order, it appears that the said C.W.J.C. No. 3295 of 2008 was dismissed on the ground that the petitioner had repeatedly rushed to this Court to challenge the order of transfer. It further appears that before the Division Bench of this Court in L.P.A. No. 349 of 2008, the petitioner informed that a disciplinary proceeding had been initiated against him and that he had been dismissed from service. The petitioner also informed the Division Bench of this Court that the order of dismissal has been challenged in C.W.J.C. No. 4093 of 2008 (present writ application). 9. The Division Bench of this Court considering submission on behalf of the appellant made following observation in the order dated 28.04.2010:- “Ordinarily, we would have disposed of the appeal which has been rendered infructuous but Mr. Mangalam submitted that due to unavoidable circumstances, the appellant could not abide the order of transfer and he has realized his mistake. It is urged by him that the appellant has no objection if the order of dismissal is converted into order of punishment of compulsory retirement and while calculating his pension his non-joining period is not taken into consideration. 10. Two things are evident from the order as quoted above. Firstly, a false plea was taken before the Division Bench of this Court in L.P.A. No. 349 of 2008 on 28.04.2010 that the order of dismissal passed against the petitioner had been challenged in C.W.J.C. No. 4093 of 2008. 10. Two things are evident from the order as quoted above. Firstly, a false plea was taken before the Division Bench of this Court in L.P.A. No. 349 of 2008 on 28.04.2010 that the order of dismissal passed against the petitioner had been challenged in C.W.J.C. No. 4093 of 2008. This is to be noted that the order of removal from service dated 06.06.2008 is sought to be challenged by the petitioner in the present C.W.J.C. No. 4093 of 2008 by filing I.A. No. 2582 of 2014 only on 26.03.2014. Secondly, the petitioner took stand before the Division Bench that due to unavoidable circumstances the appellant could not abide by the order of transfer and that he had realized his mistake. The said L.P.A. No. 349 of 2008 has subsequently been withdrawn by an order dated 24.08.2010. 11. In the background of the facts as indicated above Mr. S.B.K. Mangalam, learned counsel appearing on behalf of the petitioner has vehemently argued that since the order of transfer itself was illegal, the petitioner was not required to comply with such illegal order. He has further contended, assailing the order of dismissal dated 06.06.2008, that the Assistant General Manager, Zonal Office, Nagpur did not have the jurisdiction to impose the order of punishment as the petitioner had not submitted his joining in the said Zonal Office pursuant to the order of transfer. He submits accordingly that the impugned order is a nullity in the eye of law. Such submission has been advanced to be rejected. If this submission is to be accepted then there was no authority who could have taken disciplinary action against the petitioner for the reason that he was relieved from his previous place of posting with effect from 14.09.2006. If the contention Mr. Mangalam is accepted, authorities of Patna Zone could not have the disciplinary control over him because of his relieving and authorities of Nagpur Zone could not have the disciplinary control over him because of his non-joining. Such submission is absurd and wholly illogical. In my opinion, the moment he was relieved to join at Zonal Office, Nagpur from Patna Zone, the petitioner was under the disciplinary control of Nagpur Zonal Office. The challenge to the impugned order cannot be sustained on this ground. Such submission is absurd and wholly illogical. In my opinion, the moment he was relieved to join at Zonal Office, Nagpur from Patna Zone, the petitioner was under the disciplinary control of Nagpur Zonal Office. The challenge to the impugned order cannot be sustained on this ground. Secondly before a Division Bench of this Court in L.P.A. No. 349 of 2008, the petitioner took stand that he would have no objection if the order of dismissal is controverted into order of punishment of compulsory retirement. In the present proceeding, he cannot take a plea of lack of jurisdiction. Thirdly, the chargesheet was issued by the disciplinary authority at Zonal Office, Nagpur. The petitioner has not raised any plea in the present writ application questioning the jurisdiction of the authorities at Nagpur to initiate disciplinary proceeding. 12. I have narrated these facts just to take note of the conduct of the petitioner. He filed three writ petitions and two appeals under Letters Patent of this Court seeking interference with the order of transfer dated 13.09.2006, but never complied with the order of transfer. He took false stand before this Court on 28.04.2010 that he had challenged the order of dismissal in C.W.J.C. No. 4093 of 2008 which he had not done till that date. He did not prefer any appeal against the punishment of removal from service within fifteen days as prescribed in the Regulations. Nearly six years after passing of the said order, he filed an interlocutory application seeking amendment in the present writ application. There is no explanation given in the interlocutory application as to what prevented the petitioner from seeking amendment at an earlier stage. 13. I.A. No. 2582 of 2014 is accordingly dismissed. 14. As regards main prayer in the writ application for quashing of the Articles of charge, I do not find any substance as the petitioner admittedly failed to comply with the order of transfer on one pretext or the other. Non-compliance of an order of transfer can constitute grave misconduct and amounts wilful disobedience of lawful orders. In Gujarat Electricity Board and Another Vs. Non-compliance of an order of transfer can constitute grave misconduct and amounts wilful disobedience of lawful orders. In Gujarat Electricity Board and Another Vs. Atmaram Sungomal Poshani reported in (1989) 2 SCC 602 , Supreme Court has held that a public servant must comply with an order of transfer and if he had any genuine difficulty in proceeding on transfer it was open to the employee to make a representation to the competent authority for its stay, modification or cancellation of the present order. If the order of transfer is not stayed, modified or cancelled then the employee has to carry out the order. The Supreme Court has further held that an employee cannot avoid or evade the transfer merely on the ground of having made a representation. 15. As has been discussed above, the petitioner filed three writ applications before this Court and two appeals under Letters Patent of this Court unsuccessfully challenging the order of transfer. Despite that, he never joined his place of posting. His conduct in course of proceeding, as has been noted above, also deserves to be deprecated. 16. This application is accordingly dismissed. 17. For having taken false plea before this Court as has been noted above and conduct of the petitioner discussed herein a cost of Rs. 10,000/- (rupees ten thousand) is imposed upon the petitioner. The amount of cost must be deposited by the petitioner in the account of Patna High Court Legal Services Committee within two months from today. 18. Let matter be listed after two months under the heading “To Be Mentioned” to report compliance as regards payment of cost.