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2006 DIGILAW 682 (KAR)

S. VISHWANATH v. CENTRAL BANK OF INDIA, MUMBAI

2006-08-23

CYRIAC JOSEPH, K.RAMANNA

body2006
JUDGMENT Cyriac Joseph, C.J. (Oral): The appellant was a Manager in the Central Bank of India. Disciplinary proceedings were initiated against him and a punishment of removal from service was imposed on him by order dated 26-9-1987 passed by the fourth respondent-Chairman and Managing Director, Central Bank of India. The said order dated 26-9-19~7 was challenged by the appellant in Writ Petition No. 235 of 1993 which was disposed of by a learned Single Judge of this Court as per Annexure-B, judgment dated 11-6-2001. As per Annexure-B, judgment, the impugned order of the fourth respondent was set aside and a direction was issued to the respondent-Bank to reinstate the petitioner into service with all monetary and service benefits except for the period from the date of dismissal till he approached the Court. Liberty was reserved to the management of the respondent-Bank to proceed with the enquiry, if they so desired, from the stage the defects were noticed by the Court. The respondent-Bank filed Writ Appeal No. 4057 of 2001 against Annexure-B, judgment dated 11-6-2001. The said writ appeal was disposed of by a Division Bench of this Court· as per Annexure-C, judgment dated 20-7-2004. In Annexure-C, judgment, the Division Bench found that the punishment of removal from service imposed on the respondent therein (appellant herein) appeared to be harsh. However, the Division Bench observed that it is a matter which the Disciplinary Authority or the Chairman and Managing Director of the Bank as the case may be should consider. According to the Division Bench, it was not for the Court to consider the said aspect. Accordingly, the writ appeal was allowed setting aside the order of the learned Single Judge and directing that either the Disciplinary Authority or the Chairman and Managing Director of the Bank shall consider "whether a lesser penalty or punishment is not called for in the facts and circumstances at hand". Pursuant to the direction in Annexure-C, judgment, the fourth respondent-Chairman and Managing Director, by his order dated 16-9-2004 (Annexure-D), awarded to the appellant the penalty of compulsory retirement effective from the date of imposition of the earlier penalty of removal from service. Aggrieved by Annexure-D, order, the appellant filed Writ Petition No. 47717 of 2004 praying to quash Annexure-D, order dated 16-9-2004. The grounds raised in the writ petition were contained in paragraph 8 of the writ petition which reads as follows.- "8. Aggrieved by Annexure-D, order, the appellant filed Writ Petition No. 47717 of 2004 praying to quash Annexure-D, order dated 16-9-2004. The grounds raised in the writ petition were contained in paragraph 8 of the writ petition which reads as follows.- "8. That the penalty imposed on the petitioner by the impugned order is based on extraneous considerations like delay in preferring the writ petition which had specifically been rejected by this Hon'ble Court, suffers from predetermination, lacks in bona (ides, suffers from non-application of mind to the facts and circumstances of the case, suffers from non-consideration of the specific observations made by this Hon'ble Court while remanding the matter for reconsideration, penalty is excessive, unconscionable, grossly disproportionate, is in the nature of victimization, unfair, unjust, irrational and unreasonable and contrary to and violative of Articles 14 and 16(1) of the Constitution of India". The learned Single Judge, after hearing the Counsel for the parties, came to the conclusion that when the authorities are imposing a lesser punishment which is in substitution of earlier punishment of removal, necessarily, the lesser punishment of compulsory retirement has to date back to the date of original punishment. The learned Single Judge could not find any reason to find fault with the impugned order. Accordingly, the writ petition was dismissed as per order dated 9-1-2006. Challenging the said order dated 9-1-2006 passed in Writ Petition No. 47717 of 2004, the petitioner in the writ petition has filed this writ appeal. 2. When this appeal came up for consideration on 28-7-2006, learned Counsel for the appellant was directed to serve a copy of the appeal memorandum on the Counsel for the Bank. Accordingly, copy of the appeal memorandum was served on the Counsel for the Bank and the Counsel has appeared. 3. We have heard learned Counsel for the appellant as well as the learned Counsel for the respondent. 4. The first contention urged by the learned Counsel for the appellant is that even though in Annexure-C, judgment, a Division Bench of this Court had held that the punishment of removal from service appeared to be harsh and directed the respondents herein to consider whether a lesser penalty or punishment is not called for, in the facts and circumstances of the case, the punishment of compulsory retirement now imposed on the appellant is not in effect, less harsh than punishment of removal from service earlier imposed. According to the learned Counsel, though the punishment is only a compulsory· retirement, the appellant will not be entitled to any significant retiral benefits. We are not impressed by this argument. No explanation is necessary to hold that compulsory retirement is a lesser punishment than removal from service. Even the effect and consequence of an order of compulsory retirement are less harsh than the effect and consequence of an order of removal from service. Hence it cannot be contended that the punishment now imposed is not less harsh than the punishment earlier imposed. Whether the punishment now imposed is disproportionate to the charge proved against the appellant is an entirely different question. We are not called upon to decide that question in this writ appeal since, as rightly observed in Annexure-D, judgment, it is a matter primarily to be considered by the Disciplinary Authority. At any rate, we may observe that considering the facts and circumstances of the case and the history of this litigation, we do not consider that the punishment of compulsory retirement is disproportionate to the charges proved against the appellant. 5. The second contention raised by the learned Counsel for the appellant is that Annexure-D, order is illegal to the extent that the penalty of compulsory retirement has been imposed with retrospective effect. Learned Counsel points out that as per Annexure-D order, the penalty of compulsory retirement will be effective from the date of imposition of the earlier penalty of removal. It is contended that the fourth respondent could not have imposed the penalty with retrospective effect. We are not impressed by this argument also. Even though the earlier order imposing penalty of removal from service was set aside in Annexure-B, judgment of the learned Single Judge, the said judgment of the learned Single Judge was set aside by the Division Bench in Annexure-C, judgment. The effect of Annexure-C, judgment is that the original order of imposing the penalty of removal from service was revived and was operative and the respondent-Bank was only directed "to consider whether a lesser penalty or punishment is not called for in the facts and circumstances of the case at hand". The Division Bench did not quash the order imposing penalty of removal from service or direct the Bank to keep the said order in abeyance. The Division Bench did not quash the order imposing penalty of removal from service or direct the Bank to keep the said order in abeyance. The order of removal from service remained in force till a fresh order was passed imposing the penalty of compulsory retirement. Thus after reconsidering the matter in compliance with the direction in Annexure-C, judgment, the fourth respondent was only substituting the penalty of removal from service. When the original penalty is being substituted by another penalty, the latter penalty will take effect from the date on which the original penalty was imposed. In this view of the matter, we agree with learned Single Judge that the respondents cannot be found fault with, for imposing the penalty of compulsory retirement with effect from the date on which the penalty of removal from service was imposed. 6. Learned Counsel for the appellant placed reliance on the decision of the Supreme Court in R. Jeevaratnam v State of Madras1. We have carefully read the said judgment. First of all, we may observe that the facts of the said case are not similar to the facts of this case. In the case before the Supreme Court, the employee was dismissed from service with effect from the date on which he was placed under suspension. The issue raised before the Supreme Court was whether such retrospective dismissal from service with effect from the date of suspension was valid or not. In the case before us, there is no removal from service with effect from any date of suspension or any such anterior date. The removal from service was ordered with effect from the date of the order. Though the said order was challenged before this Court, the Division Bench did not quash the order and the Division Bench simply directed the respondent Bank to consider whether any lesser punishment was called for. Even though the Division Bench observed that the punishment of removal from service appeared to be harsh, the Court left the decision to the Bank itself. On reconsideration of the matter, in compliance with the direction of the Court, the Bank substituted the original punishment of removal from service with a punishment of compulsory retirement. Therefore, the facts of this case are not similar to the facts of the case before the Supreme Court. On reconsideration of the matter, in compliance with the direction of the Court, the Bank substituted the original punishment of removal from service with a punishment of compulsory retirement. Therefore, the facts of this case are not similar to the facts of the case before the Supreme Court. Even otherwise, the Supreme Court in the said decision did not hold that the order of dismissal with retrospective effect from the date of suspension was invalid. On the contrary, the Supreme Court took note of the view taken by the High Court that the order of dismissal with retrospective effect from the date of suspension was valid in its entirety but declined to express any opinion in the matter. The Supreme Court proceeded to consider whether the dismissal order was valid and effective from the date of the order. The validity of the order was upheld and the appeal of the employee was dismissed. Hence, the above mentioned decision of the Supreme Court cannot in any way support the case of the appellant. 7. Learned Counsel for the respondent invited our· attention to the decision of the Supreme Court in Punjab Dairy Development Corporation Limited and Another v Kala Singh and Others 1, wherein, the Supreme Court, following the judgment of the Constitution Bench in P.H. Kalyani v Air France, Calcutta2, held that when the Labour Court recorded a finding that the domestic enquiry was defective and gave opportunity to adduce evidence by the management and the workman and thereafter recorded the finding that the dismissal was valid, it would relate back to the date of the original dismissal and not to the date of the judgment of the Labour Court .. Even though the facts are not exactly similar, learned Counsel is right in pointing out that the principle of the subsequent decision relating back to date of the original decision was recognised by the Supreme Court. 8. Learned Counsel for the respondent is also right in contending that if the contention of the appellant is accepted, an anomalous situation would arise. Learned Counsel points out that the original order of removal from service was passed on 26-9-1987. The appellant would have retired from service on superannuation on 31-1-2003. The impugned order of the fourth respondent in compliance with the direction in Annexure-C, judgment was passed only on 16-9-2004. Learned Counsel points out that the original order of removal from service was passed on 26-9-1987. The appellant would have retired from service on superannuation on 31-1-2003. The impugned order of the fourth respondent in compliance with the direction in Annexure-C, judgment was passed only on 16-9-2004. If the contention that the compulsory retirement cannot relate back to the date of the original order of removal from service, i.e., 26-9-1987 and that the compulsory retirement will be effective only from the date of Annexure-D, order, i.e. 16-9-2004, the appellant will have to be treated as continuing in service even after the date of his retirement on superannuation. In support of this contention, learned Counsel relied on the decision of the Supreme Court in Mani Ram v State of Haryana and Othersl. In that case, the normal age of retirement of the employee was 58 years. He attained the age of 55 years on 9-6-1989 and was then served a notice of compulsory retirement. The subsequent order of the Competent Authority was passed only on 6-11-1995 by which time the employee was more than 61 years of age. In such circumstances, the Supreme Court observed that if the order of compulsory retirement is treated to have been passed on 6-11-1995, it would mean that the appellant continued in service even beyond his normal age of retirement, which was 58 years. The Supreme Court further observed that it would not only obliterate the order of compulsory retirement but would also give him extension in service. Hence we find force in the contention of the learned Counsel for the respondent that if the order of compulsory retirement is effective only from the date of the order, then it will result in an anomalous situation of the appellant continuing in service even beyond the date of retirement on superannuation. 9. No other contention was raised by either of the parties. 10. In the above circumstances, we hold that there is no merit in the writ appeal. Writ appeal is dismissed.