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2013 DIGILAW 168 (ORI)

Bhimsen Gochhayat v. Zonal Manager, Bank of India

2013-06-27

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. The Petitioner in this Writ Petition challenges the Order Dated 07.06.2011 under Annexure-1 passed by the Zonal Manager, Bank of India, Orissa Zone rejecting the Petitioner's application for grant of compassionate allowance. 2. The Petitioner was appointed initially as a part time sweeper on 23.05.1973 at Basta Branch of Bank of India & subsequently got promoted to the post of Daftary. For committing fraud on the bank the Petitioner was prosecuted under Sections 468/419/420 of the I.P.C. in G.R. Case No. 1049 of 1982 in the Court of Learned J.M.F.C., Balasore & was convicted & sentenced to R.I. for three years for the said offence by Judgment dated 26.08.1987; After initiation of prosecution he had been placed under suspension. On his conviction, the Petitioner was dismissed from service with effect from 26.08.1987 as per the Bank's Regulation. The Petitioner challenged the order of conviction in Criminal Appeal No. 60 of 1984, which was allowed by the Additional Sessions Judge, Balasore by Judgment dated 14.03.1989 & the Petitioner was acquitted of the charges. After his acquittal in appeal, the Bank initiated a disciplinary proceeding against him & issued charge-sheet-cum suspension order suspending him with effect from 12.12.1982. In the disciplinary proceeding, he was found guilty & was dismissed from service by Order Dated 11.05.1991. The Petitioner preferred an appeal challenging the order of dismissal & the Appellate authority by Order Dated 28.04.1995 modified the order of dismissal from service to termination of service with three months pay & allowance in lieu of notice vide Annexure-2. Aggrieved by the Appellate order of punishment the Petitioner filed OJC No. 3143 of 1997 before this Court. This Court allowed the Writ Petition by Judgment dated 15.03.2007 & directed the Opp. Parties to reinstate the Petitioner with 40% back wages & consequential benefits from the date of dismissal to the date of reinstatement. The Opp. Parties challenged the Judgment passed in the Writ Petition by filing SLP No. 7357 of 2007 in the Hon'ble Supreme Court. The SLP was disposed of on 12.08.2009 & the Judgment of this Court was set aside & the matter was remanded for fresh disposal by this Court. On fresh hearing the Writ Petition was dismissed by Order Dated 14.03.2010 with the observation that the charges proved against the Petitioner are quite grave & the punishment of dismissal from service does not seem to be disproportionate. On fresh hearing the Writ Petition was dismissed by Order Dated 14.03.2010 with the observation that the charges proved against the Petitioner are quite grave & the punishment of dismissal from service does not seem to be disproportionate. The Petitioner moved the Hon'ble Supreme Court in SLP No. 1859 of 2010 challenging this Court's order, but the SLP was dismissed on 13.12.2010. Thereafter, the Petitioner approached the authority for pension/compassionate allowance under Regulation 31 of the Bank's Regulation 1995 by making a representation on 22.12.2010 vide Annexure-3. Since no prompt action was taken on his representation, the Petitioner approached this Court in W.P.(C) No. 3804 of 2011 & by Order Dated 24.02.2011 this Court directed the Bank authorities to consider & dispose of the representation of the Petitioner within a period of two months. 3. Thereafter by the impugned Order Dated 07.06.2011 (Annexure-1), the Zonal Manager of the Bank has rejected the representation of the Petitioner indicating that the Petitioner was originally governed under Bank's Contributory Provident Fund Regulations & has received full amount of CPF on 25.06.2000 & that he has never exercised his option for pension after coming into force of the Bank of India Employees’ Pension Regulations, 1995 &, therefore, the Petitioner was not entitled to any pension. So far as the prayer for grant of compassionate allowance is concerned, the authority observed in the impugned order that the charges against the Petitioner were very serious in nature involving fraud, forgery, misappropriation, theft of CANPAD & his punishment was upheld by this High Court & also the Supreme Court & therefore, he does not deserve special consideration for sanction of compassionate allowance. 4. It is the submission of the Learned Counsel for the Petitioner that the Petitioner, though was initially dismissed from service by the disciplinary authority, the said punishment was substituted by punishment of termination of service by the Appellate authority & that even though he is not entitled to pension for imposition of such punishment, he was entitled to compassionate allowance as per the Regulation 31 of the Bank's Regulation & therefore, denial to grant the same on the ground that the charges were serious in nature, is contrary to such regulation & unjustified. Learned Counsel for the Opp. Learned Counsel for the Opp. Party-Bank, on the other hand, submits that the claim of compassionate allowance by an employee, who has been dismissed or terminated is not as of right but at the discretion of the authority only where his case deserves special consideration as required under the Regulation & that the charges against the Petitioner being very serious in nature, the Petitioner's case does not deserve special consideration & therefore, the discretion exercised by the authority is quite justified & needs no interference. 5. The Appellate order under Annexure-2 passed by the Appellate authority of the Bank reveals that as Daftary the Petitioner practised fraud at Balasore Branch in collusion with outsiders by using Credit Authorisation Note (CAN) containing forged signatures of two officials of Lindsay Street Branch of the Bank's Eastern Zone. For practicing fraud, the Petitioner had stolen the entire pad of CAN from the Branch & kept the same at his residence. He had used the broken pieces of Branch Receipt Scroll rubber stamp to affix Lindsay Street Branch on CAN No. 226007. He had filled in the said CAN on 09.08.1982 for Rs. 35,000 favouring one outsider namely, Babaji Nayak with forged signatures of the authorized officials in order to defraud Balasore Branch of the Bank. 6. Regulation 31 of the Banks Regulation provides for sanction of compassionate allowance in favour of an employee, who has been terminated from his service. The said regulation which has been quoted in Annexure-1 is reproduced below :- “31. 6. Regulation 31 of the Banks Regulation provides for sanction of compassionate allowance in favour of an employee, who has been terminated from his service. The said regulation which has been quoted in Annexure-1 is reproduced below :- “31. Compassionate Allowance:- (1) An employee, who is dismissed or removed or terminated from service, shall forfeit his pension: Provided that the authority higher than the authority competent to dismiss or remove or terminate him from service may, if (i) such dismissal, removal, or termination is on or after the 1st day of November 1993 & (ii) in the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered up to the date of his dismissal, removal or termination." It reveals from the aforesaid regulation that an employee, who is dismissed or removed or terminated from service after the 1st day of November, 1993 may be granted compassionate allowance in case the authority concerned considers his case ‘deserving special consideration’ at the rate not exceeding 2/3rd of pension which would have been admissible to him on the basis of qualifying service rendered up to the date of dismissal or removal or termination. 7. On query by the Court, Learned Counsel for the parties stated that the expression, ‘deserving of special consideration’ in Regulation 31 has not been defined any where nor is there any guideline to consider the same. While the Petitioner's Counsel failed to explain the meaning of such expression, the Learned Counsel for the Opp. Parties submitted that though punishment of dismissal can be awarded to an employee for any gross misconduct enumerated in Regulation 5 of the Banks Regulation, all such gross misconducts cannot be of the same gravity &, therefore in case the misconduct consists of fraud, forgery & misappropriation which are prejudicial to the interest of the Bank or causes serious loss, the-case may fall outside the expression & the authority in its discretion may refuse to sanction compassionate allowance. 8. 8. Panmateria provision is available under Rule 41 of the CCS (Pension) Rules which also uses the expression 'deserving of special consideration' for grant of compassionate allowance.' Government of India have also issued an office memorandum formulating 'Guiding principles for grant of Compassionate Allowance', which was taken note of by the Delhi High Court in the case of Ex. ASI Shadi Ram v. Government of NCT of Delhi & others : 2009 (4) SLR 52. The Guiding principles formulated by the Government of India have been extracted in paragraph-9 of the said Judgment as follows : "In support of his case before the Tribunal, the Petitioner also relied upon the "Guiding Principles for Grant of compassionate Allowance", formulated by the Government of India in OM dated 22nd April, 1940 for applying the aforesaid Rule 41 CCS (Pension) Rules, under which all applications for Compassionate Allowance are to be considered. This OM (which is hereinafter referred to as the "Guidelines") is reproduced below for convenience :- "Guiding principles for the grant of Compassionate Allowance. It is practically impossible in view of the wide variations that naturally exist in the circumstances attending each case, to lay down categorically precise principles that can uniformly be applied to individual case. Each case has, therefore, to be considered on its merits & a conclusion has to be reached on the question whether there were any such extenuating features in the case as would make the punishment awarded, though it may have been necessary in the interests of Government, unduly hard on the individual. In considering this question, it has been the practice to take into account not only the actual misconduct or course of misconduct which occasioned the dismissal or removal of the officer, but also the kind of service he has rendered. Where the course of misconduct carries with it the legitimate inference that the officer's service has been dishonest, there can seldom be any good case for a Compassionate Allowance. Poverty is not an essential condition precedent to grant of a Compassionate Allowance, but special regard is also occasionally paid to the fact that the officer has a wife & children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance." 9. Poverty is not an essential condition precedent to grant of a Compassionate Allowance, but special regard is also occasionally paid to the fact that the officer has a wife & children dependent upon him, though this factor by itself is not, except perhaps in the most exceptional circumstances, sufficient for the grant of a Compassionate Allowance." 9. The aforesaid guiding principles are only illustrative in nature indicating certain factors which may be taken into consideration in determining whether a particular case deserves special consideration. Each case has to be decided on the basis of its attending circumstances & no precise or uniform principle can be laid down. However, the actual misconduct & its gravity is definitely a factor to be taken into consideration or borne in mind, so also any extenuating feature in the case as would make the punishment awarded unduly harsh on the individual. The fact that the dismissed employee has a large family with wife, children & other dependents to support & has no other source of income should also be relevant though poverty itself may not be an essential condition for considering the case as deserving of special consideration. 10. Regulation 5 of the Banks Regulation in the case at hand enumerates several gross misconducts, which may entail dismissal of an employee. Such gross misconduct inter alia includes- (a) engaging in any trade or business outside the scope of his duties except with the written permission of the Bank; (b) xx xx xx (c) drunkenness or riotous or disorderly or indecent behaviour on the premises of the bank; (d) willful damage or attempt to cause damage to the property of the bank or any of its customers; (e) willful insubordination or disobedience of any lawful & reasonable order of the management or of a superior; & the like. The above misconducts though grouped under the category of "gross misconduct" which may entail dismissal from service, are definitely not as grave as practicing fraud, forgery, misappropriation, fabrication of documents etc in order to misappropriate bank's money. Therefore, the nature of misconduct may also playa role in determining whether a case deserves special consideration for grant of compassionate allowance. 11. In the instant case, the authority concerned has taken into consideration the gravity of the misconduct for which the Petitioner was dismissed or terminated from service. Therefore, the nature of misconduct may also playa role in determining whether a case deserves special consideration for grant of compassionate allowance. 11. In the instant case, the authority concerned has taken into consideration the gravity of the misconduct for which the Petitioner was dismissed or terminated from service. The gravity of the charge was also taken note of by the High Court as also the Hon'ble Supreme Court. No extenuating factor exists which would entail imposition of a lesser punishment. In his representation to the authority for sanction of compassionate allowance, nothing has been indicated by the Petitioner about his financial distress or poverty. In the aforesaid circumstances, I find no infirmity in the order of Opp. Party No. 2 in refusing to grant compassionate allowance to the Petitioner. The Writ Petition is, therefore, dismissed. No costs.