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2014 DIGILAW 37 (CAL)

Mukul Chandra Bhattacharyya v. Union of India

2014-01-17

DIPANKAR DUTTA

body2014
JUDGMENT : Dipankar Dutta, J. The petitioner, at the material point of time, was working as an officer of the United Bank of India (hereafter the Bank). In pursuance of a disciplinary proceeding initiated by the Bank against him, the petitioner was dismissed from service on March 21, 1988. The order of dismissal was carried in appeal, unsuccessfully. The appellate authority by an order dated October 12, 1988 dismissed the appeal. 2. Questioning the propriety and/or legality of the order of dismissal, since confirmed in appeal, the petitioner had invoked the writ jurisdiction of this Court. By an order dated February 4, 1999, the writ petition was dismissed. The petitioner preferred an appeal before the Hon'ble Division Bench. In the judgment and order dated January 21, 2003 by which the writ appeal was disposed of, the Hon'ble Division Bench observed that the allegations against the petitioner did not suggest a case of gross misconduct but undoubtedly the allegations were more in the nature of indiscretion and error of judgment on his part. The following direction was consequently issued : "Therefore, we direct the Appellate Authority to consider with this aspect of the matter while passing the final order. It is open to the Appellate Authority to pass any order that they may find suitable having regard to the fact and circumstances of the case. It is, however, made clear that in the event the appellate Authority decides to reinstate the appellant after imposition of some punishment, the appellant will not be entitled to get anything by way of back wages or arrears of salary." 3. Acting in compliance with the judgment and order dated January 21, 2003, the appellate authority of the petitioner passed an order dated May 12, 2003. Paragraphs 5 and 6 of the order being relevant are quoted below : "5. Therefore in exercise of power conferred upon me under United Bank of India Officer Employees (Discipline & Appeal) Regulations, 1976, I hereby impose upon you the under mentioned major penalty, in supersession of punishment imposed by Disciplinary Authority under his order dated 21-03-1988, in term of Regulation-4(f) of the said Regulation, 1976 which shall be effective from 21-03-1988:- Reduction of your Basic Pay by 5 (five) stages lower in your time scale of pay for a period of five years. You will not earn any increment of pay during the period of such reduction and on the expiry of such period, the said reduction will have the effect of postponing the future increments. 6. You shall not be paid any pay and Allowances since 21-03-1988 till the date of your resumption of duties in terms of this letter." 4. The petitioner was allowed to resume duty on May 24, 2003 in pursuance of the aforesaid order of the appellate authority. He found his pay to have been incorrectly fixed, contrary to the order of the appellate authority. Several representations followed at his instance for proper fixation of pay. In due course of time, the petitioner attained the age of superannuation and retired from service on October 31, 2009. 5. One of his representations dated April 2, 2009 addressed to the General Manager (Resource Management) was responded to by the Chief Manager (D & IR). Insofar as the allegation of improper fixation of pay is concerned, it was observed therein as follows : "(1) Proper fitment of salary from 24.05.2003: The salary fitment has been found to be correct, which is as under: In terms of the order dated 12.05.2003 of the Appellate Authority; you had inflicted with the punishment of reduction of basic pay by five stages with effect from 21.03.2003. The Appellate Authority vide his above order had also clarified that you will not be paid any pay and allowances since 21.03.1988 till the date of his resumption of duties by him at Bihar Regional Office, Patna on 24.05.2003. As per the above order, you will not be entitled to any pay and allowances from 21.03.1988 to 23.05.2003. Under the circumstances fixation of your basic pay was made as under - Basic pay as on 21.03.88 - Rs. 2,460/- (reduced from Rs. 3,060/- in effect of the punishment imposed) Basic pay (Notional) as on 21.03.93 - Rs. 6, 210/- (after the period of rigor in the revised pay scale) Basic pay on the day of resumption of duty on 24.05.2003 - Rs. 13,820/- (fitment in the corresponding stage in the revised scale of pay in vogue) Subsequently, you have been allowed annual increment on and from 01.7.2003." 6. The petitioner by the aforesaid representation had also prayed for computation of the length of his service period in the Bank for the purpose of calculation of post-retiral benefits. 13,820/- (fitment in the corresponding stage in the revised scale of pay in vogue) Subsequently, you have been allowed annual increment on and from 01.7.2003." 6. The petitioner by the aforesaid representation had also prayed for computation of the length of his service period in the Bank for the purpose of calculation of post-retiral benefits. This is what the Chief Manager observed in regard thereto : "(4) Computation & Length of Service Period: As per banks record you have joined as Clerk in the service of Bank on 29.07.1971, promoted to Officer Cadre on 13.09.1977. you had placed under suspension on dated 14.02.1986 and thereafter dismissed from Banks service on 21.03.1988. Upon modification of the punishment vide order dated 12.05.2003, you resumed duty on 24.05.2003 on being reinstated. Back wages and arrear salary for the period 21.03.1988 to 24.05.2003 were not allowed. Since there is no specific order for discontinuation of service from the period of 14.02.1986 to 23.05.2003, the said period will be counted as service. Bank had never informed you about discontinuation of the period from service. Hence, the point raised is purely apprehensive and premature." 7. The petitioner did not feel satisfied with the response and had represented once again through his wife on August 10, 2009, i.e. a few days before his retirement. The Chief Manager (D & IR) responded by his letter dated September 5, 2009. The last paragraph of the response reads as follows : "(iii) The Hon'ble Court in its judgment dated 21.01.2003 had inter alia observed that in the event the Appellate Authority of the Bank should decide to reinstate you, the same shall not entitle you to receive anything by way of back wages or arrears of salary. Pursuant to the said order, the Appellate Authority had modified the order of dismissal passed earlier and had imposed a fresh punishment by way of reduction of your Basic pay by 5 (Five) stages lower in your time scale of pay for a period of five years and during such period of reduction, you will not earn any increment and on expiry of such period and the said reduction will have the effect of postponing future Increments. In the said backdrop, the question of granting notional increments upon your reinstatement through substituted punishment imposed, does not arise; inasmuch as your claim for notional increment cannot flow as a natural corollary to your reinstatement in the given fact and circumstances of the case." 8. Immediately thereafter, the petitioner by his representation dated January 4, 2010 addressed to the General Manager (Resource Management) prayed for restoration of basic pension. The 3rd and 4th paragraphs of the response of the Chief Manager (D & IR) dated February 1, 2010, read as follows : "It is further clarified that Continuity of Service and Qualifying Service for Pension have different connotation in their applicability and effects. The rate of pension is dependent on the length of qualifying service and the computation of qualifying service is done as defined in the UBI Employees Pension Regulation, 1995. In regard to consideration of the cases of reinstated employees at the instance of Order of Court for the purpose of computing qualifying service for pension, the Ministry of Finance, Govt. of India, Department of Economic Affairs, Banking Division, (vide their communication dated 19.02.2002) had clarified to all Public Sector Banks, that in case an employee has not got the benefit of full wages, the period of absence will not be considered as qualifying service for pension. A copy of the said letter dated 19.02.2002 along with the extract of Chapter IV of the Pension Regulation, 1995, are enclosed for your perusal and reference. In view of the above, since admittedly you were not paid any wages for the period from 14.02.1986 - 24.05.2013, your prayer for consideration of the said period for the purpose of qualifying pension, being untenable under the provision of Pension Regulations, cannot be acceded to." 9. Feeling aggrieved by the responses of the Bank referred to above, this writ petition dated July 2, 2010 was presented before this Court by the petitioner seeking, inter alia, the following relief : "a. Writ of or in the nature of mandamus commanding the respondents to do their statutory duties in accordance with the law and to make proper fixation of the pay of the petitioner after granting him the notional increments from 21st March 1993 till 24th May 2003 and thereafter calculating his pension on the basis of the pay last drawn by him, forthwith. b. Further writ of mandamus commanding the respondents to give the petitioner full pensionary benefits on the basis of his having been in continuous service of the Bank from the date of his appointment in 1971 till the date of his retirement in 2009. c. A further writ of mandamus commanding the respondents to pay the petitioner, on the portion of the salary not paid till date and which will be arrived at after proper fixation of his pay and allowances, interest at the rate of 9% per annum. d. A writ of or in the nature of certiorari quashing the impugned orders of the respondent no. 3 by which the punishment of the petitioner was made prospective from 24th May 2003 as also the order by which the petitioner has been denied his pensionary benefits." 10. The affidavit-in-opposition of the Bank dated December 2, 2010 reveals its stand that the petitioner is not entitled to notional increment upon his reinstatement; that the petitioner is not entitled to any pay and allowances from March 21, 1988 till May 24, 2003 (the date of resumption of duty); that the petitioner is not entitled to have his whole period of service in the respondent bank from 1971 till 2009 reckoned for the purpose of computation of the period of qualifying service under the pension rules because he was not in continuous service and had not earned any wages for the period between February 14, 1986 and May 24, 2003; that the said period does not and cannot come under the purview of the term "qualifying service for pension"; that "continuity of service" and "qualifying service for pension" are two different concepts and the petitioner has attempted to confuse the issue; that in view of communication dated February 19, 2002 of the Ministry of Finance, Government of India, an employee who has not been awarded the benefit of full back wages shall not be entitled to have the period of absence counted as "qualifying service for pension"; and that the plea of the petitioner is untenable under the provisions of the United Bank of India Employees Pension Regulations, 1995 (hereafter the Regulations). 11. Mr. Sanyal, learned advocate for the petitioner and Mr. Majumder, learned advocate for the Bank have advanced arguments based on the rival claims raised in the writ petition and the affidavit-in-opposition respectively. 12. 11. Mr. Sanyal, learned advocate for the petitioner and Mr. Majumder, learned advocate for the Bank have advanced arguments based on the rival claims raised in the writ petition and the affidavit-in-opposition respectively. 12. Three questions arise for decision on this writ petition, viz. (i) whether the petitioner was entitled to notional increments with effect from March 21, 1993 i.e. the period upto which the order of reduction of basic pay by five stages passed by the appellate authority was operative; (ii) whether the petitioner is entitled to pension in terms of the extant rules/regulations; and (iii) to what relief, if any, the petitioner is entitled. 13. Issue No. (i) - It is true that the Hon'ble Division Bench while setting aside the order of dismissal and directing the appellate authority to pass a fresh order, observed that the petitioner shall not be entitled to get anything by way of back wages or arrears of salary from the date of the order of dismissal (February 14, 1986) till his reinstatement in service (which ultimately was on May 24, 2003). The stand of the Bank that the petitioner has either misunderstood the order of the appellate authority dated May 12, 2003 or has deliberately misinterpreted it, does not stand to reason. I hold that it is the Bank that has either misunderstood the order of the appellate authority or has deliberately misinterpreted it to suit its convenience. The Chief Manager (D & IR) while declining to accept the prayer of the petitioner clearly overlooked the fact that the order of reduction in basic pay was to remain operative for five years. The appellate order never intended to deprive the petitioner of the notional increments upon his reinstatement in service (May 24, 2003) with effect from March 21, 1993, since the reduction of basic pay was to operate only for a period of five years with effect from March 21, 1988 and it was only during such period of five years that the petitioner was disentitled to any increment. It is clear from the appellate order of punishment that by reason of the reduction of basic pay by five stages and disentitlement to any increment of pay for the period of five years, being the period of reduction, the increments that the petitioner would have been entitled to till May 21, 1993 stood forfeited. It is clear from the appellate order of punishment that by reason of the reduction of basic pay by five stages and disentitlement to any increment of pay for the period of five years, being the period of reduction, the increments that the petitioner would have been entitled to till May 21, 1993 stood forfeited. The petitioner was, however, entitled to notional increments after the penalty of reduction in pay ceased to be operative and if such notional increments had been given, he would have been fitted at a higher stage of the revised scale of pay, instead of the corresponding stage in the revised scale of pay in vogue at the time of his resumption of duty. The stand taken by the Bank could be justified if the appellate authority had directed reduction of the petitioners basic pay for a period of fifteen years instead of five years or had directed forfeiture of increments, even after the five year period, instead of postponing the same. Once the punishment worked itself out after five years from March 21, 1988, the petitioner was entitled in law to receive the notional incremental benefits for the purpose of proper fixation of pay on resumption of duty, treating him to be entitled to such notional benefits. In view of non-raising of any dispute by the petitioner, I hold that his basic pay as on March 21, 1988 was correctly reckoned as Rs. 2,460/-, reduced from Rs. 3,060/-, as a consequence of the punishment imposed by the appellate authority. In view of the appellate order, he would not be entitled to any increments during the period of five years from March 21, 1988. The increments which were due to the petitioner annually from 1994 onwards, after expiry of the period of five years during which the appellate order was operative, ought to have been considered while fixing his pay at the time of his resumption of duty. Fitment treating Rs. 6, 210/- as basic pay in the pre-revised scale of pay (without the increments being taken into consideration) and Rs. 13,820/- in the corresponding stage in the revised scale of pay in vogue, was not a proper exercise in the circumstances. 14. Issue No. (ii) - Payments of pension to the employees of the bank are regulated by the Regulations. 6, 210/- as basic pay in the pre-revised scale of pay (without the increments being taken into consideration) and Rs. 13,820/- in the corresponding stage in the revised scale of pay in vogue, was not a proper exercise in the circumstances. 14. Issue No. (ii) - Payments of pension to the employees of the bank are regulated by the Regulations. Qualifying service has been defined in Regulation 14 while forfeiture of service has been provided for in Regulation 22 under Chapter IV of the Regulations titled Qualifying Service. Regulations 14 and 22 are quoted below : "14. Qualifying Service - Subject to the other conditions contained in these regulations, an employee who has rendered a minimum of ten years of service in the Bank on the date of his retirement or the date on which he is deemed to have retired shall qualify for pension. 22. Forfeiture of service - (1) Resignation or dismissal or removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and consequently shall not qualify for pensionary benefits; (2) An interruption in the service of a Bank employee entails forfeiture of his past service, except in the following cases, namely:- (a) authorised leave of absence; (b) suspension, where it is immediately followed by reinstatement, whether in the same or a different post, or where the bank employee dies or is permitted to retire or is retired on attaining the age of compulsory retirement while under suspension; (c) transfer to non-qualifying service in an establishment under the control of the Government or Bank if such transfer has been ordered by a competent authority in the public interest. (d) Joining time while on transfer from one post to another. (3) Notwithstanding anything contained in sub-regulation (2), the appointing authority may, by order, commute retrospectively the periods of absence without leave as extraordinary leave. (4)(a) In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered by a bank employee shall be treated as automatically condoned and the pre-interruption service treated as qualifying service; (b) Nothing in clause (a) shall apply to interruption caused by resignation, dismissal or removal from service or for participation in a strike. Provided that before making an entry in the service record of the Bank employee regarding forfeiture of past service because of his participation in strike, an opportunity of representation may be given to such bank employees." 15. The circular letter issued by the Ministry of Finance dated February 19, 2002 on the subject of eligibility for pension reads as follows : "I am directed to refer to this office letter No. 4/8/6/97-IR dated 28.4.1999 indicating that the requests received by the banks for option for pension received after the due date may be referred to the Government. The matter has not been re-examined and it has been decided that the banks may take a decision with the approval of their Board only in those cases where the officer/employee could not exercise option because he stood either dismissed or compulsory retired as on 29.9.1995 but later on got reinstated either due to decision of the court or appellate authority. In case, the incumbent has got full wages for the period of absence due to dismissal, such period will be counted as qualifying service for pension. In case the incumbent has not got the benefit of full wages, the period of absence will not be considered as qualifying service for pension. All other requests received by the Bank for different reasons should not be accepted under any circumstances." 16. Mr. Majumder has heavily relied on sub-regulations (1) and (2) of Regulation 22 as well as the circular letter issued by the Ministry of Finance dated February 19, 2002. 17. The General Manager (Personnel) of the Bank in his "FOREWORD" to the Regulations has written as follows : "For introduction of Pension Scheme in the Bank United Bank of India (Employees) Pension Regulations, 1995 have been finally adopted by the Board of Directors of the Bank with prior approval of Government of India and Reserve Bank of India under Section 19(1) of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. Necessary notification has also been issued in Govt. of India Gazette on 29.9.95. The present Regulations supersede all our circulars and instructions issued earlier in this regard. Administration of Pension Scheme in the Bank will be governed by these Regulations subject to modification/clarification issued by Govt. of India/Reserve Bank of India/Indian Banks Association from time to time." 18. Necessary notification has also been issued in Govt. of India Gazette on 29.9.95. The present Regulations supersede all our circulars and instructions issued earlier in this regard. Administration of Pension Scheme in the Bank will be governed by these Regulations subject to modification/clarification issued by Govt. of India/Reserve Bank of India/Indian Banks Association from time to time." 18. The Regulations are statutory regulations and, therefore, any modification or amendment thereof is required to be effected by the Bank itself with the prior approval of the Union of India and the Reserve Bank of India. I have not been shown any provision in the Regulations that the Government of India reserved the right to make any modification or amendment thereof by executive order. Regulations 55 and 56 of the Regulations laid down as follows: "55. Power to issue instructions - The Chairman and Managing Director of the Bank may from time to time issue instructions as may be considered necessary or expedient for the implementation of these regulations. 56. Residuary provisions - In case of doubt, in the matter of application of these regulations, regard may be had to the corresponding provisions of Central Civil Services Rules, 1972 or Central Civil Services (Commutation of Pension) Rules, 1981 applicable for Central Government employees with such exceptions and modifications as the Bank, with the previous sanction of the Central Government, may from time to time determine." 19. In my considered view, the circular letter of the Ministry of Finance dated February 19, 2002, cannot be called in aid by the Bank to deprive the petitioner of continuous service from 1971 for the purpose of "qualifying service" for pension. In terms of Regulation 22, forfeiture of qualifying service would arise only in case of resignation or dismissal or removal or termination of an employee from the service of the Bank. Having regard to the order of the Hon'ble Division Bench dated January 21, 2003, read with the appellate order dated May 21, 2003, the petitioners dismissal from service of the Bank stood wiped out. It is true that in terms of sub-regulation (2) of Regulation 22, an interruption in the service of a bank employee would entail forfeiture of his past service but there has to be a specific indication to that effect in the service record in terms of sub-regulation (4) clause (a) of Regulation 22. It is true that in terms of sub-regulation (2) of Regulation 22, an interruption in the service of a bank employee would entail forfeiture of his past service but there has to be a specific indication to that effect in the service record in terms of sub-regulation (4) clause (a) of Regulation 22. In the absence of a specific indication to the contrary in the service record, an interruption between two spells of service rendered by a Bank employee shall be treated as automatically condoned and the pre-interruption service treated as qualifying service. Clause (b) does not apply since the Chief Manager (D & IR) in his response dated May 25, 2009 clearly observed that there was no specific order for discontinuation of service during the period February 14, 1986 to May 23, 2003 and that the said period would be counted as service. No order for discontinuation having been passed, there has been no forfeiture of past service and the petitioner is justified in his grievance. 20. Issue No. (iii) - The respondents deprived the petitioner of his legitimate claim by orders which are not legal. Justice has been denied to him at the administrative level, which compelled him to approach the Court a second time. For allegations of indiscretion and error of judgment which did not amount to gross misconduct, he was dismissed from service and continued as a dismissed employee for long seventeen years. He was reinstated in service without back wages or arrear salary as directed by the Hon'ble Division Bench; however, notional increments to which he was entitled were not taken into consideration and the same were denied despite no embargo in this behalf having been imposed by the appellate authority. He has also been denied pension based on erroneous interpretation of the Regulations. 21. I am of the view that the petitioner is entitled to orders in terms of prayers (a) to (d) extracted supra. Appropriate writs of mandamus and certiorari are issued, as prayed for by the petitioner. The Bank is granted 3 months time to compute the financial benefits and to release the same in favour of the petitioner. 22. The writ petition stands allowed. The petitioner shall be entitled to costs assessed at Rs. 10,000/-, to be paid to him alongwith the financial benefits in terms of this order. Writ Petition allowed.