@JUDGMENTTAG-ORDER
M. Jeyapaul, J.@mdashThe case of the petitioner is as follows:
a) The petitioner was selected and appointed as a Ledger Assistant in the Tamil Nadu State Apex Co-operative Bank Limited on 9.6.1981. She
went on medical leave for a period of one month from 29.1.1990 to 28.2.1990. She got married on 7.2.1990 during the said period. At any rate,
the sick leave applied for the period from 29.1.1990 to 28.2.1990 was sanctioned by the competent authority with half pay. The petitioner
continued her sick leave from 1.3.1990 to 31.5.1990. Thereafter, she joined duty on 1.6.1990 and worked for a few days. She proceeded on
medical leave thereafter. She delivered a baby on 23.11.1990 and she applied for maternity leave. The leave applications submitted by the
petitioner were not rejected by the competent authority.
b) The petitioner delivered a second child on 26.9.1992. She applied for maternity leave, but, the competent authority did not sanction the leave
nor rejected her application praying for maternity leave.
c) After giving birth to the first child, she joined duty on 6.12.1991. A memo was issued to her on 24.12.1991 asking her to explain for her
absence for just one day on 23.12.1991. A charge sheet dated 8.2.1992 was issued alleging that she maintained poor leave record, indulged in
malingering, produced false medical certificates, left the headquarters without prior permission, proceeded on medical leave without production of
medical certificates and showed disinterest to continue in service. Without asking her to explain the charges, the said charge memorandum directed
her to show cause as to why her services should not be terminated. She joined duty on 19.2.1992 as she was not permitted to join duty a day
earlier. She submitted her explanation to the charges on 10.3.1992.
d) Without appreciating the explanation submitted by her, a farce enquiry was conducted where no witness was examined and no document was
exhibited. Even without furnishing a copy of the enquiry report, a penalty of withholding increments for two years with cumulative effect was
passed by the third respondent and the period of absence from 1.3.1990 to 18.7.1994 was directed to be treated as absence without any pay.
The said period would not be reckoned as service nor would it be considered for annual increments. She preferred an appeal on 24.6.1997 to the
Board. The penalty was reduced to withholding of one increment with cumulative effect in the appeal preferred by her. She preferred a revision
before the first respondent, who, by his order dated 1.7.2002, set aside the penalty part of the order on the ground that procedural irregularities
were committed by the bank. The revisional authority remitted the matter back to the disciplinary authority to proceed from the stage at which the
irregularity crept in. Simultaneously, the first respondent revisional authority upheld the order of the third respondent dated 26.4.1997 whereby the
period from 1.3.1990 to 18.7.1994 was directed to be treated as absence without pay. Hence, the petitioner has preferred the writ petition
challenging the impugned orders passed by the authorities.
2. The second respondent filed counter stating that the petitioner was on unauthorised leave from 1.3.1990. Though she had applied for sick leave
on health grounds, she got married on 7.2.1990 which would go to show that the leave availed by her was not genuine. No leave of any kind could
be claimed as a matter of right. The leave would be ordinarily granted only on previous written application. The question of granting any leave to
her when she had already exhausted all leave admissible to her did not arise. The petitioner is not entitled to maternity leave which would be
normally granted to regular employees as she was on unauthorised absence for quite a long time. It is submitted that she absented herself from
11.5.1992 to 16.7.1994 for a period of 2 years and left the headquarters without getting permission. The petitioner had not requested for
production of any additional document or examination of any witnesses on her side. She was given maternity leave from 18.3.1996 to 15.7.1996
for the third child born to her. Therefore, it is submitted that the writ petition is liable to be dismissed.
3. Learned Counsel appearing for the petitioner would strenuously submit that once the competent authority regularized the leave as leave on loss
of pay, the question of initiating disciplinary proceedings for the leave applied for by an employee on loss of pay does not arise.
4. Learned Counsel appearing for the respondents would submit that the leave applied for by the petitioner was not regularized as contended by
the petitioner. Therefore, the competent authority is entitled to proceed as against the petitioner for the unauthorised absence.
5. The copy of the leave register relating to the petitioner produced by the respondents would go to show that the leave from 1.3.1990 to
31.5.1990, 5.6.1990 to 5.10.1990, 8.10.1990 to 5.12.1991, 23.12.1991 to 15.2.1992 and 11.5.1992 to 16.5.1992 was sanctioned as leave on
loss of pay. But, of course, the respondents have not communicated to the petitioner the leave on loss of pay granted to the petitioner. As a matter
of fact, the respondents had not rejected the leave on loss of pay sought for by the petitioner. The leave register does not furnish any particulars
from 17.5.1992 to 26.7.1993 the day on which the charge memorandum was issued to the petitioner.
6. The Supreme Court in The State of Punjab and Others Vs. Bakshish Singh, has held that once unauthorised absence from duty has been
regularized by the employer, the charge of misconduct does not survive.
7. In the light of the above ratio laid down by the Supreme Court, it is held that the authorities, having already regularized the leave on loss of pay,
cannot initiate disciplinary proceedings as against the petitioner. On this ground alone, the entire disciplinary proceedings initiated as against the
petitioner is liable to be quashed.
8. The respondents did not dispute the fact that the petitioner was blessed with a child on 23.11.1990 and she applied for maternity leave and
thereafter, she was blessed with another child on 26.2.1992 and again she applied for maternity leave.
9. The respondents have the audacity to say that the petitioner, who was on loss of pay, was not entitled to maternity leave which is available for
the regular employees as a matter of right. Maternity leave is a leave which is not earned by an employee like privilege leave. If a child is born, the
employee is entitled to maternity leave. Of course, the authorities could restrict the maternity leave for specific number of confinements. The fact
remains that the respondent bank refused to grant maternity leave for the two children born on 23.11.1990 and 26.9.1992 inspite of the necessary
applications duly submitted by the petitioner praying for maternity leave. The bank should not have refused to grant maternity leave for two children
in accordance with the settlement arrived at between the management and the bank employees.
10. For the first child born to the petitioner on 23.11.1990, the petitioner is entitled to maternity leave for three months as per Regulation 26 of the
Memorandum of Settlement arrived at by and between the Tamil Nadu State Co-operative Bank Limited and the Tamil Nadu State Co-operative
Bank Employees'' Union on 25.6.1982. She is also entitled to four months of maternity leave for the second child born on 26.9.1992 as per
annexure VI attached to the Memorandum of Settlement arrived at between the bank and the employees of the bank on 1.1.1991.
11. The respondent bank, without granting the maternity leave of three months to the petitioner for the child born on 23.11.1990 as applied for by
her and four months of maternity leave for the second child born on 26.9.1992 as applied for by her, was pleased to initiate disciplinary
proceedings as against the petitioner as though the total period of absence was unauthorised. The initiation of the disciplinary proceedings without
taking into account the entitlement of the petitioner for maternity leave for two confinements is found to be improper.
12. As per the Sixth Memorandum of Settlement of Wages and Service Conditions of Tamil Nadu State Co-operative Bank Employees, the
petitioner is entitled to combine the maternity leave with any other leave by producing valid medical certificate. The petitioner has produced the
medical certificate to the effect that she had developed some complication due to delivery. But, unfortunately, the competent authority did not
consider the said application filed by the petitioner.
13. The charge memorandum was issued to the petitioner on 26.7.1993 where the alleged unauthorised absence of the petitioner right from
1.3.1990 to 26.7.1993 was the subject matter of the enquiry conducted by the Enquiry Officer. But, quite unfortunately, the Enquiry Officer as
well as the disciplinary authority have travelled beyond the said period of absence from 1.3.1990 to 26.7.1993 and have held that she was on
unauthorised absence upto 18.7.1994. The employee was not given opportunity to explain her absence from 27.7.1993 to 18.7.1994. The said
period cannot form part of the enquiry conducted by the respondents as the said period was not the subject matter of the charge memorandum
issued to her. Fair opportunity was not given to the petitioner to explain her position with respect to the aforesaid extended period of absence dealt
with by the Enquiry Officer as well as the disciplinary authority beyond the scope of the charge memorandum.
14. The employee had applied for leave on loss of pay and also for maternity leave annexing alongwith her application the medical certificate issued
by the Doctor concerned. The fact remains that the petitioner was not subjected to medical examination before the Medical Board by the
competent authority for the purpose of rejecting her application for leave on medical grounds. The competent authority is not a qualified medical
practitioner who can examine the employee, verify the medical certificate and take a decision whether the medical certificate was a bogus one or
not. The respondents should have referred the petitioner to the Medical Board, the moment they suspected the genuineness of the medical
certificate produced by the employee. They cannot arbitrarily take a decision that the medical certificates produced were false.
15. The petitioner sought particulars from the respondents as to the availability of any document to show that the medical certificates furnished by
her were false invoking the provisions under the Right to Information Act. The authorities have informed the petitioner vide proceedings in C. No.
059320/HRD/2009-10 dated 23.3.2010 that no document was available with the respondents to show that the medical certificates furnished by
the petitioner were false. The respondents should not have categorized the medical records produced by the petitioner as false without any basis or
foundation.
16. The petitioner sought for production of the attendance register, but, quite unfortunately, the authorities refused to furnish the copy of the
attendance register to the petitioner. The leave record is found to be incomplete. The full particulars found in the leave records sought for by the
petitioner covering the entire period under the charge memorandum was not furnished to the petitioner. The leave register produced by the
petitioner also would show that the petitioner had 13 days of privilege leave and 24 days of sick leave to her credit as on 31.12.1992. There was
no reason assigned by the respondent bank as to why the aforesaid leave available to the credit of the petitioner was not adjusted towards the
leave sought for by the petitioner on medical grounds.
17. As rightly pointed out by the learned Counsel appearing for the petitioner, no witness was examined before the Enquiry Officer and no
document also was exhibited. Without even asking the petitioner to explain as to why a disciplinary proceeding should not be initiated as against
her, straightway charge memorandum was issued wherein also the bank had the audacity to ask her as to why she should not be dismissed from
service. The manner in which the charge memorandum was issued without seeking for any explanation and appointment of the Enquiry Officer
straightaway would go to show that the respondents have already determined to punish the petitioner even before affording sufficient opportunity to
her.
18. The enquiry was not conducted in a fair manner. The proceedings of enquiry conducted by the Enquiry Officer appointed by the disciplinary
authority would go to show that the interaction between the petitioner, the presenting officer and the Enquiry Officer were recorded as a piece of
evidence. The petitioner was not asked as to whether she liked to examine any witness on her side. No list of documents sought to be relied upon
by the Bank was shown in the charge memorandum. None of the persons from the Bank was examined to establish the charges levelled against the
petitioner. Therefore, the entire enquiry proceedings conducted by the Enquiry Officer appointed by the bank and the impugned orders passed by
the disciplinary authority, the appellate authority and the revisional authority are found to be perverse.
19. In view of the above facts and circumstances, the court finds that the entire disciplinary proceedings initiated as against the petitioner and the
impugned orders passed by the respondents are liable to be quashed. Accordingly, the impugned proceedings stand quashed. The writ petition is
allowed. The second and third respondents are directed to grant maternity leave of three months for the first confinement and maternity leave for a
period four months for the second confinement. The other period of leave on loss of pay applied on medical grounds shall also be granted to the
petitioner as leave on loss of pay with medical certificates as those leaves on medical grounds have been sought for preceding and following two
confinements. The respondents are directed to treat the entire period from 1.3.1990 to 18.7.1994 as qualified service for the purpose of increment
and also for the purpose of service benefits. The increments and other service benefits shall be given to the petitioner within two months from the
date of receipt of a copy of this order. There is no order as to costs.
