Vijay Kamalakant Patkar vs State Bank Of India And Anr.
2004 Latest Caselaw 753 Bom

JUDGMENT

Rebello F.I., J.

1. It is not necessary for us to set out in detail the pleadings as set out in the petition and the reply. It will be sufficient to set out only those facts which are necessary to dispose of the petition considering the reliefs prayed for in the petition.

2. The petitioner joined the services of the respondent No. 1 as a Clerk on 1st May, 1957. On 24th August, 1984 the respondent No. 1 granted the petitioner extension of service for a period of 5 years with effect from 1st May, 1984, upon the petitioner completing the age of 50 years. It is the case of the petitioner that he gave his consent and accepted the extension granted. On 5th February, 1985 the respondent No. 1 placed the petitioner under suspension on alleged ground of irregularity. A charge-sheet was thereafter issued on 4th July, 1986. Thereafter there are various intervening circumstances which need not be adverted to, including various proceedings filed before this Court and the interim reliefs passed therein, The respondent No. 1 took a decision on 24th April, 1989 extending the period of employment of the petitioner for one more year between 24th April, 1989 to 23rd April, 1990. This was communicated to the petitioner some time in July, 1989. Once again the respondent No. 1 by a decision of 13th January, 1990 decided to grant one more year's extension to the petitioner from 24th April, 1990 to 23rd April, 1991. A similar decision was taken on 6th November, 1990 to extend it by one more year from 24th April, 1991 to 23rd April, 1992. By letter dated 23rd March, 1992 the respondent informed the petitioner that the petitioner had attained the age of superannuation of 58 years of age on 23rd April, 1992 as per the existing service Rules and as the enquiry is ordered against the petitioner pursuant to issuance of charge-sheet and as the enquiry is not likely to be concluded, the Managing Director had directed that the petitioner be continued in service till the conclusion of disciplinary proceedings instituted against the petitioner even after the petitioner ceases to be in the bank's service on attaining the age of superannuation. However, the petitioner shall be deemed to be in service only for the purpose of continuance and conclusion of the case.

3. On behalf of the petitioner the continuation of the disciplinary proceedings has been challenged, principally on the following grounds:-

(i) Considering Regulation 19(1) of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979, hereinafter referred to as the Regulations, the respondents could not have unilaterally extended the age of retirement of the petitioner;

(ii) Even assuming that it could have been so done, the order of extension had to be communicated before the petitioner retired from service. Merely taking decision is of no consequences. In the instant case the decision to extend the petitioner's employment though taken earlier was communicated to the petitioner in July, 1989. It is this date of communication which is relevant. By that date as the petitioner was not informed that his services had been extend he is deemed to have been relieved from the service on the extended period of 5 years coming to an end.

(iii) Lastly it is submitted that even if the respondents could have extended the period it could have been done before the expiry of the last date of the extended period. The last date of the extended period was 23rd April, 1989 and the same was extended only on 24th April, 1989. The learned Counsel, therefore, contends that reliefs as sought for in the petition should be granted. Reliance is placed on the judgment of the Apex Court in the case of State of Assam and Ors. v. Padma Ram Borah, to contend that after the period of service which came to an end, merely because the States Government made an order extending the services of the petitioner after a month after the last extension the State Government would have no jurisdiction to do so. Reliance is also placed on the judgment in the case of State of Punjab v. Khemi Ram, to point out that mere making of an order is not sufficient. It has to be issued. In the instant case though the orders have been made on 24th April, 1989 it was communicated much after the petitioner had already retired from the service and considering the ratio of the aforesaid judgment such a communication would not extend the service of the petitioner.

On behalf of the respondents it was pointed out that as a grievance had been made that, the authority under Regulation 19(3) had not taken decision they were producing the minutes of the order and have placed the same before the Court. It is also pointed out that the fact that the Managing Director had taken the decision was intimated to the petitioner by letter of 23rd March, 1992 which is annexed to the petition.

4. For the purpose of deciding the issues it would be necessary to reproduce Regulation 19, which reads as under:-

" 19: (1) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty years' service or thirty years' pensionable service if he is a member of the Pension Fund, whichever occurs first.

Provided that the Competent Authority may, at its discretion, extend the period of service of an officer who has attained the age of thirty-eight years or has completed thirty years' service or thirty years' pensionable service as the case may be, should such extension be deemed desirable in the interest of the Bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension.

Provided further that an officer may, at the discretion of the Executive Committee, be retired from the Bank's service after he has attained 50 years of age or has completed 25 years' service or 25 years' pensionable service as the case may be, by giving him three months' notice in writing or pay in lieu thereof.

Provided further that an officer who has completed 25 years' service or 25 years' pensionable service, as the case may be, may be permitted by the Executive Committee to retire from the bank's service, subject to his giving three months' notice in writing or pay in lieu, thereof unless this requirement is wholly or partly waived.

Provided further that an Officer who has completed 20 years of service or 20 years pensionable service as the case may be, may be permitted by the E.C. to retire from the Bank's service subject to his giving 3 months' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived.

(2) Notwithstanding anything to the contrary in this order, no officer who has ceased a to be in the Bank's service by the operation of, or by virtue of, any provision shall be deemed to have retired from the Bank's service for the purpose of the Imperial Bank of India Employees' Pension and Guarantee Fund Rules one the State Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said Pension Fund Rules as may be applicable to him.

(3) In case disciplinary proceedings under the relevant Rules of service have been initiated against an officer before he ceases to be in the Bank's service by the operation of, or by virtue of, any of the said Rules or the provisions of this order, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said Rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings.

Explanation:- An officer will retire on the last day of the month in which he completes the stipulated service or age of retirement."

5. We may now deal with the contentions as raised on behalf of the petitioner. The first contention as noted earlier is that the respondent could not have unilaterally extended the service of the petitioner. It could only have been done with the consent of the petitioner.

A perusal of Regulation 19(1) would show the various situations under which an employee stands superannuated. It could be on attaining the age of 58 years, upon the completion of 30 years of service or 30 years pensionable service, if he is a member of the Pension Fund, whichever occurs first. In other words in so far as the retirement is concerned neither the employee nor the employer excluding the proviso can extend the service or continue an employees in service. By operation of law the services of the employees would come to an end without any further action either on the part of the petitioner or respondent. The first proviso to Regulation 19 however, provides that the Competent Authority may at its discretion extend the period of service of an officer in the three situations earlier referred to. If the Competent Authority holds that such extension be deemed desirable in the interest of the bank. The position is that this can be only in respect of an employee in service. A power has been conferred on the employer if they find that the services of the employee are required in the interest of the bank then to retain such an employee subject to what is set out in the proviso. There is no requirement of taking consent or seeking approval of the employee while exercising the powers under the proviso. These are part of the conditions of service which the officer/employee is bound to observe when he enters the service. His entering the service is subject to these terms and conditions which includes, the condition that his services can be continued. It is, therefore, clear that this is not a case which depends on voluntariness of the employee. It is in the sole discretion of the employer. If that be so, the first contention as raised on behalf of the petitioner must be rejected.

6. We may now deal with the contention that merely making an order of extending the service is not sufficient. It is the date of communication which is relevant and if the date of communication is after the expiry of the last date of retirement then the employee is deemed to be no longer in service. Firstly let us advert to the judgment in the case of State of Punjab v. Khemi Ram(supra) to consider whether that is of any assistance in so far as the petitioner herein is concerned. In that case what was under consideration was' the provisions of the Punjab Civil Services (Punishment and Appeal) Rules, 1952, The issue was as to when the order of suspension would come into effect. The Apex Court held that it would be from the date of communication considering the Rules as they stand. Even otherwise the employee to be suspended must be communicated the order of suspension. We are dealing with a case of a person in service and his service can be extended pursuant to the first proviso to Regulation 19 (1) of the Regulations. A reading of the said Regulation would show that what is material is not the communication, but decision to extend as long as the employee is in service and the decision is taken before the employee superannuates. In that event the date of communication would be immaterial. The date of communication in such cases, is only to intimate to the employee the decision which has already been taken. The employee would not superannuate under Regulation 19 (1) in view of the decision already taken pursuant to the proviso. Therefore, a conjoint reading of Regulation 19(1) with the proviso and a harmonious construction thereof must lead to the conclusion that the employer before superannuation of the employee/officer, if it decides to extend the services, then it is the date of taking the decision that would be the relevant date. In the instant case, therefore, the fact that the decision of 24th April, 1989 was communicated in June, 1989 is of no consequences. Whether the petitioner stood superannuated on 23rd April, 1989 or 24th April, 1989 will be the next point which will have to be considered,

7. The last point which we have to decide is whether considering the record which admittedly shows that the final decision to extend the petitioner's services was taken on 24th April, 1989, the last extension would come to an end on 23rd April, 1989. In these circumstances, whether it can be said that the action of the respondents in extending the period of service was legal or that the petitioner had already superannuated by then. Also whether the explanation to Regulation 19 would only cover the cases covered by Regulation 19(1) and not to the extended period as provided by the 1st proviso to Regulation 19(1). A bare reading of explanation would make it clear that even though the petitioner may reach the age of 58 or completing the 30 years of service or 30 years of pensionable service in the course of the month pursuant to the extension he will retire only on the end of the month by a deeming fiction. The situation contemplated under Regulation 19(1) will happen at the end of the month. If that be the case the decision having been taken on 24th April, 1989 the petitioner would have superannuated on 30th April, 1989, The decision, therefore, was taken within the period when the employee was in service.

A submission was made that this would apply only to the initial period and not to the extended period. We see no reason as to why the explanation provided in the proviso has to be read differently. The explanation is not only to Regulation 19(1) but also to the proviso. There is nothing to show otherwise. In other words, in all cases of superannuation as set out therein the retirement date on completion of the stipulated service, would be the last date of the month which would include the stipulated service. That contention must therefore, be rejected.

8. We are therefore, of the considered opinion that is there no merit in the petition. Rule discharged. There shall be no order as to posts.