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2023 DIGILAW 445 (JHR)

Jharkhand Gramin Bank v. Rekha Sinha

2023-03-28

SUBHASH CHAND, SUJIT NARAYAN PRASAD

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JUDGMENT : Sujit Narayan Prasad, J. I.A. No.2103 of 2019 1. This interlocutory application has been filed for substitution of the respondent-writ petitioner, namely, Girjesh Kumar Sinha, who had died leaving behind his legal heirs whose details are furnished in paragraph 5 of the instant interlocutory application. 2. Considering the aforesaid fact, the instant interlocutory application stands allowed. 3. Office is directed to make necessary correction in the cause title of the instant letters patent appeal. 4. I.A. No.2103 of 2019 stands disposed of. L.P.A. No. 518 of 2018 5. With the consent of the learned senior counsel for the appellant, the instant appeal has been taken up for hearing on its merit. 6. The instant appeal is under Clause 10 of the Letters Patent is directed against the order/judgment dated 25th July, 2018 passed by the learned Single Judge of this Court in W.P.(S) No.2565 of 2016, whereby and whereunder the order of dismissal dated 12th April, 2017 has been quashed by allowing the writ petition with a direction for disbursement of post retiral benefit within the stipulated period of four weeks. 7. The brief facts of the case as per the pleading made in the writ petition required to be enumerated, reads as under: It is the case of the writ-petitioner that he was appointed in Jharkhand Gramin Bank on 17th March, 1981. While in service he was issued a Memorandum Calling For Explanation on 20th November, 2015 on the allegation that during his service tenure he has sanctioned and disbursed 34 KCC loans in favour of the borrowers who have been found non-existent. He has submitted his explanation on 07th December, 2015, however, another Memorandum Calling For Explanation was issued to him on 12th January, 2016 on the allegation that on further enquiry serious irregularities in sanction and disbursal of KCC loans have been detected. This was replied by the petitioner on 19th January, 2016 but before that another Memorandum Calling For Explanation was issued to him on 18th January, 2016. By another letter dated 19th January, 2016 the petitioner was informed that under Regulations 45(3) and 45(4) of Jharkhand Gramin Bank (Officers and Employees) Regulations, 2010 his normal retiral benefits such as leave encashment and gratuity shall be withheld till completion of disciplinary proceedings; a disciplinary proceeding was contemplated by that time. By another letter dated 19th January, 2016 the petitioner was informed that under Regulations 45(3) and 45(4) of Jharkhand Gramin Bank (Officers and Employees) Regulations, 2010 his normal retiral benefits such as leave encashment and gratuity shall be withheld till completion of disciplinary proceedings; a disciplinary proceeding was contemplated by that time. Before he superannuated from service on 31st January, 2016 he has responded to the Memorandum Calling For Explanation through his letter dated 27th January, 2016. 8. When, the writ-petitioner has been dismissed from service vide order dated 12th April, 2017, has approached this Court by filing a writ petition being W.P.(S) No.2565 of 2016 challenging the order dated 19th January, 2016 as also questioning legality of the departmental proceeding initiated against the petitioner and the order of dismissal dated 12th April, 2017 by which the writ-petitioner was dismissed from service. The deceased employee, namely, Girjesh Kumar Sinha had taken the ground that the departmental proceeding was initiated after his superannuation i.e., after 31st January, 2016. Such ground has been taken on the basis of the fact that the memorandum of charge was issued on 6th May, 2016. The learned Single Judge has accepted the aforesaid submission and by coming to the conclusive finding that the departmental proceeding will be said to be initiated on the day, when the memorandum of charge will be issued and since the day when the memorandum of charge was issued against the deceased writ-petitioner i.e., on 6th May, 2016 but prior to that he had already been superannuated from service w.e.f. 31st January, 2016, as such, the entire departmental proceeding has been rendered to be unsustainable and basis upon which the dismissal order since was passed, the same has also been held to be illegal, which is the subject matter of the instant appeal. 9. Mr. A. Allam, learned senior counsel appearing for the appellant assisted by Mr. A.K. Sahay has taken the ground that the learned Single Judge has not appreciated the fact in right perspective, since, a notice for initiation of departmental proceeding was already initiated when the writ-petitioner was in service which is in contemplation to the departmental proceeding and, therefore, it is incorrect to say that while the writ-petitioner was in service there was no departmental proceeding pending against him. The order has been challenged on the basis of the aforesaid fact. 10. The order has been challenged on the basis of the aforesaid fact. 10. We have heard the learned counsel appearing for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. 11. The fact which is not in dispute is that the writ-petitioner since was working in the Jharkhand Gramin Bank and as such was to be dealt with under the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 (hereinafter to be referred as “the Regulations, 2010”). The aforesaid regulations is having a regulation as under Regulation 45, where it has been provided that an officer or employee who is under suspension on a charge of misconduct and who attains the age of superannuation, shall be deemed to be in service even after the age of superannuation for the specific purpose of continuation and conclusion of the disciplinary proceedings and issue of final orders thereon. For ready reference, Regulation 45 of the Regulations, 2010 is being reproduced hereinbelow which reads as under : “(1) An officer or employee who is under suspension on a charge of misconduct and who attains the age of superannuation, shall be deemed to be in service even after the age of superannuation for the specific purpose of continuation and conclusion of the disciplinary proceedings and issue of final orders thereon. (2) The officer or employee who is under suspension shall not be eligible for any subsistence allowance for the period beyond the date of superannuation. (3) The officer or employee against whom disciplinary proceeding has been imitated 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. (4) The officer or employee against whom disciplinary proceedings has been initiated shall not receive any pay and/or allowances after the date of superannuation and 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 (CPF). (4) The officer or employee against whom disciplinary proceedings has been initiated shall not receive any pay and/or allowances after the date of superannuation and 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 (CPF). Explanation : For the purposes of this regulation, 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.” 12. It is evident from the Regulation 45(3) of the Regulations, 2010 that the officer or the employee against whom the disciplinary proceeding has 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 conducted and final order is passed in respect thereof. The issue which was agitated on behalf of the writ-petitioner is that, if the departmental proceeding at all was initiated while the writ-petitioner was in service and during its pendency, if the writ-petitioner would have retire from the service then the said departmental proceeding will be deemed to be in continuation till the conclusion of the departmental proceeding. But herein the departmental proceeding was not at all initiated as per the contention raised on behalf of the writ-petitioner, since, while the writ-petitioner was in service no memorandum of charge was issued and hence, there was no pending departmental proceeding against the writ-petitioner (deceased) while he was in service. Therefore, the legality and propriety of the initiation of the departmental proceeding which concluded by taking decision of the order of dismissal both have been questioned before the writ court. 13. The learned Single Judge has considered the fact and has come to the conclusion that merely because the show-cause notice was issued while the writ-petitioner was in service, the same cannot be construed to be the initiation of the departmental proceeding. 13. The learned Single Judge has considered the fact and has come to the conclusion that merely because the show-cause notice was issued while the writ-petitioner was in service, the same cannot be construed to be the initiation of the departmental proceeding. Such conclusion has been arrived at on the basis of the fact that while the writ-petitioner was in service no memorandum of charge was issued, therefore, the issue which requires consideration by this Court as to whether merely by issuing show-cause notice against an employee can it be said to be the commencement of the departmental proceeding or the departmental proceeding will be said to have commenced the day when the memorandum of charge has been issued. 14. The law is well settled that the departmental proceeding will be said to have been initiated, the day when the memorandum of charge will be issued as has been held by the Hon’ble Apex Court in the case of State of Andhra Pradesh and Ors. vs. CH. Gandhi reported in (2013) 5 SCC 111 at paragraph 18 which reads as under : “18. It is useful to note here that the charge-sheet was issued on 14-11-2003. In DDA v. H.C. Khurana, a two-Judge Bench posed the question relating to the stage when it can be said that a decision has been taken to initiate the disciplinary proceeding and, in this context, opined that: (SCC p. 201, para 9) “9. … the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision.” 15. Thus, the service of the charge-sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision.” 15. The question of commencement of departmental proceeding merely by issuance of show-cause notice cannot be said to be a correct ground, since, a show-cause notice which is to be issued against a public servant or an employee before any decision being taken by the disciplinary authority for initiation of departmental proceeding and if such show-cause notice is being issued the same will be said to be first show-cause for providing an opportunity to the concerned employee to put forth his defense in order to examine as to whether the allegation basis upon which the departmental proceeding is to be initiated is having any substance or not. If in the circumstance, the show-cause notice is being issued and if the reply which is to be submitted by the concerned employee is found to be satisfactory then there will be no initiation of the departmental proceeding that is the reason the show-cause notice cannot be said to be the commencement of the departmental proceeding, since, on the basis of the show-cause notice if any response will be filed the same is required to be considered in order to examine the case to be fit one for initiation of departmental proceeding. If the disciplinary authority will found the reply to be dissatisfactory then a decision is required to be taken for initiation of departmental proceeding by communicating the same to the concerned employee along with the memorandum of charge and the day when the aforesaid decision along with the memorandum of charge will be issued, it will be said to be the commencement of the departmental proceeding. 16. Learned senior counsel for the appellant has not drawn the attention of this Court by brining on record any regulation of the Bank that the day when the show-cause notice has been issued it will said to be the commencement of the departmental proceeding. Here a reference can be made by taking instance of the provision of Rule 43-B of the Bihar Pension Rules wherein also if it would be seen from its explanation part then it is evident that the departmental proceeding will be said to be initiated, the day when the memorandum of charge will be issued. Here a reference can be made by taking instance of the provision of Rule 43-B of the Bihar Pension Rules wherein also if it would be seen from its explanation part then it is evident that the departmental proceeding will be said to be initiated, the day when the memorandum of charge will be issued. Similar is the provision under the Central Civil Services (Pension) Rules, 1972 (in short “The CCS Rules, 1972”). For ready reference, the provision of Rule 43-B along with explanation of the Bihar Pension Rules and Rule 8 of the CCS Rules, 1972 are being referred herein : Bihar Pension Rules: “43(b) The State Government further reserve to themselves the right of withholding or withdrawing a pension or any part of it, whether permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss caused to Government if the pensioner is found in departmental or judicial proceeding to have been guilty of grave misconduct; or to have caused pecuniary loss to Government by misconduct or negligence, during his service including service rendered on re-employment after retirement: Provided that- (a) such departmental proceedings, if not instituted while the Government servant was on duty either before retirement or during reemployment; (i) shall not be instituted save with the sanction of the State Government; (ii) shall be in respect of an event which took place not more than four years before the institution of such proceedings; and (iii) shall be conducted by such authority and at such place or places as the State Government may direct and in accordance with the procedure applicable to proceedings on which an order of dismissal from service may be made; (b) judicial proceedings, if not instituted while the Government servant was on duty either before retirement or during re-employment, shall have been instituted in accordance with subclause(ii) of clause (a); and (C) the Bihar Public Service Commission, shall be consulted before final orders are passed. Explanation – For the purposes of the rule- (a) departmental proceeding shall be deemed to have been instituted when the charges framed, against the pensioner are issued to him or, if the Government servant has been placed under suspension from an earlier date, on such date; and (b) judicial proceedings shall be deemed to have been instituted:- (i) in the case of criminal proceedings, on the date on which a complaint is made or a charge-sheet is submitted, to a criminal court; and (ii) in the case of civil proceedings, on the date on which the complaint is presented, or as the case may be, an application is made to a civil Court.” Central Civil Service (Pension) Rules, 1972: 8. Pension subject to future good conduct.- (1) (a) Future good conduct shall be an implied condition of every grant of pension and its continuance under these rules. (b) The appointing 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 crime 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 amount of [rupees three hundred and seventy-five] per mensem. (2) Where a pensioner is convicted of a serious crime by a Court of law, action under sub-rule (1) shall be taken in the light of the judgment of the Court relating to such conviction. (3) In a case not falling under sub-rule (2), if the authority referred to in subrule (1) considers that the pensioner is prima facie guilty of grave misconduct, it shall before passing an order under sub-rule (1)- (a) serve upon the pensioner a notice specifying the action proposed to be taken against him and the ground on which it is proposed to be taken and calling upon him to submit within fifteen days of the receipt of the notice or such further time not exceeding fifteen days as may be allowed by the [appointment authority] such representation as he may wish to make against the proposal; and (b) take into consideration the representation, if any, submitted by the pensioner under clause (a). (3-A) (a) Without prejudice to the provisions of sub-rule (3), no Government servant who having worked in any Intelligence or Security related Organization included in the Second Schedule to the Right to Information Act, 2005, shall, without prior clearance from the Head of the Department in the aforesaid Organizations, makes any publication after retirement of any material relating to sensitive information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, the security, strategic, scientific, or economic interests of the State, or relation with a foreign State, or which would lead to incitement of an offence; (b) The Government servants who have worked in any Intelligence or Security related Organization included in the Second Schedule to the Right of Information Act, 2005, shall give an undertaking in regard to the above restriction in FORM 26 appended to these rules and any failure to observe such an undertaking on the part of the retired Government servants shall be treated as grave misconduct under this rule.] (4) Where the authority competent to pass an order under sub-rule (1) is the President, the Union Public Service Commission shall be consulted before the order is passed. (5) An appeal against an order under sub-Rule (1), passed by any authority other than the President, shall lie to the President and the President shall, in consultation with the Union Public Service Commission, pass such orders on the appeal as he deems fit. Explanation.-In this rule,- (a) the expression 'serious crime' includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923); (b) the expression 'grave misconduct' includes the communication of disclosure of any secret official code or pass word or any sketch, plan, model, article, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923 (19 of 1923) (which was obtained while holding office under the Government) so as to prejudicially affect the interests of the general public or the security of the State. (c) The expression "publication" includes communication to the press or electronic media or publish or publication of any book, letter, pamphlet, poster or other document, in any form. (c) The expression "publication" includes communication to the press or electronic media or publish or publication of any book, letter, pamphlet, poster or other document, in any form. (d) The expression "information includes any material in any form including records, documents, memos, e-mails, opinion, advice, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models and data material in any electronic form held or accessed by the Government servant while in serving.] 17. These provision are only supplement to suggest that what would be the relevant date for initiation of the departmental proceeding. If any regulation would have been produced by the appellant—bank contrary to the aforesaid proposition, then the matter would have been different but no such regulation contrary to the aforesaid has been produced before this Court, therefore, according to our considered view, the contention which has been raised that merely because the show-cause notice has been issued, it will be said to be the commencement of the departmental proceeding, is having no substance. Since the relevant date of departmental proceeding will be said to be the date when the memorandum of charge has been issued, therefore, the fact of the given case is to be considered in the light of the aforesaid proposition. Here the admitted fact is that the memorandum of charge was issued on 6th May, 2016 while the writ-petitioner has already superannuated from service on 31st January, 2016. There is no order having been passed by the appellant-bank in the light of the provision of Regulation 45(3) of the Regulations, 2010 and there cannot be any order, since, there was no departmental proceeding while the writ-petitioner was in service and that is the reason no such decision was taken by the authority, rather, the writ-petitioner (deceased) was allowed to be superannuated from service w.e.f. 31st January, 2016. 18. The question now would be when the writ-petitioner (deceased) has already been superannuated from service w.e.f. 31st January, 2016 then as per the Regulation 45 of the Regulations, 2010, appellant-bank will have no jurisdiction to deal with the writ-petitioner by initiating a departmental proceeding under the Conduct, Discipline and Appeal Rules but herein the disciplinary proceeding has been initiated even though the writ-petitioner was allowed to be superannuated from service w.e.f. 31st January, 2016, therefore, the initiation of departmental proceeding according to our considered view to be said to be without jurisdiction. The question of jurisdiction is the paramount and it is settled position of law that if any decision has been taken without any authority of law, such decision will be said to be without jurisdiction. 19. Herein also in the facts of the given case that even though the writ-petitioner was allowed to be superannuated from service w.e.f. 31st January, 2016 but he has been dealt with under the conduct rule and, therefore, the entire departmental proceeding if in such circumstances has been held to be illegal by the learned Single Judge, according to our considered view, the same cannot said to suffer from an error. 20. This Court after having come to the aforesaid conclusive finding as per the discussion made hereinabove and coming back to the order passed by the learned Single Judge has found from that the learned Single Judge has considered the very fact of initiation of departmental proceeding by taking into consideration its commencement, the day when the memorandum of charge will be issued. Since the memorandum of charge was issued on 6th May, 2016, the day when the writ-petitioner was already been superannuated from service that is w.e.f. 31st January, 2016 and in that pretext the entire departmental proceeding has been said to be nullity in the eyes of law. 21. The learned Single Judge has also considered that the order of dismissal since was passed on the basis of the departmental proceeding which was initiated having held to be without jurisdiction and bias as per the discussions made hereinabove and it is the settled proposition of law that if the very foundation will go the subsequent result will be nullity in the eyes of law. The learned Single Judge has taken into consideration the aforesaid aspect of the matter and by holding the departmental proceeding to be illegal has also come to the conclusion by interfering with the order of dismissal by quashing and setting it aside. 22. It has been informed that the order passed by this Court regarding disbursement of post retiral benefit has been complied with. 23. Be that as it may, since, we are on merit, therefore as per the discussion made hereinabove, we are of the view that the order passed by the learned Single Judge suffers from no error. 24. Accordingly, the instant intra court appeal fails and dismissed. 25. 23. Be that as it may, since, we are on merit, therefore as per the discussion made hereinabove, we are of the view that the order passed by the learned Single Judge suffers from no error. 24. Accordingly, the instant intra court appeal fails and dismissed. 25. Pending interlocutory application(s), if any, also stands disposed of.