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2020 DIGILAW 468 (CAL)

Swapan Kumar Saha v. Bangiya Gramin Vikash Bank

2020-05-13

AMRITA SINHA

body2020
JUDGMENT Amrita Sinha, J. - The petitioner was a Scale -II officer (Branch Manager) of the Bangiya Gramin Vikash Bank (BGVB for short). He is aggrieved by the penalty imposed upon him by the disciplinary authority vide order dated 5th May, 2016 removing him from service and for non payment of his retiral dues. 2. By a notice dated 6th April, 2010 the petitioner was directed to show cause why disciplinary action would not be initiated against him for violation of the Service Regulations. The petitioner failed to reply to the said show cause. A further letter was issued to him on 1st May, 2010 but the petitioner did not comply with the same. A reminder dated 14th July, 2010 was issued which was also not responded to by the petitioner. 3. The Bank concluded that the petitioner did not have any defence and a charge sheet was issued to him on 26th October, 2010 by the Chairman of the Bank directing him to reply to the allegations made therein within a period of ten days. The allegation was that in July, 2008 the petitioner borrowed a sum of Rs. 4,33,000/- in the capacity of Branch Manager from a borrower of that branch and assured him to return the said money within a month. In spite of repeated persuasions, he failed to repay the borrowed amount. 4. It was further alleged that on 12th January, 2010 he used the official pad, signature and official seal by abusing his official capacity and gave an unauthorised guarantee for his personal gain. According to BGVB the same amounted to gross misconduct. 5. Due to the misdeeds of the petitioner the Bank suffered a decree from the Consumer Disputes Redressal Forum, Naida in a proceeding filed by one of the customers of BGVB and the petitioner was directed to make good the loss of Rs. 1,08,000/- (one lac eight thousand only) that was suffered by the Bank. 6. By a letter dated 26th August, 2011 the prayer of the petitioner to refund the aforesaid sum of Rs. 1,08,000/- only in six equal monthly instalments, each of Rs. 18,000/- only was allowed by the Senior Manager of the Bank. The aforesaid amount of Rs. 18,000/- only was deducted from the salary of the petitioner on and from September, 2011. 7. 1,08,000/- only in six equal monthly instalments, each of Rs. 18,000/- only was allowed by the Senior Manager of the Bank. The aforesaid amount of Rs. 18,000/- only was deducted from the salary of the petitioner on and from September, 2011. 7. Thereafter, several irregularities of the petitioner were detected and a fresh charge sheet was issued to the petitioner on 8th September, 2011. The petitioner was directed to reply within ten days. Not being satisfied with the reply forwarded by the petitioner a departmental proceeding was initiated against him. A Presenting Officer and an Inquiry Officer was engaged. 8. The petitioner was granted the opportunity to avail the assistance of a defence representative. Though the petitioner proposed the name of his defence representative but neither he nor his defence representative participated in the enquiry proceeding. An enquiry report was submitted by the Inquiry Officer holding the petitioner guilty. The enquiry proceeding and the enquiry report was duly forwarded to the petitioner for submission of his reply. The petitioner objected to the said enquiry report as the same was forwarded to him by the General Manager in the capacity of the disciplinary authority. 9. According to the petitioner on 3rd May, 2013 the General Manager was not competent to act as the disciplinary authority in case of the petitioner. As per law, on 3rd May, 2013 the Chairman was the competent disciplinary authority. The General Manager being junior to the Chairman was not empowered to act as the disciplinary authority. The petitioner raised an objection that as the General Manager was an officer subordinate to his appointing authority accordingly he was not entitled to act as his disciplinary authority. The petitioner prayed for exoneration from the charges levelled against him. 10. The petitioner retired from service on attaining his normal age of superannuation on 28th February, 2015. On his retirement pension has been paid to him, but his other retiral dues have been withheld. 11. The petitioner challenged the issuance of charge sheet by filing a writ petition before this court being WP - 21089 (W) of 2011 which was dismissed by an order dated 29th January, 2016. The petitioner was directed to pay costs assessed at Rs. 1,00,000/- (One lac only) which the Bank was directed to withhold from any amount that may be due to the petitioner on any account whatsoever. The petitioner was directed to pay costs assessed at Rs. 1,00,000/- (One lac only) which the Bank was directed to withhold from any amount that may be due to the petitioner on any account whatsoever. By an order dated 28th April, 2016 passed in AST 19 of 2016 the Hon'ble Appeal Court dismissed the appeal preferred by the petitioner but reduced the costs to Rs. 25,000/- (twenty five thousand only). 12. The disciplinary authority by an order dated 5th May, 2016 imposed the penalty of removal from service. The costs of Rs. 25,000/- was directed to be realised from the Bank's contribution towards his provident fund account. The petitioner is aggrieved by the same. 13. According to the petitioner there has been violation of the principle of natural justice at each and every stage. In terms of the BGVB Service Regulations, 2010 prevailing on 3rd May, 2013 the Chairman of the Bank was the disciplinary authority but the General Manager usurped the power of the disciplinary authority and proceeded against the petitioner. The action of the General Manager was beyond his jurisdiction and authority. 14. The petitioner contends that had the matter been considered by the Chairman he may have been exonerated from the charges or direction could have been issued for de novo proceeding on consideration of the petitioner's representation. It has been submitted that the Service Regulations, 2010 stood amended only when the amended regulations were published in the official gazette on 20th November, 2013. Prior to publication of the notification in the official gazette, the petitioner raised objection before the disciplinary authority by a letter dated 15th May, 2013 but the same was not considered. The Bank failed to give any reply to his letter for which the petitioner's valuable statutory right to prefer appeal against the order of penalty was taken away. 15. The petitioner argues that the Chairman issued the charge sheet framing charges against him and accordingly he cannot act as an appellate authority since he has already made up his mind to initiate proceeding against him. As the Chairman of the Bank initiated the disciplinary proceeding accordingly he ought not to act as an appellate authority. 16. 15. The petitioner argues that the Chairman issued the charge sheet framing charges against him and accordingly he cannot act as an appellate authority since he has already made up his mind to initiate proceeding against him. As the Chairman of the Bank initiated the disciplinary proceeding accordingly he ought not to act as an appellate authority. 16. The petitioner argues that there is inherent lack of jurisdiction of the General Manager to continue and conclude the disciplinary proceeding initiated against him by the Chairman of the Bank and the said inherent lack of jurisdiction cannot be cured by consent of the parties. The court cannot also vest jurisdiction upon an authority not otherwise empowered by a statute. No authority can be a judge of his own cause. 17. The right of the petitioner to file a statutory appeal was lost as the Chairman being the initiating authority of the disciplinary proceeding has, due to the amended provision, came to be termed as the appellate authority of the Scale-I and Scale-II officers of the Bank. 18. The petitioner further contends that as he retired from service during the pendency of the disciplinary proceeding no order of dismissal or removal can be passed against him. Gratuity can be withheld by the Bank only to the extent of the loss suffered by the Bank, but not otherwise. In the instant case the Bank has not quantified the amount of financial loss caused to the Bank on account of the petitioner. 19. There is no indication either in the charge sheet or in the report of the inquiry officer or in the final order of punishment with regard to the actual loss caused to the Bank due to the alleged acts of the petitioner. 20. Moral turpitude was neither alleged against the petitioner in the charge sheet nor in the enquiry report. The same is a new ground taken by the disciplinary authority at the time of passing the order of removal. Moral turpitude being a criminal offence the same ought not to be levelled against him. The petitioner relies upon the following judgments in his support. 1) Garware Nylon Ltd. vs- Collector of Custom and Central Excise Duty, (1998) 8 SCC 282 (paragraphs 3 and 4) on the issue that a notification should be given effect to from the date of its publication in the official gazette. The petitioner relies upon the following judgments in his support. 1) Garware Nylon Ltd. vs- Collector of Custom and Central Excise Duty, (1998) 8 SCC 282 (paragraphs 3 and 4) on the issue that a notification should be given effect to from the date of its publication in the official gazette. According to the petitioner as the notification for amendment was published in November, 2013 the amended provision could not have been applied or acted upon in May, 2013, i.e prior to its publication. 2) UCO Bank & Anr. vs- Rajinder Lal Capoor, (2007) AIR SC 2129 (paragraph 23) on the issue that after retirement, order of dismissal/removal or termination from service cannot be issued. 3) Jaswant Singh Gill vs- Bharat Coking Coal & Ors, (2007) 1 SCC 663 (paragraph 10) on the issue that dismissal/removal or termination is not permissible after retirement. As the petitioner retired from service on 28th February, 2015 the order of removal ought not to have been passed in 2016. 4) Anant R. Kulkarni vs- Y. P. Education Society, (2013) 6 SCC 515 (paragraph 24) on the same issue as decided in Jaswant Singh Gill (supra). 5) Punjab National Bank & Ors. vs- Kunj Behari Misra, (1998) AIR SC 2713 (paragraph 21) on the issue that when the incumbent has already retired from service the matter ought not to be remanded back for de novo proceeding. 6) Union Bank of India & Ors. vs- C. G. Ajay Babu, (2018) 9 SCC 529 on the issue that withholding of gratuity is not automatic on issuance of order of dismissal/removal or termination from service. 7) Ajmer Singh -vs- State of Haryana & Ors, (1992) LABIC 1828 (paragraph 8) on the issue that once the proceedings are initiated under a particular set of rules, it is incumbent upon the authority to conclude those proceedings under those rules. 21. The petitioner prays for quashing the findings of the inquiry officer, setting aside the order of punishment and to drop the disciplinary proceeding initiated against him. He also prays for releasing his retiral dues of provident fund, gratuity and leave salary. 22. Per contra, the learned advocate appearing for the Bank submits that the service conditions of the Officers and Employees of BGVB were governed by the Service Regulations, 2007 which came into force on 17th November, 2007. The said service regulations were amended from time to time. 22. Per contra, the learned advocate appearing for the Bank submits that the service conditions of the Officers and Employees of BGVB were governed by the Service Regulations, 2007 which came into force on 17th November, 2007. The said service regulations were amended from time to time. At the time of initiation of the disciplinary proceeding in 2011 the Service Regulations, 2010 was existing. The aforesaid regulations stood amended by way of a notification published in the official gazette on 20th November, 2013. 23. The petitioner being a Scale -II officer was found to be grossly negligent in his service for which the Bank suffered loss of Rs. 1,08,000/- approximately. A customer of the Bank approached the District Consumer Disputes Redressal Forum wherein a decree was passed for refund of the aforesaid amount by the Bank to the aggrieved customer. The Bank issued instructions to the petitioner to liquidate the said amount by way of instalments. The petitioner admitted his offence and permitted recovery of the aforesaid amount by deduction from his monthly salary commencing from September, 2011. 24. Another charge sheet was issued to the petitioner on 8th September, 2011 on various acts of misconduct with assessed loss of several lac of rupees. An inquiry officer was appointed to conduct the enquiry. Though permission was granted to the petitioner to take the assistance of a defence representative, neither the petitioner nor his representative participated in the enquiry proceeding. The inquiry officer dealt with the matter ex parte and submitted report on 26th April, 2013. The report was forwarded to the petitioner by the General Manager of the Bank being the substituted disciplinary authority on 3rd May, 2013. 25. The petitioner attained his normal age of superannuation on 28th February, 2015. The final order in the disciplinary proceeding was passed under the pen of the General Manager who was the designated disciplinary authority on 5 th May, 2016. The penalty of removal from service was passed. The petitioner instead of preferring a departmental appeal provided in the service regulation approached this court for relief. 26. The Bank contends that the writ petition is not maintainable in view of the availability of the appellate forum specified in the service regulation of the petitioner. It has been submitted that the petitioner was not remediless and he could have preferred the appeal before the Chairman or before the Board of Directors. 26. The Bank contends that the writ petition is not maintainable in view of the availability of the appellate forum specified in the service regulation of the petitioner. It has been submitted that the petitioner was not remediless and he could have preferred the appeal before the Chairman or before the Board of Directors. The person serving as Chairman who issued the charge sheet, long ceased to be the Chairman and there was no impediment on the part of the petitioner from approaching the present incumbent in accordance with the amended service regulations. The apprehended bias of the petitioner is meaningless as by lapse of time the person who acted as Chairman on the date of initiation of the disciplinary proceeding was no longer serving as Chairman. The petitioner could have very well preferred the appeal before the incumbent serving as Chairman on or after the date of passing the final order. 27. The process of amendment of the service regulations took some time. On 20th December, 2012 the model draft notification relating to amendment of the disciplinary authority was circulated by the Ministry of Finance to the various Regional Rural Banks including the present Bank. A circulatory board note approving the proposed amendment was circulated by the Bank on 10th January, 2013. The Bank intimated the petitioner on 24th May, 2013 about the proposed changes of the disciplinary authority in terms of the amended regulations. The Ministry on 13th June, 2013 approved the proposed amendment and forwarded the same for publication in the official gazette. The Board of Directors of the Bank ratified the amendment through the resolution of 5th August, 2013 and the gazette notification dated 12th August 2013 was published on 20th November, 2013. 28. The petitioner was duly made aware of the changes of the disciplinary authority and the appellate authority so that the petitioner doesn't lose the opportunity to prefer appeal, in the event he was aggrieved by the order passed by the disciplinary authority. The enquiry report was forwarded to the petitioner on 3 rd May, 2013 whereas the final order was passed by the disciplinary authority on 5 th May, 2016. The petitioner had enough time to submit his explanation to the report of the inquiry officer, but the petitioner apart from questioning the jurisdiction of the disciplinary authority did not submit his explanation to the report of the inquiry officer. 29. The petitioner had enough time to submit his explanation to the report of the inquiry officer, but the petitioner apart from questioning the jurisdiction of the disciplinary authority did not submit his explanation to the report of the inquiry officer. 29. The disciplinary authority passed necessary orders on the basis of the documents available on record. As the General Manager was empowered by law to take a decision on consideration of the report of the inquiry officer and the documents on record, accordingly, the General Manager rightly passed the final order which is absolutely legal and valid. On the date of issuing the final order of penalty the Chairman being the erstwhile disciplinary authority was denuded of his power to act as the disciplinary authority, accordingly, the decision was rightly taken by the General Manager. 30. It has been submitted that the law prevailing on the date of making the decision has to be applied while deciding a case. The petitioner has been dealt with in accordance with the amended law and by the authority empowered by the said amendment. 31. Penalty of removal from service can be passed regardless of the fact whether the officer has been superannuated or is in service, as the service regulations of the petitioner permits continuation of the disciplinary proceeding even after retirement. Removal from service being one of the enumerated penalties the same can be imposed upon a delinquent on conclusion of the disciplinary proceeding. 32. As regards withholding of the gratuity, it has been submitted that the same is permissible both as per the service regulations and the Payment of Gratuity Act, 1972. The respondents rely upon the following decisions in their support: 1. Managing Director, ECIL, Hyderabad and Ors. -vs- B. Karunakar and Ors, (1993) 4 SCC 727 paragraph 28 on the issue that forwarding of the enquiry report to the petitioner by the General Manager does not imply that he had applied his mind to the findings of the inquiry officer. Forwarding the enquiry report does not have any adverse effect on the proceeding. 2. Chairman Cum Managing Director, Coal India Ltd. and Others -vsAnanta Saha and Ors, (2011) 5 SCC 142 paragraph 18 on the issue that the law prevailing on the date of the decision making has to be applied. Forwarding the enquiry report does not have any adverse effect on the proceeding. 2. Chairman Cum Managing Director, Coal India Ltd. and Others -vsAnanta Saha and Ors, (2011) 5 SCC 142 paragraph 18 on the issue that the law prevailing on the date of the decision making has to be applied. As the General Manager was the competent authority to act as the disciplinary authority in 2016 the final order was passed by him. 3. Chandigarh Administration through the Director Public Instructions (Colleges) Chandigarh -vs- Usha Kheterpal Waie and Ors, (2011) 9 SCC 645 paragraph 18 on the issue that if there is clear intention to enforce draft Rules in future and the same has been sent for notification, then any action taken on the basis of the draft rules is valid. Here, the draft rules were prepared in December 2012 and the notification dated 12th August, 2013 was published in the official gazette on 20th November, 2013 . In the instant case the enquiry report was merely forwarded by the substituted authority prior to the publication of the amended regulations in the official gazette but the final order was passed by the competent authority in accordance with the law prevailing on the said date. 4. Jaswant Singh Gill -vs- Bharat Coking Coal Ltd, (2007) 1 SCC 663 on the issue that a decision is an authority for what it decides, and not what can be logically deduced therefrom. It is only a ratio which has a binding precedence, and not an obiter. 5. Chairman Cum Managing Director Mahanadi Coalfield Ltd. -vsRabindranath Choubey, (2013) 16 SCC 411 paragraph 21 to highlight the principle that when the Rules treat the retired officer to be in service, although for the limited purpose of continuance of such proceeding, then any of the prescribed penalties including dismissal can be imposed. 6. State Bank of India -vs- Ram Lal Bhaskar and Anr, (2011) 10 SCC 249 wherein the Court upheld the penalty of dismissal of a superannuated Bank employee. 7. Y.K. Singla -vs- Punjab National Bank and Ors, (2013) 3 SCC 472 paragraph 12 on the issue as to whether an employee whose gratuity has been withheld in accordance with the Service Regulation would be entitled to interest if he is found not to be at fault. 33. The respondents pray for dismissal of the writ petition. 34. 7. Y.K. Singla -vs- Punjab National Bank and Ors, (2013) 3 SCC 472 paragraph 12 on the issue as to whether an employee whose gratuity has been withheld in accordance with the Service Regulation would be entitled to interest if he is found not to be at fault. 33. The respondents pray for dismissal of the writ petition. 34. I have heard the submissions made on behalf of both the parties. 35. The petitioner was serving as the Branch Manager of BGVB. He was governed by the BGVB (Officers and Employees) Service Regulations, 2010 which came into effect from 15th November 2010 herein after referred to as the Service Regulations, 2010. 36. According to Regulation 2(g) of the said Regulations 'Competent Authority' is the Chairman, in respect of 'officer'. The petitioner being an officer the competent authority of the petitioner is the Chairman. Regulation 39 specifies the penalties which may be imposed upon an 'officer' or an 'employee'. 37. Regulation 45 (3) mentions that the officer against whom disciplinary proceedings have been initiated shall cease to be in service on the date of superannuation, but the disciplinary proceeding shall continue, as if he was in service, until the proceedings are concluded and final order is passed in respect thereof. 38. Regulation 45 (4) mentions that an officer against whom disciplinary proceedings have been initiated shall not receive any pay and/or allowances after the date of superannuation. He shall also not be entitled for the payment of retirement benefits till the proceeding is completed and final order is passed thereon, except his own contribution to Contributory Provident Fund. 39. The explanation appended to Regulation 45 mentions that the normal retirement benefits such as encashment of privilege leave and gratuity may be withheld till the completion of the disciplinary proceeding and passing of final order by the Competent Authority and the release of benefits shall be as per the final order of the Competent Authority. 40. Regulation 49 provides for the right to appeal before the appellate authority within 45 days from the date of receipt of the order passed by the disciplinary authority. The appellate authority shall decide the appeal preferably within a period of six months from the date of receipt of the appeal. 41. As per Regulation 50 an appeal shall lie before the Board of Directors of the Bank where the Chairman is the competent authority. 42. The appellate authority shall decide the appeal preferably within a period of six months from the date of receipt of the appeal. 41. As per Regulation 50 an appeal shall lie before the Board of Directors of the Bank where the Chairman is the competent authority. 42. Regulation 72 lays down that every officer shall be eligible for gratuity on a) retirement, b) death, c) disablement, or d) resignation after completing 10 years of continuous service, or e) termination of service in any other way, except by way of punishment after completion of 10 years of service; provided that in respect of an employee there shall be no forfeiture of gratuity for dismissal on account of misconduct except in cases where such misconduct causes financial loss caused to the Bank and in that case to that extent only. 43. A charge sheet was issued to the petitioner on 8th September, 2011 by the Chairman and Disciplinary Authority, alleging several irregularities constituting gross misconduct on his part. As many as 14 charges were levelled which allegedly were in contravention of the Service Regulations, 2010. A bare perusal of the charge sheet reveals that the same contained specific, definite charges supported by facts and figures. Direct allegations causing sustained financial loss to the Bank extending to several lac of rupees were made. The final order was passed by the General Manager and Disciplinary Authority in May, 2016. 44. The primary allegation of the petitioner is that the General Manager is not competent to act as his disciplinary authority. The petitioner relies upon Regulation 2 (g) of the Service Regulations, 2010 which specifies that the Chairman is the competent authority in respect of the officers of the Bank. The petitioner being a Scale II officer, the competent authority to decide the issue is none other than the Chairman. The General Manager being subordinate to the Chairman cannot pass any order in defiance of the allegations levelled against him by his superior authority. 45. He argues that as the Chairman had issued the charge sheet in his case, accordingly the Chairman cannot act both as the disciplinary as well as the appellate authority. 46. The General Manager being subordinate to the Chairman cannot pass any order in defiance of the allegations levelled against him by his superior authority. 45. He argues that as the Chairman had issued the charge sheet in his case, accordingly the Chairman cannot act both as the disciplinary as well as the appellate authority. 46. It appears from records that the Board of Directors of the Bank, sometime in December 2012, in exercise of the powers conferred by Section 30 of the Regional Rural Banks Act, 1976 after consultation with the United Bank of India being the sponsor Bank and the National Bank for Agriculture and Rural Development and with the previous sanction of the Central Government made regulation for amendment of certain provisions of the Service Regulations, 2010. By way of the amendment, the Competent Authority specified in Regulation 2 (g) and the Appellate Authority specified in Regulation 50 of the Service Regulations, 2010 stood substituted. The notification for amendment was to be published in the Gazette of India, Extraordinary, Part-III, Section 4 in December 2012. The Board of Directors of the Bank approved the amendment through a circulatory board note dated 10th January, 2013. By a communication dated 24th May, 2013, the petitioner was apprised by the General Manager of the Bank about the changes of the disciplinary and the appellate authority in respect of the Scale-II officers of the Bank. The Ministry of Finance by a communication dated 13th June 2013, issued to the Chairman of all the Regional Rural Banks, intimated them about the approval of the proposed amendment after consultation with NABARD and the sponsor Banks. The notification dated 12th August, 2013 was ultimately published in the official gazette on 20th November, 2013 and the BGVB Service (Amendment) Regulations, 2013 came into effect on and from the said date. 47. It also appears from record that the disciplinary proceeding was initiated by the Chairman by issuance of charge sheet in September 2011 when the Service Regulations, 2010 was in vogue. The Service Regulations, 2010 stood officially amended by publication of the amended Regulations, 2013 in November 2013. However, as the process for amendment stood finalised in December 2012 the Bank intimated the petitioner about the substituted disciplinary and appellate authority in May 2013, ie, prior to the official publication of the amended regulations. The Service Regulations, 2010 stood officially amended by publication of the amended Regulations, 2013 in November 2013. However, as the process for amendment stood finalised in December 2012 the Bank intimated the petitioner about the substituted disciplinary and appellate authority in May 2013, ie, prior to the official publication of the amended regulations. Admittedly, the petitioner was aware that the substituted disciplinary authority in respect of Scale-II officers was the General Manager in place and instead of the Chairman. 48. The disciplinary authority as per Service Regulations, 2010 had duly appointed an inquiry officer to conduct the enquiry with regard to the allegations set out in the charge sheet and the petitioner was given ample opportunity to defend himself before the inquiry officer. The enquiry commenced in November 2011 and the enquiry stood concluded in September 2012. In spite of repeated intimations, the petitioner did not participate in the enquiry. 49. The enquiry proceeding was forwarded to the petitioner by a communicating letter dated 26th November, 2012 and he was permitted to file his summary argument in his defence. The petitioner replied to the aforesaid communication by a letter dated 10th December, 2012 addressed to the inquiry officer highlighting that the writ petition being WP No. 21089 (W) of 2011 filed by him challenging the initiation of the disciplinary proceeding was pending consideration before the Calcutta High Court. He requested the inquiry officer to withdraw, revoke and/or cancel all correspondences and proceedings failing which he would be compelled to bring the matter to the notice of the Hon'ble Court for appropriate relief. No substantive reply forthcoming from the petitioner, the inquiry officer submitted his report on 26th April, 2013. The enquiry report was forwarded to the petitioner by the General Manager by a forwarding letter dated 03rd May, 2013. 50. As in the meantime the note of the Board of Directors dated 10th January, 2013 regarding change of the disciplinary and appellate authorities was already circulated amongst all the regional rural Banks, accordingly the Bank thought it fit to apprise the petitioner about the substituted authorities by the communicating letter dated 24th May, 2013, in case the petitioner intends to avail the opportunity to seek relief from the higher forum. Be it noted that the amended provision was not published in the official gazette till then. 51. Be it noted that the amended provision was not published in the official gazette till then. 51. Though the petitioner sounded a word of threat by his letter dated 10th December, 2012, for approaching the High Court for necessary relief, but surprisingly he did not take any steps in the matter. The Court by order dated 10th January, 2012, passed in WP 21089 (W) of 2011 permitted the Bank to continue the enquiry proceeding but restrained the Bank from passing any final order without the leave of the Court. 52. As the petitioner was nearing his due date of superannuation, the Bank approached the Court by filing an application being CAN 8241 of 2014, for leave to make and publish the final order in the disciplinary proceeding. During the pendency of the writ petition the petitioner retired from service in February 2015. 53. The Court, after hearing the submissions made on behalf of both the parties, by order dated 29th January, 2016 dismissed the writ petition with costs assessed at rupees one lac and directed the Bank to take immediate steps to make and publish the final order. The appeal preferred by the petitioner challenging the order passed by the Ld. Single Judge stood dismissed by the Hon'ble Appeal Court on 05th February, 2016. However, the costs was reduced to Rs. 25,000/- only. 54. The Bank published the final order by imposing penalty of removal from service on 05th May, 2016. 55. The plea of the petitioner that the disciplinary authority being the Chairman initiated the proceeding in 2011 and accordingly he cannot act as the appellate authority, does not appeal to the Court. Prior to the completion of the disciplinary proceeding the Service Regulations, 2010 stood amended by promulgation of the amended Service Regulations, 2013. The inquiry officer concluded the enquiry in 2013 but the final order could not be passed in view of the interim order passed by the court. After the amended Service Regulations came into force, the erstwhile disciplinary authority being the Chairman lost competence to act as the disciplinary authority. By virtue of the amended Regulations, the General Manager being the competent authority has dealt with the enquiry report submitted by the inquiry officer and passed the final order. After the amended Service Regulations came into force, the erstwhile disciplinary authority being the Chairman lost competence to act as the disciplinary authority. By virtue of the amended Regulations, the General Manager being the competent authority has dealt with the enquiry report submitted by the inquiry officer and passed the final order. There was no legal infirmity as regards competence of the General Manager, to act as the disciplinary authority, in respect of a Scale II officer, on the day the final order was passed. 56. The contention of the petitioner that the General Manager acted beyond the statutory rules and assumed the power of the disciplinary authority is absolutely misconceived. From the aforesaid narration of facts, it is crystal clear that the petitioner was made aware of the substituted disciplinary and appellate authority way back in May 2013. The petitioner has not suffered any prejudice on account of the change of the disciplinary authority. He has also not been able to satisfy the court as to the advantage he would have faced had the Chairman dealt with his case in place of the General Manager. 57. The Service Regulations, 2010 as well as the amended Service Regulations, 2013 both provides for the right to prefer appeal against the order passed by the disciplinary authority. Previously, the appellate authority was the Board of Directors, later substituted by the Chairman. It was open for the petitioner to prefer appeal before the available appellate authority had he been genuinely aggrieved by the order of the disciplinary authority. Without exhausting the statutory provision for appeal the petitioner ought not to have approached the writ court directly challenging the order of the disciplinary authority. Lack of jurisdiction of the disciplinary authority to deal with the disciplinary proceeding is a good ground for preferring appeal, which the petitioner failed or refused to avail. 58. The petitioner has not pleaded mala fide and/or bias against the disciplinary authority, accordingly the said issue is not dealt with herein. No ground alleging bias has been made out in the petition. 59. The Supreme Court in Ananta Saha (supra), relying upon several other decisions of the Supreme Court, reiterated that the law which is to be applied in a case, is the law prevailing on the date of the decision making. On the day the final order was passed the General Manager was the competent authority. 60. 59. The Supreme Court in Ananta Saha (supra), relying upon several other decisions of the Supreme Court, reiterated that the law which is to be applied in a case, is the law prevailing on the date of the decision making. On the day the final order was passed the General Manager was the competent authority. 60. The petitioner strenuously contends that no charge with regard to causing actual financial loss to the Bank has been mentioned in the charge sheet. The charge was of exposing the Bank to financial loss. As the pecuniary loss suffered by the Bank was not quantified, accordingly, it was not open for the Bank to withhold his gratuity. 61. The petitioner relies upon the proviso to Regulation 72 (2) of the Service Regulations, 2010, whereby the Bank is entitled to forfeit gratuity only to the extent of the financial loss caused to the Bank. As the Bank has not quantified the financial loss, accordingly, his gratuity ought not to have been forfeited. On this score the petitioner relies upon the decision delivered by the Hon'ble Supreme Court in the matter of C.G. Ajay Babu (supra) wherein it has been held that forfeiture of gratuity is not automatic on dismissal from service; it is subject to sub-sections (5) and (6) of Section 4 of the Payment of Gratuity Act, 1972. 62. The Court is not convinced with the submission of the petitioner in this regard. The proviso to Regulation 72 (2) is restricted only in respect of an 'employee' of the Bank. The service regulations guiding the petitioner creates a vivid distinction between an 'employee' and an 'officer' of the Bank. The petitioner was a Scale- II 'officer' of the Bank and as such the aforesaid regulation in respect of an 'employee' will not come to his aid. 63. Regulation 72 (2) (e) specifically lays down that the gratuity was payable on termination of service provided the termination is not by way of punishment. The same implies that the amount of gratuity to be forfeited is not restricted to the extent of financial loss caused to the Bank. A plain reading of the Regulation suggests that if an 'officer' is terminated by way of penalty then the Bank was entitled to forfeit the gratuity, irrespective of the fact, whether the Bank sustained any financial loss or not. A plain reading of the Regulation suggests that if an 'officer' is terminated by way of penalty then the Bank was entitled to forfeit the gratuity, irrespective of the fact, whether the Bank sustained any financial loss or not. Even exposure of the Bank to financial loss may be a reason for forfeiture of gratuity of a terminated 'officer'. 64. In Ajay Babu (supra) the Court records that the respondent was not convicted of misconduct and accordingly there was no justification for forfeiture of gratuity. In the case at hand, the petitioner has been removed from service by the disciplinary authority in conclusion of the departmental proceeding. The allegation of causing financial loss to the Bank assessed at several lac of rupees stood proved. The provision of the Payment of Gratuity Act, 1972 also provides for forfeiture of gratuity to the extent of damage or loss so caused. Accordingly, the action of the Bank in withholding the gratuity as consequence of punishment of removal from service, cannot be faulted. 65. In Jaswant Singh Gill (supra) the court found that the disciplinary authority has not quantified the loss or damage and the service rule under consideration did not provide for withholding retiral benefits or gratuity. The court interpreted the service rule and held that though the disciplinary proceeding was pending, the employee was permitted to retire voluntarily and his service had not been extended. Without extension of service major penalty cannot be imposed. In the instant case the service of the petitioner stood extended prior to his normal date of superannuation for the sole purpose of completion of the disciplinary proceeding. The same is permissible as per the service regulations guiding the petitioner. The charge sheet, enquiry report and the penalty order clearly indicates the actual financial loss caused to the Bank due to the misconduct of the petitioner. Accordingly, the ratio laid down in Jaswant Singh Gill (supra) will not be applicable in the instant case. 66. The submission of the petitioner that the penalty of removal from service cannot be imposed on a superannuated officer also does not have any legs to stand upon. The service regulation of the petitioner clearly permits for continuation of the disciplinary proceeding even after retirement. In the case at hand the charge sheet was issued in 2011 and the enquiry stood concluded in 2013. The service regulation of the petitioner clearly permits for continuation of the disciplinary proceeding even after retirement. In the case at hand the charge sheet was issued in 2011 and the enquiry stood concluded in 2013. The final order could not be passed in the disciplinary proceeding in view of the interim order passed in the pending writ petition filed by the petitioner. It is only after the dismissal of the writ petition in 2014 and the dismissal of the intra court mandamus appeal in 2016, the final order imposing penalty was passed in May 2016. In the meantime the petitioner retired from service in February 2015. The pendency of the writ petition from 2011 till 2016 should not stand in the way of the Bank from imposing any of the penalties specified in the regulations. The Bank was in no way responsible for the delay in disposal of the pending writ petition. The carriage of the proceedings lied upon the petitioner. Assuming for argument sake that the petitioner was also not responsible for the delay either, even then, he ought not to get any advantage due to the delay in disposal of the writ petition filed by him. A party ought not to suffer on account of the delay in disposal of the pending litigation. 67. The ratio laid down by the Supreme Court in the matter of Rajinder Lal Capoor (supra) will not be applicable in this case as the facts of the two cases are completely different. In Rajinder Lal (supra) the charge sheet was issued after the delinquent retired from service, whereas in this case the charge sheet was issued when the petitioner was in service. The enquiry was concluded and the report was forwarded to the petitioner long prior to his retirement. The final order could not be passed in view of the restraining order passed by the court in the writ petition filed by the petitioner. 68. In Anant R. Kulkarni (supra) the court observed that the relevant rules governing the service condition of an employee are the determining factors as to whether and in what manner the domestic enquiry can be held against a retired employee. The court held that it is settled legal proposition that a departmental enquiry can be quashed on the ground of delay, provided the charges are not very grave. The court held that it is settled legal proposition that a departmental enquiry can be quashed on the ground of delay, provided the charges are not very grave. The court held that the charges in that case were neither specific nor grave. The charges were not accompanied with any statement of allegations, or any details thereof. It was under such circumstances that the court interfered in that matter. In this case the service law of the petitioner permits continuation of the disciplinary proceeding even after retirement. There is hardly any delay on the part of the Bank in concluding the disciplinary proceeding. In fact, the proceeding was in the verge of completion long before the scheduled date of retirement of the petitioner. The same got held up due to the interim order passed by the court. The petitioner cannot take any advantage of the delay in conclusion of the disciplinary proceeding, more so, after dismissal of the writ petition with costs. On the contrary, it may be said that the petitioner himself was largely responsible for the delay in completion of the disciplinary proceeding. The petitioner cannot take advantage of his own wrong. 69. In Ajmer Singh (supra) disciplinary proceeding was initiated in accordance with the Punjab Police Rules where there was a statutory right to give an opportunity of hearing prior to passing an order of punishment. The said right of hearing was taken away by the subsequent amendment. The court held that the substantive right of hearing was not only statutory but was also in consonance with the principles of natural justice. It was in such circumstances that the court held that once the proceeding was initiated under a particular set of rules, it was incumbent to conclude the proceedings in accordance with those rules. Such is not the case at hand. Here the rules have not been changed. It is the competent authority who has been substituted. The petitioner was given prior intimation about the change and reasonable opportunity to defend himself before the competent authority, who applied his mind and upon appreciation of the facts passed necessary orders therein. Moreover, the Supreme Court in its latter decision in the matter of Ananta Saha (supra) clearly laid down that the law on the date of the decision making has to be applied. Moreover, the Supreme Court in its latter decision in the matter of Ananta Saha (supra) clearly laid down that the law on the date of the decision making has to be applied. In Usha Kheterpal Waie (supra) the court was of the opinion that if there is clear intention to enforce draft Rules in future and the same has been sent for notification, then any action taken on the basis of the draft rules is valid. Accordingly, the action taken by the Bank in forwarding the enquiry report by the pen of the General Manager, being the substituted competent authority, does not suffer from any illegality. 70. The decision in the case of Garware Nylon (supra) reiterates the settled proposition that the effective date of coming into effect of the law is the date on which the notification is published in the official gazette. Here the amended provision officially came into effect in November 2013. The Bank intimated the petitioner about the proposed amendment prior to the same being published in the official gazette. The substituted competent authority took a final decision in the matter in May 2016 that too, pursuant to the leave grated by this court. Apart from forwarding the enquiry report, no effective decision was taken by the proposed competent authority prior to publication of the amendment in the official gazette. There is neither lack of competence nor overreaching of jurisdiction of the competent authority in deciding the issue. 71. In B. Karunakar (supra) the court candidly laid down that forwarding the enquiry report does not have any adverse effect on the proceeding. 72. The facts of the case do not warrant remand of the matter for de novo trial. 73. The Supreme Court on repeated occasions has made it clear that in a proceeding under Article 226 of the Constitution, the High Court does not act as an appellate authority or re-appreciate evidence. Interference is called for only if there is a glaring defect in the decision making process. 74. The service regulations of the petitioner provides for preferring appeal against the order passed by the disciplinary authority. The petitioner cannot bypass the same and approach the high prerogative writ jurisdiction of the Court to disturb the finding and the penalty imposed by the disciplinary authority. 74. The service regulations of the petitioner provides for preferring appeal against the order passed by the disciplinary authority. The petitioner cannot bypass the same and approach the high prerogative writ jurisdiction of the Court to disturb the finding and the penalty imposed by the disciplinary authority. The same could have been possible had there been any infraction of the statutory rules or the disciplinary proceeding was conducted contrary to the principles of natural justice. It does not appear that there has been any contradiction with the statutory rules guiding the petitioner or there has been any violation in the principles of natural justice. The writ petition accordingly does not call for any interference. 75. The statutory period to prefer appeal against the order of the disciplinary authority lapsed long back. However, the petitioner is granted a further opportunity to avail the statutory remedy. The petitioner will be at liberty to prefer the statutory appeal before the appellate authority in accordance with law. In the event an appeal is preferred by the petitioner within a period of five weeks, keeping in mind that the petitioner is a retired person, the appeal shall be considered by the authority, strictly in accordance with law, within a period of sixty days thereafter. The appellate authority shall communicate the reasoned order to the petitioner immediately thereafter. 76. Since the competence of the General Manager to decide the issue has already been answered by this court, it will not be open for the petitioner to reagitate the issue before the appellate forum all over again. The petitioner shall be entitled to challenge the order of the disciplinary authority only on merits. 77. Wp 15456 (W) of 2016 stands disposed of. 78. No costs. 79. Urgent certified photocopy of this judgment, if applied for, be supplied to the parties or their advocates on record expeditiously on compliance of usual legal formalities.