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2019 DIGILAW 1048 (HP)

Ved Prakash Gupta v. State Bank of Patiala

2019-07-26

JYOTSNA REWAL DUA

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JUDGMENT : Jyotsna Rewal Dua, J. This writ petition has been filed, praying for following reliefs :- "(i) That writ in the nature of certiorari may kindly be issued, whereby quashing and setting aside Annexure P-3 with the directions to issue suitable relieving letter in the favour of the petitioner. (ii) That the impugned Inquiry report dated 29.02.2016, Annexure P-6, order dated 21.05.2016 Annexure P-7, order dated 28.11.2016, Annexure PO-8 and order dated 31.03.2017, Annexure P-11 may kindly be quashed and set aside by issuing writ in the nature of certiorari. (iii) That the respondents may kindly be directed to pay the interest @ 12% per annum on the retiral benefits i.e. gratuity and pension commutation of the petitioner w.e.f. 01.06.2015 to 01.06.2016 as the same were paid to him after one year. 2. The factual position of the case:- 2(i) On 1.12.2010, the petitioner was promoted as Chief Manager in the respondent Bank. In March, 2015, certain explanations were called from the petitioner regarding his work, while issuing loans in favour of the customers of the respondent Bank. All these explanations, primarily pertained to non compliance by petitioner to the prescribed procedure while sanctioning the loans. 2(ii) Vide Annexure P-3, issued on 28.5.2015, the competent authority of the respondent Bank decided to retire the petitioner from the bank services w.e.f. 31.05.2015, under Regulation 19(2) of State Bank of Patiala Officers Service Regulations, 1979 (hereinafter to be referred as 'SBOP officers Service Regulations' for short). 31.05.2015, was otherwise normal superannuation date of the writ petitioner. 2(iii) Petitioner retired on 31.5.2015, which was his normal date of superannuation. However, in view of Annexure P-3 no separate retirement certificate/notification/letter/ relieving letter etc., was issued to him. 2(iv) Disciplinary proceedings were initiated against the petitioner subsequent to his superannuation on 31.5.2015. Charge-sheet was issued against the petitioner on 26.10.2015, vide Annexure P-4. The reply (Annexure P-5) filed by the petitioner to this charge-sheet on 09.11.2015, was not considered satisfactory by the competent authority. Inquiry on this charge-sheet was started against the petitioner. The inquiry officer was appointed on 04.12.2015. The inquiry report was submitted on 29.02.2016, vide Annexure P-6, wherein all the charges levelled against the writ petitioner were held as proved. The copy of the inquiry report was sent to the petitioner. Inquiry on this charge-sheet was started against the petitioner. The inquiry officer was appointed on 04.12.2015. The inquiry report was submitted on 29.02.2016, vide Annexure P-6, wherein all the charges levelled against the writ petitioner were held as proved. The copy of the inquiry report was sent to the petitioner. After considering his representation, the Appointing Authority, vide Annexure P-7 dated 21.05.2016, imposed penalty of reduction of pay by three stages with effect from date of superannuation of the petitioner i.e. 31.05.2015, thereby also affecting his pension. The order was passed in terms of Regulation 67(f) of SBOP (Officers') Service Regulations, 1979. Thus, in terms of this penalty order, basic pay of petitioner was to reduce from Rs.59,170/- p.m. to Rs.54,410/- p.m. in turn affecting his pension. 2(v). Feeling aggrieved against imposition of above penalty (major penalty under Regulation No. 67 of SBOP Regulations), petitioner preferred an appeal before the Appellate Authority, under Regulation 70(1). The Appellate Authority, after examining the case of the petitioner and after hearing him in person on 29.09.2016, modified the penalty orders vide order dated 28.11.2016 (Annexure P-8). The Appellate Authority modified the penalty and reduced it to 'Censure'. 2(vi) Censure, though a minor penalty under Regulation 67(a) of SBOP (Officers') Services Regulations, 1979, yet the petitioner for want of actual relieving/retirement letter, was not in a position to seek employment, elsewhere, hence, approached the Reviewing Authority on 22.12.2016. The Reviewing Authority enhanced the punishment. In addition to the earlier imposed penalty of 'censure', a financial punishment in form of cash penalty of Rs.50,000/- was also imposed upon the petitioner, vide order dated 31.3.2017 (Annexure P-11). 3. 3(I). Feeling aggrieved, the petitioner has challenged the inquiry report and the punishment orders as imposed upon him, in terms of Annexures P-6, P-7, P-8 and P-11 and has also prayed for issuing him a suitable relieving letter. Annexure P-3, whereby petitioner was retired under Regulation 19(2) has also been challenged. 3(ii) The stand taken by the respondent Bank in its reply is that disciplinary proceedings have been conducted in accordance with SBOP (Officers') Services Regulations, 1979. Charges against the petitioner were proved in the Inquiry report. Accordingly, the penalty was imposed upon him. The penalty was imposed upon the petitioner after giving him opportunities of hearing on 27.04.2016 and 21.5.2016. 3(ii) The stand taken by the respondent Bank in its reply is that disciplinary proceedings have been conducted in accordance with SBOP (Officers') Services Regulations, 1979. Charges against the petitioner were proved in the Inquiry report. Accordingly, the penalty was imposed upon him. The penalty was imposed upon the petitioner after giving him opportunities of hearing on 27.04.2016 and 21.5.2016. It is asserted that the action taken against the petitioner by the respondent-Bank is in accordance with its rules and regulations, entailing no interference in exercise of the writ jurisdiction. 4. I have heard learned counsel for the parties and gone through the record. 5. Retirement of the petitioner/initiation of the disciplinary proceedings: 5(i) It's not in dispute that petitioner's normal date of superannuation was 31.5.2015. 5(ii) It is borne out from the record that no disciplinary proceedings were initiated against the petitioner before his date of superannuation i.e. 31.5.2015. 5(iii) The disciplinary proceedings were actually initiated against the petitioner on 26.10.2015, when the charge-sheet was issued to him. It would be apt to quote the judgment passed in titled Bhajan Singh Vs. State of Uttarakhand and others, (2013) 14 SCC 32 it was held as under:- ----------------------- "The officer has sought to contend that these chargesheets do not mention that they have been issued under any disciplinary proceedings. By stating so he has betrayed his ignorance of the legal position that the disciplinary proceedings begin with the issuance of the charge-sheet." -------------------------- 5(iv) Annexure P-3, whereunder, respondent-Bank had purportedly retired the petitioner on 31.5.2015, in exercise of Regulation 19(2) of SBOP Officers' Service Regulations, 1979, is wholly unjustified. By stating so he has betrayed his ignorance of the legal position that the disciplinary proceedings begin with the issuance of the charge-sheet." -------------------------- 5(iv) Annexure P-3, whereunder, respondent-Bank had purportedly retired the petitioner on 31.5.2015, in exercise of Regulation 19(2) of SBOP Officers' Service Regulations, 1979, is wholly unjustified. Regulation 19(2) being relevant is reproduced hereinafter "In case disciplinary proceedings under the relevant regulations of service have been initiated against an officer before he ceases to be in the Bank's service by the operation of, or by virtue of, any of the said regulations or the provisions of these regulations, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said regulations as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings." A bare perusal of above regulation makes it evident that an employee of the bank can be retired under this regulation only in case disciplinary proceedings had been initiated against him, before his date of retirement. It would be apt in this regard to refer to the judgment passed in, titled Dev Prakash Tewari Vs. Uttar Pradesh Cooperative Institutional Service Board, Lucknow and others, (2014) 7 SCC 260 wherein it was held as under:- "8. Once the appellant had retired from service on 31.3.2009, there was no authority vested with the respondents for continuing the disciplinary proceeding even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such an authority it must be held that the enquiry had lapsed and the appellant was entitled to get full retiral benefits. 9. The question has also been raised in the appeal with regard to arrears of salary and allowances payable to the appellant during the period of his dismissal and upto the date of reinstatement. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him. 10. Inasmuch as the inquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him. 10. The appeals are, therefore, allowed and the judgment and order of the High Court are set aside and the respondents are directed to pay arrears of salary and allowances payable to the appellant and also to pay him his all the retiral benefits in accordance with the rules and regulations as if there had been no disciplinary proceeding or order passed therein. No costs". In another judgment of Hon'ble Apex Court in titled Bhagirath Jena Vs. Board of Directors, O.S.F.C. and others, (1999) 3 SCC 666 it was held as under:- "6. It will be noticed from the abovesaid regulations that no specific provision was made for deducting any amount from the provident fund consequent to any misconduct determined in the departmental enquiry nor was any provision made for continuance of departmental enquiry after superannuation. 7. In view of the absence of such provision in the abovesaid regulations, it must be held that the Corporation had no legal authority to make any reduction in the retiral benefits of the appellant. There is also no provision for conducting a disciplinary enquiry after retirement of the appellant and nor any provision stating that in case misconduct is established, a deduction could be made from retiral benefits. Once the appellant had retired from service on 30.6.95. there was no authority vested in the Corporation or continuing the departmental enquiry even for the purpose of imposing any reduction in the retiral benefits payable to the appellant. In the absence of such authority, it must be held that the enquiry had lapsed and the appellant was entitled to full retiral benefits on retirement. 8. Learned senior counsel for the respondent placed reliance on the judgment of this Court in Takhatray Shivadattray Mankad v. State of Gujarat, (1989) Supp2 SCC 110. It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. It is true that that was a case of imposing a reduction in the pension and gratuity on account of unsatisfactory service of the employee as determined in an enquiry which was extended beyond the date of superannuation. But the above decision cannot help the respondent inasmuch as in that case there was a specific rule namely Rule 241-A of the Junagadh State Pension and Parwashi Allowance Rules, 1932 which enabled the imposition of a reduction in the pension or gratuity of a person after retirement. Further, there were rules in that case which enabled the continuance of departmental enquiry even after superannuation for the purpose of finding out whether any misconduct was established which could be taken into account for the purpose of Rule 241-A. In the absence of a similar provision with Regulations of the respondent Corporation, the above judgment of Mankad case cannot help the respondent. 9. The question has also been raised in the appeal in regard to the payment of arrears of salary and other allowances payable to the appellant during the period he was kept under suspension and upto the date of superannuation. Inasmuch as the enquiry had lapsed, it is, in our opinion, obvious that the appellant would have to get the balance of the emoluments payable to him after deducting the suspension allowance that was paid to him during the abovesaid period. 10. The appeal is therefore allowed directing the respondent to pay arrears of salary and allowances payable to him during the period of suspension upto the date of superannuation after deducting the suspension allowance paid to him for the said period and also to pay the appellant, all the retrial benefits otherwise payable to him in accordance with the rules and regulations applicable, as if there had been no disciplinary enquiry or order passed there in." 5(v). Action under Regulation 19(2) of SBOP Officers' Service Regulations, 1979, could have been taken only in case disciplinary proceedings had been initiated against the petitioner before his retirement. In the present case, the date of retirement of the petitioner was 31.05.2015 and disciplinary proceedings were initiated against him after his normal date of retirement by issuing charge-sheet to him on 26.10.2015. Therefore, the issuance of Annexure P-3, in purported exercise of Regulation 19(2), SBOP (Officers) Service Regulations, 1979, is not valid. This would in turn render all subsequent proceedings invalid. Therefore, the issuance of Annexure P-3, in purported exercise of Regulation 19(2), SBOP (Officers) Service Regulations, 1979, is not valid. This would in turn render all subsequent proceedings invalid. Thus, entire disciplinary proceedings, inclusive of charge-sheet, inquiry conducted and the penalties orders imposed upon the petitioner are illegal and non est and are quashed as such. 6. Validity of Punishment orders: Independent of above aspect, on merits also, the case of petitioner is being examined hereinafter:- 6(i) The inquiry report, (Annexure P-6) dated 29.2.2016, proved all charges against the petitioner. The Appointing Authority on the basis of inquiry report, imposed a major penalty of reduction of pay by three stages with effect from date of superannuation of petitioner thereby specifically affecting his pension. 6(ii) In appeal preferred by the petitioner, the Appellate Authority reduced the 'major penalty' imposed by the Appointing Authority to 'minor penalty' of censure. 6(iii) Petitioner since had not been granted the benefit of having a suitable retirement/relieving order, approached for review of even this penalty of 'censure'. The Reviewing Authority vide order dated 31.03.2017, though did not reduce the punishment of censure imposed upon the petitioner by the Appellate Authority, but, further imposed financial punishment by imposing a cash penalty of Rs.50,000/- upon him. 6(iv) Regulation 70 of SBOP (Officers) Service Regulations, 1979, gives the power to review the punishment, to the Reviewing Authority. It would be in place to reproduce relevant part of Regulation 70, hereinafter:- 70(3) "Notwithstanding anything contained in this Section, the Reviewing Authority may call for the record of the case within six months of the date of the final order and, after reviewing the case, pass such orders thereon as it may deem fit. Provided that: (i) If the enhanced penalty, which the Reviewing Authority proposes to impose, is a major penalty specified in Clauses (f), (g), (h), (I) and (j) of regulation 67 and an enquiry as provided under sub-regulation (2) of regulation 68 has not already been held in the case, the Reviewing Authority shall direct that such an enquiry be held in accordance with the provisions of sub regulation (2) of regulation 68 and thereafter consider the record of the enquiry and pass such orders as it may deem proper. (ii) If the Reviewing Authority decides to enhance the punishment but an inquiry has already been held in accordance with sub-regulation (2) of regulation 68, the Reviewing Authority shall give show cause notice to the officer as to why the enhanced penalty should not be imposed upon him and shall pass final order after taking into account the representation, if any, submitted by the officer." The regulation clearly stipulated issuance of show cause notice to the officer before enhancing the penalty. It is not the case of the respondent that any show cause notice was issued to the petitioner, before enhancing penalty by the Reviewing Authority. Even the reply filed by the respondent Bank, gives only two dates viz. 27.04.2016 and 21.5.2016 given to the petitioner for personal hearing by the Appellate Authority, but not by the Reviewing Authority. Thus, the punishment imposed upon the petitioner vide Annexure P-11, dated 31.03.2017, cannot be held to be in accordance with Regulation 70 of SBOP Officers Service Regulations 1979. 6(v) Thus even if Annexure P-3, is treated to be valid then also, penalty imposed upon petitioner in terms of Annexure P-11 dated 31.3.2017 has to be held illegal. In this way, the only penalty, which would remain is that of 'Censure' passed by the Appellate Authority vide Annexure P-8 dated 28.11.2016, which cannot bar issuance of retirement/relieving letter to the petitioner or curtail his salary, pension etc. 7. In view of above, the writ petition is allowed and the impugned orders dated 28.05.2015, 29.02.2016, 21.5.2016, 28.11.2018 and 31.3.2017 are quashed and set aside with all consequential benefits. Respondents are also directed to issue proper relieving letter/retirement letter to the petitioner. The present petition is disposed of, so also the pending application, if any.