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2009 DIGILAW 144 (CAL)

Swapan Kumar Chatterjee v. United Bank of India

2009-02-24

DIPANKAR DATTA

body2009
Judgment : DIPANKAR DATTA, J. (1) The petitioner joined the service of United Bank of India (hereafter the Bank) as a Cash Clerk on 13.8.1969. Towards the late eighties, he was functioning as Head Cashier of the Howrah branch of the Bank when he was charged with defalcation of fund of the Bank in course of discharging duty. On enquiry that followed, he was dismissed from service by the disciplinary authority vide order dated 8.3.1988. The order of the disciplinary authority was affirmed by the appellate authority. (2) Questioning the order of penalty and the appellate order, the petitioner had the occasion to move the Court of Writ by filing an application in 1993. The writ application was dismissed by a learned Single Judge on 13.6.2002. Feeling aggrieved thereby, the petitioner preferred an intra Court appeal. The appeal was disposed of by the Division Bench by judgment dated 6.8.2003 and 8.8.2003 with the following directions: "In view of the eloquent persuasion of Mr. Sanyal, we are tempted to remit this matter to the authority concerned to re-consider the question in the Light of the observation made in paragraphs 23 and 24 of the said G. Srinivasa Reddys case. It would be open to the authority to pass any order that might deem fit and proper according to their own wisdom and discretion without being influenced by any observation made in this order. In the course of consideration, the authority should give the petitioner an opportunity of hearing through a notice giving at least a fortnights time. This exercise may be completed by the Bank authorities within a period of twelve weeks. We make it clear that we are not expressing any opinion with regard to the kind or character or quantum of punishment that might be inflicted by the Bank authorities. This exercise may be completed by the Bank authorities within a period of twelve weeks. We make it clear that we are not expressing any opinion with regard to the kind or character or quantum of punishment that might be inflicted by the Bank authorities. However, the submission of the appellant/petitioner recorded in paragraph 11 above may be treated as submission made before the authority concerned for its consideration." (3) Acting in compliance with the order of the Division Bench, the appellate authority considered the appeal with sympathy and compassion and on appreciation of the hardship caused to the petitioner by imposition of punishment of dismissal by the disciplinary authority substituted the penalty by passing an order dated 26.9.2003 which reads as under: "Reduction of your Basic Pay by 5 (five) stages lower in your time scale of pay for a period of three years. You will not earn any increment during the period of such reduction and on the expiry of such period, the reduction will have the effect of postponing the future increments". (4) It was further indicated in the appellate order that the petitioner would not be entitled to pay and allowances since 8.3.1988 till date of resumption of duty and that he would not be entrusted with the work of dealing cash during the remaining period of his service. In terms of the order of the appellate authority, the petitioner resumed duty on 6.10.2003. An order dated 16.3.2004 was passed directing that the order of the appellate authority referred to above would be effective from 6.10.2003. An order was also passed deducting Rs.26,360/-from the gratuity of the petitioner on account of misappropriation of funds. In due course of time, on attaining the age of superannuation, the petitioner retired on 30.6.2004. (5) While the earlier writ application was pending, the Bank had introduced the United Bank of India (Employees) Pension Regulations, 1995 (hereafter the Regulations). An order was also passed deducting Rs.26,360/-from the gratuity of the petitioner on account of misappropriation of funds. In due course of time, on attaining the age of superannuation, the petitioner retired on 30.6.2004. (5) While the earlier writ application was pending, the Bank had introduced the United Bank of India (Employees) Pension Regulations, 1995 (hereafter the Regulations). The Regulations were applicable to employees of the Bank who were in service before the notified date and continued to be in service on or after the notified date, and who would exercise option in writing within 120 days from the notified date to become a member of the fund upon an authorization being given that the entire contribution of the Bank towards provident fund along with interest accrued thereon should be transferred to the credit of the pension fund to be constituted for the purpose under Regulation 5 of the Regulations. (6) On or about 19.10.1995, the General Manager (Personnel) of the Bank issued a circular regarding implementation of the Regulations. Clause 3 of the circular laid down conditions of eligibility as well as procedure for exercising option and refund of Banks contribution to provident fund with interest. The options were to be exercised by 25.1.1996 and once exercised, would be final and irrevocable. (7) Since the petitioner was a dismissed employee at the material time, he did not have the scope to exercise option for coming over to the pension scheme on 25.1.1996. Less than four months from the date of superannuation, the petitioner had expressed interest by his letter dated 10.3.2004 to opt for the pension scheme of the Bank instead of provident fund. The prayer of the petitioner to permit him to exercise option for pension was turned down by the Board of Directors of the Bank at its meeting held on 7.8.2004. The said decision was communicated to the petitioner by the Chief Manager of the Bank vide letter dated 12.8.2004. (8) In this application filed on 17.8.2005, the order of the appellate authority dated 26.9.2003, the order dated 16.3.2004 holding that the order of punishment would be effective from 6.10.2003, the order of the Board of Directors of the Bank refusing the petitioners prayer for exercising option for pension and deduction of Rs.26,360/-are the subject matter of challenge. (8) In this application filed on 17.8.2005, the order of the appellate authority dated 26.9.2003, the order dated 16.3.2004 holding that the order of punishment would be effective from 6.10.2003, the order of the Board of Directors of the Bank refusing the petitioners prayer for exercising option for pension and deduction of Rs.26,360/-are the subject matter of challenge. The petitioner has also prayed for orders on the respondents to finalise retrial benefits due to him and to release such benefits without any delay. (9) At the hearing, however, Mr. Sanyal, learned Counsel appearing for the petitioner confined his argument only to the point of non-grant of permission by the Board of Directors of the Bank to the petitioner to exercise option for pension. Two facts stand out from the petition viz. (1) the order refusing the petitioner permission to opt for pension is bereft of reason; and (2) absence of material to indicate that the petitioner had any legal right to claim that he should be allowed to opt for the pension scheme since due to circumstances beyond his control, he could not opt for it. If the petitioner had no right in law to claim that he should be allowed permission to opt for the pension scheme even while he was in service from October, 2003 to June, 2004 consequent to implementation of the order of the appellate authority, this Court would have been justified in dismissing the writ application solely on the ground that the petitioner had failed to show that he has a legal right to maintain it. (10) But the situation appears to have taken a change for the better for the petitioner in view of a document which has been annexed to the counter-affidavit filed by the Bank. It appears to be a letter dated 28.4.1999 addressed to the Chief Executives of Public Sector Banks excluding State Bank of India, issued by the Deputy Secretary to the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division). It reads thus: "Sub : Eligibility for pension Government has been getting representations from various quarters making a request for providing an opportunity for exercising option in favour of pension to those who could not do so due to circumstances beyond their control. One such situation referred to is that the employees who were out of service on account of dismissal/removal, etc. One such situation referred to is that the employees who were out of service on account of dismissal/removal, etc. at the time of notification but were subsequently reinstated in service with continuity of service on disposal of an appeal or by virtue of court order. The matter has been examined and it has now been decided that banks, in the first instance may examine such request at their end and in case they are satisfied that there were circumstances beyond the control of the applicant due to which he could not exercise his option within the stipulated period, they may refer such cases to Government along with a self-contained note indicating the circumstances which deprived them to exercise such option. Efforts, if any, made by the bank to contact such persons during the relevant period to enable them to exercise their option may also be indicated". (11) A bare perusal of the aforesaid extract makes it clear that a request of an employee who was out of service on account of dismissal/removal, etc. at the time of notification but was subsequently reinstated in service with continuity of service either on disposal of an appeal or by virtue of an order of Court praying for permission to opt for pension deserves consideration by the Bank itself which must give a decision as to whether the employee concerned due to circumstances beyond his control was prevented from exercising option within the stipulated period. Once a satisfaction to this effect is reached by the Bank, the case could be referred to the Government for taking necessary decision. (12) It is evident from the communication dated 12.8.2004 that the petitioners prayer was rejected by the Board of Directors by a laconic order that his prayer could not be granted "at this stage". Having regard to the facts and circumstances of the present case, there cannot be any doubt that the petitioner was, in fact, prevented by cause beyond his control from exercising option in terms of the concerned notification and by the due date. However, cases of public sector bank employees similar to that of the petitioner had been considered by the Government resulting in issuance of the letter dated 29.4.1999. It has not been shown to Court that the said letter has been revoked. However, cases of public sector bank employees similar to that of the petitioner had been considered by the Government resulting in issuance of the letter dated 29.4.1999. It has not been shown to Court that the said letter has been revoked. In terms of the said letter, the Board of Directors of the Bank ought to have given the reasons why it did not consider the petitioners claim entitled to be referred to the Government for a decision. The order being bereft of reason, and no explanation having been given in the counter affidavit filed by the Bank indicating the materials which weighed in the mind of the Board of Directors to negate the prayer of the petitioner, the Court is disabled to examine as to whether the Board of Directors considered relevant materials and discarded extraneous factors while reaching the decision it did in its meeting held on 7.8.2004. The communication letter dated 12.8.2004 only records the conclusion reached by the Board of Directors and not the basis on which such conclusion was reached. The twin tests propounded by this Court in its decision in the matter of Uniworth Resorts Limited reported in 2007 (4) CHN 712 squarely applies also in respect of an administrative order affecting ones right and, therefore, such decision of the Board of Directors which has been communicated cannot be sustained in law on the authority thereof. (13) This Court has considered the objection of Mr. Majumder, learned Counsel for the Bank, relying on the decision of the Apex Court in State of Uttar Pradesh vs. Harish Chandra reported in AIR 1996 SC 2173 to the effect that the petitioner had no subsisting right on the date of filing the writ petition and it is grossly delayed. It is true that from the writ application itself infringement of the legal right based whereon the Court of Writ was approached is not discernible. The learned Judge who admitted the writ application could well have dismissed it on the ground that it was not maintainable since infringement of any legal right of the petitioner had not been shown. It is true that from the writ application itself infringement of the legal right based whereon the Court of Writ was approached is not discernible. The learned Judge who admitted the writ application could well have dismissed it on the ground that it was not maintainable since infringement of any legal right of the petitioner had not been shown. But once the writ application has been admitted and the parties have exchanged their affidavits and it appears to the Court from the counter affidavit of the respondents that a legal right and infringement thereof could be traced on construction of a document (which is in the nature of an administrative direction) together with the order impugned, the Court would not be justified in turning a blind eye to such document (administrative direction) and to dismiss the writ application on the ground that on the date it was presented, the petitioner failed to demonstrate infringement of a legal right. To say that an administrative order can never confer any right would be too wide a proposition and issuance of mandamus to enforce right arising out of administrative directions is permissible in view of the decision of the Apex Court in Union of India vs. K.P. Joseph and ors. reported in AIR 1973 SC 303 . (14) It is equally true that the writ application was filed in August, 2005 when the petitioner had admittedly retired a year back. However, it is worth noticing that the decision of the Board of Directors rejecting the prayer of the petitioner to exercise option for pension was taken in a meeting of 7.8.2004 and communicated to the petitioner on 12.8.2004, well after the petitioners retirement. If a decision has been taken by an authority affecting the petitioners right in relation to claimed service benefit after his retirement, the petitioner could not have been expected to raise such issue while he was in service without there being a decision on the point by the Board of Directors. (15) A writ application may be dismissed on the ground of unreasonable and unexplained delay in approaching the Court but in the present case the petitioner has approached the Court of Writ a year after the decision dated 7.8.2004 of the Board of Directors was communicated to him by the letter dated 12.8.2004. (15) A writ application may be dismissed on the ground of unreasonable and unexplained delay in approaching the Court but in the present case the petitioner has approached the Court of Writ a year after the decision dated 7.8.2004 of the Board of Directors was communicated to him by the letter dated 12.8.2004. On the authority of the decision of the Apex Court reported in Shiv Dass vs. Union of India reported in 2007 AIR SCW 1487, wherein it has been held that even in respect of pension claims a period of three years would be reasonable, this writ application is held to be maintainable. (16) For the reasons aforesaid, the decision of the Board of Directors dated 7.8.2004 as communicated by the letter dated 12.8.2004 stands set aside. The Board of Directors of the Bank is directed to consider the petitioners prayer for exercising option for pension afresh, without being influenced by its earlier decision, strictly in accordance with the terms of the letter dated 28.4.1999 as early as possible but positively within a period of 8 weeks from date of communication of this order. Further follow-up action shall be initiated, also in accordance with law. (17) The writ petition stands allowed to the extent mentioned above. Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.