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Gujarat High Court · body

2021 DIGILAW 613 (GUJ)

AMITA C. NANAVATI v. STATE BANK OF INDIA

2021-07-22

BIREN VAISHNAV

body2021
JUDGMENT : 1 This petition under Article 226 of the Constitution of India has been filed with the following prayers, which was subsequently amended. The original prayer and the amended prayers read as under: “23(A) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ, order or directions quashing and setting aside the inquiry officers report dated 08.11.2004 in respect of chargesheet No. AGM/III/DC/39 (at Annexure-G hereto) as well as order dated 31.08.2006 passed by the disciplinary authority (at Annexure-N hereto) and 17.01.2007 passed by the appellate authority of the respondent – Bank (at Annexure – P hereto) and further be pleased to direct the respondent – Bank to reinstate the petitioner with all consequential benefits; Amended carried out as per Court’s order 23(AA) YOUR LORDSHIPS may be pleased to issue a writ of mandamus or a writ in nature of mandamus or any other appropriate writ, order or direction quashing and setting aside impugned order dated 14.07.2017 (at ANNEXURE-Q) issued by respondent – bank to release pension in favour of petitioner along with arrears and interest at the rate of 12% for the delayed period. 23(AB) YOUR LORDSHIPS may be pleased to direct the respondent – bank to supply the entire and complete service sheet and leave record of the petitioner for the purpose of determining the qualifying service of petitioner with the respondent bank and calculating pension and other benefits accordingly. Amended carried out as per Court’s order 18(A) It is respectfully stated and submitted that bank had earlier not paid gratuity / Provident Fund and therefore the petitioner had moved an application registered as Civil Application No. 6492 of 2013 seeking directions upon respondent bank to release the terminal benefits in favour of petitioner. The petitioner further submits that pursuant to the order passed by this Hon’ble Court in the aforesaid application, the bank has released the amount towards gratuity / provident fund. However, since pension is not released, the petitioner was compelled to prefer an application being Civil Application No. 5196 of 2017 with a prayer to direct respondent to pay pension along with arrears and interest at the rate of 12% to the applicant during pendency of the captioned petition. However, since pension is not released, the petitioner was compelled to prefer an application being Civil Application No. 5196 of 2017 with a prayer to direct respondent to pay pension along with arrears and interest at the rate of 12% to the applicant during pendency of the captioned petition. The aforesaid application came to be disposed of vide order dated 06.06.2017 with a direction to the respondent bank to expeditiously undertake necessary exercise with regard to petitioner’s request for pension and after taking into consideration her service record and aplicable service regulations if the petitioner is found eligible for pension in accordance with service Regulations then such amount shall be paid to the petitioner within six weeks from the receipt of the order, with interest at the rate of 8%. Annexed hereto and marked as ANNEXURE-P is a copy of aforesaid order dated 06.06.2017. 18(B) Thereafter, the petitioner received an order dated 14.07.2017 from the respondent bank whereby the petitioner is informed that she is not eligible for pension since the service length of the applicant is less than 20 years. Annexed hereto and marked as ANNEXURE – Q is a copy of order dated 14.07.2017 issued by respondent bank.” 2. The facts in brief are as under: 2.1 The petitioner was working with the State Bank of India, Salabatpura Branch, Surat. The case of the petitioner is that she received a show cause notice, first on 29.03.2004 suggesting that she had violated the rules of conduct inasmuch as that she had borrowed from M/s. Panchsheel Co-Op Bank Ltd., Surat an amount of Rs.25,000/- on 30.04.2002 without the written prior permission of a designated authority. That she had also availed a House Renovation Loan for Rs.1,50,000/- against mortgage of property from Jahnavi Home Development and Finance Ltd., Surat on 20.11.2001 without the written prior permission of a designated authority. Further that, she had taken a loan of Rs.16,151/- for house repairing from Shri Vitrag Co-operative Bank Ltd., Surat on 20.06.2002 and that the cheque NO.400318 issued to Shri Vitrag Cooperative Bank Ltd., Surat towards the repayment of loan has been returned with the reason “Refer to drawer”. Further that, she had taken a loan of Rs.16,151/- for house repairing from Shri Vitrag Co-operative Bank Ltd., Surat on 20.06.2002 and that the cheque NO.400318 issued to Shri Vitrag Cooperative Bank Ltd., Surat towards the repayment of loan has been returned with the reason “Refer to drawer”. Further that, she had not repaid the loan availed from Shri Vitrag Co-Operative Bank Ltd. In this connection, they have written a letter No.VCB/105/2003-04 dated 14.07.2003 and a copy has been endorsed to us advising to repay the amount of Rs.16,151/- outstanding in loan account. 2.2 The second show cause notice of the same date was issued alleging that she remained unauthorizedly absent since 28.03.2003 to 03.05.2003 and thereafter from 07.05.2003 till date and that the petitioner didn’t even gave the reasons for her absence. 2.3 In this regard, the bank, by various letters addressed to the petitioner, asked for the reasons of unauthorized absence of the petitioner, which she neither acknowledged nor responded to any of the bank’s letters which were sent to the petitioner’s last recorded address by registered A.D. The details of the same are as under: Letter No. Date of the Letter Memo 3/03 02-07-2003 Memo 4/03 25-07-2003. It is further stated in the show cause notice that the petitioner have not reported for duty and remained unauthorizedly absent from duty for 263 days as on that day. 2.4 She responded to both these notices, by which the petitioner was faced with disciplinary proceedings. For the show cause notice of the imputation, a detailed show cause notice was again issued on 26.04.2004. A notice of inquiry was received on 22.07.2004 and 11.08.2004 with reference to both the charges. Inquiry Report was furnished on 08.11.2004. A reply was filed by the petitioner to the report furnished by the Inquiry Officer, wherein, as far as absence is concerned, she submitted that she was absent as a result of serious domestic issues concerning her husband. The allegations were held to be proved and a tentative order was issued on 02.06.2006. The petitioner was asked to show cause on 17.06.2006 to which she responded and by an order dated 31.08.2006, the disciplinary authority passed an order of removal from service with superannuation benefits i.e. pension, and/or provident fund and gratuity as would be due otherwise. This was a subject matter of challenge in the petition as originally framed. The petitioner was asked to show cause on 17.06.2006 to which she responded and by an order dated 31.08.2006, the disciplinary authority passed an order of removal from service with superannuation benefits i.e. pension, and/or provident fund and gratuity as would be due otherwise. This was a subject matter of challenge in the petition as originally framed. It appears that, much thereafter, a civil application No.5196 of 2017 was filed for a prayer to direct the opponent party to pay pension along with arrears. This was filed on 04.04.2017 i.e. ten years after the petition was filed. The Court passed an extensive order on the civil application, which reads as under: “14. Ordinarily, the Court would not pass any direction to the bank to release pension, when substantial challenge against order of removal from service is pending consideration before the Court. 15. However, having regard to the fact that (a) almost 10 years have passed since the service of the petitioner-applicant came to be terminated; and also having regard to the (b) submission by learned advocate for the petitioner – applicant that actually the removal order itself declares that the applicant – petitioner would be paid retiral benefits including Pension / Provident Fund and Gratuity and that, therefore, there is no impediment and/or valid reason for not releasing Pension and/or in passing appropriate direction to release the pension, the Court is inclined to consider the applicant’s request (for pension) and the grievance ventilated in present application. 16. At this stage, it is necessary to mention that Mr.Sood, learned advocate for respondent bank made reference of order dated 24.1.2004 passed by the Court in Civil Application No. 6492 of 2013. The said order reads thus: “1 The applicant has taken out this application for prayer in para no. 16B. “16(B) YOUR LORDSHIPS may be pleased to direct the opponents herein to pay the terminal benefits to the applicant original petitioner herein during pendency of the aforementioned petition has been filed without prejudice to the rights and contentions raised in the above captioned petition; 2. In the main petition, the applicant has challenged the order of termination. 3. The prayer made in this application is on the basis that till the main petition is decided, the opponents should be directed to pay the Provident Fund and other amounts for which the applicant is entitled. 4. In the main petition, the applicant has challenged the order of termination. 3. The prayer made in this application is on the basis that till the main petition is decided, the opponents should be directed to pay the Provident Fund and other amounts for which the applicant is entitled. 4. This Court on 21.08.2013 passed following order: ‘1. Learned advocate Mr.Nagesh C.Sood for the Bank informs the Court that the plea of the applicant for Provident Fund is under process and is likely to be settled within a period of 2 months. Mr.Sood also informs the Court that there are certain amounts due and payable by the applicant. Therefore, he requests that if the applicant is to receive the gratuity amount from the Bank, the applicant should be agreeable for adjustment of the amount due and payable by the applicant to bank from the ultimate amount to be paid to the applicant towards her Provident Fund. Learned advocate for the applicant Ms.Shivangi Rana for the applicant states that the applicant has already addressed the letter dated 14.08.2013 requesting the Bank to release the amount of gratuity and to adjust the amount payable by the applicant from the amount of Provident Fund when became payable to the applicant. 2. As pointed out by learned advocate Mr.Sood for the Bank, total amount of Rs.2,02,745/ is payable to the applicant towards gratuity and since the applicant is agreeable for adjustment of the amount due and payable by the applicant, against the final amount of the Provident fund, the gratuity amount could be paid to the applicant. 3. In view of the above, the opponent No.1Bank is directed to release and pay Rs.2,02,745/ to the applicant being the amount of gratuity available to the applicant within a period of one week from the date. 4. It is made clear that at the time of settling the account as regards the dues to be paid by the applicant, the Bank shall consider the plea of the applicant as to what actual amount due to be paid by the applicant to the Bank and then settle the accounts of the applicant. 5. S.O. to 11.10.2013. (emphasis supplied) 5. After the aforesaid order was passed, the applicant received the amount of gratuity. 6. 5. S.O. to 11.10.2013. (emphasis supplied) 5. After the aforesaid order was passed, the applicant received the amount of gratuity. 6. As per the say of learned advocate Mr.Sood, the applicant was also paid the amount of provident fund after settling her account with the Bank. 7. Learned advocate for the applicant, however, made grievance that the calculation of the provident fund account has not been properly done. It was pointed out that the applicant could be entitled to much more amount on account of provident fund than what is calculated by the opponents. Learned advocate for the applicant, therefore, requested for supply of the statement of provident fund account. 8. Today, when the application is taken up for hearing, learned advocate for the applicant stated that the applicant got the statement of the provident fund account. However, as per the say of the applicant, the applicant has not been given the statement of her salary account, which would reflect as to how her entitlement towards provident fund is considered. Be that as it may, now since the applicant has received gratuity amount and some amount towards the provident fund, as per the calculation of the opponents, if any grievance remains towards the entitlement of the applicant for the provident fund or any other retirement dues, the applicant can agitate such grievance when the main matter is taken up for final hearing. So far as this application is concerned, the Court is of the view that no further order needs to be passed. 9. The application is thus disposed of.” 17. Besides this, Mr. Sood learned advocate for the respondent bank also submitted that according to respondent bank, the petitioner is not eligible for pension inasmuch as according to the Rules of the bank, so as to be eligible for pension employee should have completed continuous service of 20 years whereas present applicant is not eligible for pension because before he came to be removed from service, he had not completed continuous service for 20 years. 18. Whether the said submission by learned advocate for the respondent bank is factually correct or not and whether the petitioner had actually completed 20 years of continuous service as contemplated under the Service Regulations of the bank or not, are question of fact which can be decided only on consideration and examination of service record of the applicant. 19. 18. Whether the said submission by learned advocate for the respondent bank is factually correct or not and whether the petitioner had actually completed 20 years of continuous service as contemplated under the Service Regulations of the bank or not, are question of fact which can be decided only on consideration and examination of service record of the applicant. 19. However, in view of the submission by the learned advocate for the petitioner-applicant that the order of the disciplinary authority itself clarifies that the amount towards Pension, Provident Fund and Gratuity will be paid to the petitioner, it would be appropriate to turn to the order dated 31.08.2006 passed by the disciplinary authority. The said order reads thus: Be removed from service with superannuation benefits i.e. Pension and / or provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment, as per clause no.6(b) of Annexure-II to 'Memorandum of Settlement on Disciplinary Action Procedure for workmen' pertaining to Bipartite settlement dated 10.04.2002.(emphasis supplied) 20. Plain reading of the said order clearly gives out that the petitioner is considered eligible for all superannuation benefits i.e. Pension and / or Provident Fund and Gratuity as available under the Rules and Regulations prevailing at the relevant time. 21. Under the circumstances, the applicant's case/ claim for pension must be considered and decided in accordance with Rules and Regulation. 22. This process must be done without delay. 23. Whereas in present case any steps have not been taken for almost 10 years and though this application is filed/ served since April, 2017 the Bank has not cared to file any reply. 24. In light of specific clarification in the removal order passed by disciplinary authority, the submission that the order passed by the disciplinary authority permits payment of superannuation benefits including Pension and/ or provident fund and gratuity in accordance with Regulations, cannot be disregarded or rejected. 25. Under the circumstances, it appears that present application can be disposed of with following observation and direction. 26. From plain reading of the order dated 31.08.2006 it has clearly emerged that bank has accepted that respondent is eligible and entitled for superannuation benefits viz. Pension and/ or provident fund and gratuity, in accordance with Rules and Regulation. 25. Under the circumstances, it appears that present application can be disposed of with following observation and direction. 26. From plain reading of the order dated 31.08.2006 it has clearly emerged that bank has accepted that respondent is eligible and entitled for superannuation benefits viz. Pension and/ or provident fund and gratuity, in accordance with Rules and Regulation. Differently put, the terminal benefits are not forfeited by the bank on ground of removal from service. Actually removal from service was effected along with clarificatory order that the employee would be eligible for superannuation benefits including Pension and/ or Provident Fund and Gratuity. 27. Therefore, bank will be obliged to pay pension in accordance with Rules and Regulations of the bank. 28 Whether the petitioner is actually entitled and eligible for pension in accordance with Rules and Regulations will have to be examined in light of the service record of the petitioner and relevant provisions under service Regulations. 29. Therefore, the bank is directed to expeditiously undertake necessary exercise with regard to petitioner's request for pension and after taking into consideration his service record and applicable service regulations if the petitioner is found eligible for pension in accordance with service Regulations then such amount shall be paid to the petitioner within six weeks from the receipt of Certified Copy of this Order, with interest at the rate of 8%. 30. It is, however, clarified that if on examination of petitioner's service record in light of applicable and relevant service Regulations it is found that the petitioner is not eligible for pension on the ground that he does not fulfill eligibility criteria (viz. has not completed 20 years of services) or in light of any other relevant provisions, then the respondent bank shall pass speaking order recording specific reasons for not accepting the petitioner's request and shall convey the same to the petitioner within six weeks from receipt of certified copy of this order. 31. The pendency of the petition and present order of this application will not stand in way of the petitioner to take appropriate step/ action, if such need arises and/ or if he feels aggrieved by the order (which may be passed by the competent authority with reference to his request for pension). 32. With aforesaid clarification and direction, the application is partly allowed. Rule is made absolute to the aforesaid extent. 32. With aforesaid clarification and direction, the application is partly allowed. Rule is made absolute to the aforesaid extent. 2.5 Pursuant thereto, the respondent-bank by a communication dated 14.07.2017, found that the petitioner had rendered service in the bank from 01.03.1986 to 31.08.2006 out of which the period of service from 01.03.1986 to 31.08.1986 was on probation and further she was on extraordinary leave for 284 days. The total length of service from the date of appointment i.e. 01.03.1986 to 31.08.2006 was 20 years and six months. But, after excluding the period of probation and the extraordinary leave, pensionable service was 19 years and 2 months, and therefore, the petitioner was not entitled to the pension. The petition was, therefore, amended with the prayers as referred to hereinabove. 3 Ms. Shivangi Rana, learned advocate appearing for Mr.Majmudar, learned advocate for the petitioner, would submit as under: 3.1 She would submit that the order of penalty though extended pensionary benefits, the misconduct was not such grave for which she would suffer such disproportionate penalty. 3.2 She had expressed regrets as far as the charge sheet on the absence was concerned. But perusal of the petition would indicate that there was no substantial challenge on merits to the charge sheet of 26.04.2004. When questioned on this count, Ms.Rana, learned advocate, would draw the attention of this Court to the additional affidavit filed by the petitioner on 10.08.2018, wherein, in detail she has sought to defend and contest the charge sheet with regard to the five omissions in the context of advances. 4. Mr.Nagesh Sood, learned counsel who appeared for the respondent – State Bank of India, would draw the attention of the Court to the affidavit-in-reply filed, initially in July 2013 and to the amended petition and submitted that after a due disciplinary inquiry, based on the evidence on record, the disciplinary authority as well as the appellate authority concluded that the charges levelled against the petitioner were proved on the basis of unassailable evidence. The veracity of the charges were not challenged by the petitioner. He would further submit that the order of removal was absolutely justified and infact, the fact that the petitioner had only been faced with the penalty of removal with other terminal benefits indicated the consideration of the bank and the justiciability of the order, therefore, could not be faulted. The veracity of the charges were not challenged by the petitioner. He would further submit that the order of removal was absolutely justified and infact, the fact that the petitioner had only been faced with the penalty of removal with other terminal benefits indicated the consideration of the bank and the justiciability of the order, therefore, could not be faulted. Even the appellate authority had passed a detailed speaking order. 5. Considering the submissions made by the learned advocates appearing for respective parties, what emerges from the record, is as under: 5.1 Two separate charge sheets of the same date were issued to the petitioner; one for unauthorized absence and the other for the five omissions on the question of having obtained advances from various financial institutions. 5.2 Perusal of pages 31 to 33 of the paper book would indicate that based on an inquiry report, which neither the petitioner nor the respondent bank has placed on record, the authorities had found that the petitioner had committed various lapses. A tentative order and the final order are the only documents which are available for the Court’s perusal. 5.3 Though Ms.Shivangi Rana, learned counsel for the petitioner, would draw the attention of the Court to the additional affidavit filed in the year 2017, trying to contest the allegations with regard to the advances obtained, it is an admitted fact that the same do not appear to have been contested before the disciplinary authority. Ms.Rana, learned advocate, would feebly assail the procedural requirements by drawing the attention of the Court to the submission made that the inquiry is conducted in a very casual manner and the other evidences on record. The procedural aspect of the inquiry proceedings had not been challenged before this Court. 6. It is under these circumstances, that from the pleadings in the affidavit-in-reply filed in the year 2017, it is evident that the defense that is now sought to be made with regard to subsequent charge sheet is an after thought. Perusal of the order under challenge would indicate which is so confirmed in the appeal that the petitioner has requested the authorities to show some mercy. The appellate authority on having perused the record, found the allegations against the petitioner as “proved”. Perusal of the order under challenge would indicate which is so confirmed in the appeal that the petitioner has requested the authorities to show some mercy. The appellate authority on having perused the record, found the allegations against the petitioner as “proved”. The conclusion of the disciplinary authority was that the petitioner made false affidavits / declarations and submitted fake and fraudulent documents, provided wrong information to bank / financial institutions for obtaining loans and also obtained double funds against the same property which was unimpeachable. The only defense of the delinquent was that she had signed the documents to save her own life which did not appeal to the appellate authority. It was therefore, in this context that the observations of the appellate authority need consideration which says that the decision of the disciplinary authority to impose the penalty of “removal” in a case wanting nothing less than dismissal seems to have emerged out of compassion but without compromising the interest of the bank. 7. There is reason, therefore, to exercise jurisdiction under Article 226 of the Constitution of India, as far as the justiciability of the order of penalty is concerned. That brings us to the amended petition by which the order of 14.07.2017 has been assailed by the petitioner which has denied pension to the petitioner on the twin grounds that in computing 20 years of service, the period of probation from 01.03.1986 to 31.08.1986 has to be excluded. Further, the period of extraordinary leave of 284 days also needs to be excluded. The case of the bank is that she became a member of the pension fund on 01.09.1986. Apparently, the deficit, therefore, in completing 20 years is of ten months. That is an issue which the petitioner’s counsel has vehemently disputed by submitting that the service record of the petitioner has not been properly verified. 8. In such background, the only direction that can be given is the bank is directed to take a fresh look on the order of 14.07.2017 on the basis of a representation that the petitioner shall make giving full service details. As far as the order of penalty so confirmed by the appellate authority and the prayers made in the petition for setting aside the order, the same is not interfered with. The petition is disposed of, accordingly. Rule is discharged.