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2022 DIGILAW 1329 (MP)

General Manager Canara Bank v. Prakash Mandave

2022-11-09

AMAR NATH (KESHARWANI), VIVEK RUSIA

body2022
ORDER 1. The Appellants/Bank has filed this Writ Appeal under Section 2(1) of Madhya Pradesh Uchcha Nayalaya (Khand Naypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 06.04.2018 passed by Writ Court in Writ Petition No. 3011 of 2017 whereby Writ Petition filed by the respondent (hereinafter referred to as '' Writ Petitioner'') has been allowed. The facts of the case, in short, are as under;- 2. The appellants are the General Manager, Regional Manager, and Branch Manager of the then Syndicate Bank now which has been merged with Canara Bank ( hereinafter referred to as "the Bank" ). The respondent was posted as Manager at Gandhibag Branch, Nagpur. During the period between 09.11.2010 and 30.09.2011. He was caught red-handed by the Central Bureau of Investigation (hereinafter will be referred to as ''CBI'' for convenience) while accepting a bribe of Rs.5,000/- from Smt. Radhika Headau customer/borrower of the Branch. An FIR was registered for the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short ''Act, 1988'') and a charge-sheet was filed before the competent court. 3. On account of the aforesaid incident, a charge-sheet dated 14.06.2014 vide Regulation No.6 of Syndicate Bank Officer Employees (Discipline & Appeal) Regulation, 1976 was also served to him as he abused the official position for demanding and accepting the pecuniary advantage of Rs. 5,000/- in violation of Regulation 3(1) read with Regulation 24 of Syndicate Bank Officer Employees' (conduct) Regulations, 1976 which is having statutory force. The writ petitioner submitted a reply to the charge-sheet and participated in the departmental enquiry. During the pendency of the departmental enquiry, the writ petitioner attained the age of superannuation, therefore, he ceased to be in service w.e.f. 30.06.2014 but by virtue of Section 20 (3) (iii) and 46 (1) of Syndicate Bank (Employees') Pension Regulation, 1995, the departmental enquiry continued an enquiry report was submitted on 28.12.2015 to the disciplinary authority. A second show cause notice was served to the writ petitioner to which he submitted a reply and thereafter vide order dated 31.12.2015 penalty of dismissal from service was imposed upon him. 4. Being aggrieved by the aforesaid punishment, the writ petitioner preferred a departmental appeal on 18.07.2016 which came to be dismissed on 18.11.2016. Thereafter review petition was also dismissed. The bank stopped paying him the pension w.e.f. 31.05.2016. 5. 4. Being aggrieved by the aforesaid punishment, the writ petitioner preferred a departmental appeal on 18.07.2016 which came to be dismissed on 18.11.2016. Thereafter review petition was also dismissed. The bank stopped paying him the pension w.e.f. 31.05.2016. 5. The writ petitioner filed Writ Petition no.3011/2017 before this Court seeking appropriate writ, order or directions to the bank to pay the pension from 01.06.2016 onward with interest and any other relief deem as fit. 6. The bank filed a reply to the writ petition contending that as per Regulation 22(1) of Syndicate Bank (Employees) Pension Regulation, 1995 upon resignation or dismissal or removal or termination the employee shall not be entitled for his entire past service and consequentially not qualify for pensionary benefits, hence, the writ petitioner is not eligible to get pensionary benefits, thus, the writ petition is liable to be dismissed. 7. The Writ petition was finally heard and vide order dated 06.04.2018, the Writ Court has held that after the conclusion of the departmental enquiry the disciplinary authority has not passed the order in consonance with the Regulation 43 of Syndicate Bank (Employees') Pension Regulation, 1995, hence, set aside the order of termination dated 31.05.2016 as well as the order of appellate authority dated 18.11.2016 with liberty to the respondent/bank to pass a fresh order keeping in view the Syndicate Bank (Employees') Pension Regulation, 1995 within a period of 60 days. 8. Being aggrieved by the aforesaid order, the appellants/bank has preferred the present Writ Appeal. 9. Learned counsel for the appellants/bank submits that the Writ Court has wrongly set aside the order of punishment as well as appellate authority despite the fact that the writ petitioner did not challenge these two orders in the Writ Petition. The Writ Petitioner has only filed a Writ Petition claiming the release of his pension w.e.f. 01.06.2016 for which he is not entitled in view of Regulation 22(1) of Syndicate Bank (Employees) Pension Regulation, 1995. Reference has been made in support of his contention in the case of Ramesh Chandra Sharma Vs. The Writ Petitioner has only filed a Writ Petition claiming the release of his pension w.e.f. 01.06.2016 for which he is not entitled in view of Regulation 22(1) of Syndicate Bank (Employees) Pension Regulation, 1995. Reference has been made in support of his contention in the case of Ramesh Chandra Sharma Vs. Punjab National Bank & Anr reported in (2007) 9 SCC 15 in which the Apex Court in similar facts and circumstances has held that Regulation 20 (3) (iii) of the 1977 Regulations envisages continuation of a disciplinary proceeding despite the officer ceasing to be in service on the date of superannuation and for the said purpose a legal fiction has been created providing that the delinquent officer would be deemed to be in service until the proceedings are concluded and final order is passed thereon, therefore, the bank is competent to pass an order of dismissal of a retired employee also. No legal right thereby has been created in favour of the delinquent to obtain the retiral benefits. 10. Per contra, learned counsel for the writ petitioner submits that the Apex Court in the case of UCO Bank and Another Vs. Rajinder Lal Capoor reported in (2007) 6 SCC 694 decided on the same day i.e. 18.05.2007 held that though Regulation 20 (3) (iii) creates a legal fiction must be given full effect within scope and ambit and confined to the object and purport for which the same has been created. An order of dismissal or removal from service can be passed only when an employee is in service. If a person is not in employment, the question of terminating his services ordinarily would not arise unless there exists a specific rule on that behalf. Against the said order passed in the case of the aforesaid order, a Review Petition was filed by the UCO bank which came to be dismissed on 31.03.2008 which is reported in (2008) 5 SCC 257 in which the Apex Court again has held that Regulation 20 (3) (ii) and (iii) is of limited scope and its purpose is to restrain an employee from leaving service without prior approval of the competent authority. We have appreciated the arguments advanced by the learned counsel appearing for the parties and perused the record. 11. We have appreciated the arguments advanced by the learned counsel appearing for the parties and perused the record. 11. Before adverting to the merit of the case, it is important to take note that the entire disciplinary proceedings were initiated against the writ petitioner as he was caught red-handed by the officers of the investigating agency CBI while accepting the bribe. He was put to trial vide Special CBI Case No.34/2011. Vide judgment dated 23.09.2019 passed by Additional Sessions Judge-10 and Special Judge C.B.I. Court, Nagpur acquitted him from all the charges. A copy of the judgment has been filed by the writ petitioner on 01.04.2021. 13. Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995 which is to be considered here, is produced below: 43. Withholding or withdrawal of pension: The Competent Authority may, by order in writing, withhold or withdraw a pension of part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or criminal breach of trust or forgery or acting fraudulently or is found guilty of grave misconduct; Provided that where a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension per mensem payable under these regulations. This regulation 43 says that the competent authority may, by order in writing withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious offence. The present case falls in the second category if the pensioner is found guilty of grave misconduct in department proceedings initiated during his service but concluded after superannuation, the competent authority may, by order in writing withhold or withdraw a pension or a part thereof, whether permanently or for a specified period regulation In this regulation the word "the pensioner" is used therefore after retirement from the service, the Writ Petition became a pensioner as the bank was paying him a pension during pendency of the departmental enquiry. After holding him guilty of grave misconduct, it is for the competent authority to pass an order withholding or withdrawing a pension or a part thereof whether permanently or for a specified period. Therefore, after retirement the Apex Court in UCO Bank and Another Vs. After holding him guilty of grave misconduct, it is for the competent authority to pass an order withholding or withdrawing a pension or a part thereof whether permanently or for a specified period. Therefore, after retirement the Apex Court in UCO Bank and Another Vs. Rajinder Lal Capoor (supra) has held that no order of termination can be passed, the only action which can be taken under Regulation 43 is to withdraw the pension in full or in part and permanently or for a certain period . 14. In the judgment passed by the Apex Court in the case of UCO Bank and Others Vs. Prabhakar Sadashiv Sarvade reported in (2018) 14 SCC 98 it is held that Regulation 48 of the pension Regulations empowers the competent authority to withhold or withdraw a pension or a part thereof and order recovery from the pension of the whole or part of any pecuniary loss caused to the bank. It has also been held that the dismissal of an employee who had already retired is ex facie illegal and without jurisdiction. This case of the writ petitioner is on the better footing that there is no recovery against him after superannuation hence provision of Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995 would apply, at the most competent authority is liable to take a decision whether the pension is liable to withhold part of full instead of imposing the penalty of dismissal. The Apex Court in the case of Chairman - Cum- Managing Director Mahanadi Coalfields Limited reported in (2020) 18 SCC 71 , had an occasion to consider the scope of regulation relating to the services of bank employees and held that what kind of punishment can be imposed would depend upon the relevant service rule as in the aforesaid case, the relevant service Rule 9 provided deemed continuance of the employee in service for the purpose of withholding or withdrawal of pension. Hence, Writ Court has rightly directed the disciplinary authority to pass the order considering Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995. 15. Learned counsel for the bank has argued that the order imposing punishment was not challenged by the writ petitioner specifically in the Writ Petition despite that Hon'ble writ court has set aside the same . Hence, Writ Court has rightly directed the disciplinary authority to pass the order considering Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995. 15. Learned counsel for the bank has argued that the order imposing punishment was not challenged by the writ petitioner specifically in the Writ Petition despite that Hon'ble writ court has set aside the same . The Writ Court has set aside the order because unless the order of termination is set aside, no order could be passed under Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995. Once this writ Court has held that after retirement, the termination order cannot be passed and only an order in respect of withholding or withdrawing the pension can be passed under Regulation 43 of Syndicate Bank (Employees') Pension Regulations, 1995, therefore, without quashing the termination order passed by the Bank, the order in respect of grant or withdrawal of pension to the pensioner cannot be passed. After retirement, the bank paid the pension but stopped after the conclusion of the Departmental Enquiry 16. Even otherwise, the allegation in the departmental enquiry as well as criminal case are identical. The departmental enquiry was initiated because the writ petitioner was caught red-handed while accepting the bribe. Now in the criminal case, the writ petitioner has been acquitted, therefore, disciplinary authority are also liable to consider the effect of an acquittal of the writ petitioner, while passing appropriate orders in respect of the grant of pension.. In view of above, we do not find any grounds to interfere with the impugned order passed by Writ Court. Writ Appeal is hereby dismissed.