Vijay Kewalramji Randive vs The Chairman And Competent ...
2016 Latest Caselaw 5023 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                           
                               NAGPUR BENCH : NAGPUR




                                                   
                              Writ Petition No.2591/2016
                                           ...


    Vijay Kewalramji Randive,




                                                  
    aged 60 years,
    Occupation: Retired,
    Resident of Plot No.19,
    Mahakali Nagar No.3,
    Manewada, Nagpur.                             ..             PETITIONER




                                               
                              ig   .. Versus ..


    1. The Chairman & Competent Authority
                            
       Vidharbha Kokan Gramin Bank,
       having its Head Office at
       Chandraprastha, Plot No. 6,
       2nd and 3rd Floor, Deendayal Nagar,
       Ring Road, Nagpur -22.
      


    2. The General Manager, Vidharbha
   



       Konkan Gramin Bank, having its
       Head Office at "Chandraprastha",
       Plot No.6, 2nd and 3rd Floor,
       Deendayal Nagar, Ring Road,





       Nagpur -22.                                ..         RESPONDENTS


    Mr. Anand Parchure, Advocate for Petitioner.
    Mr. A.T. Purohit, Advocate for Respondents.





                                   ....


                  CORAM : B.R. Gavai & V.M. Deshpande, JJ.

DATED : August 29, 2016.

ORAL JUDGMENT (per B.R. Gavai, J. )

1. Rule. Rule made returnable forthwith. Heard finally by

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consent of learned counsel appearing for the parties.

2. The petitioner has approached this Court being

aggrieved by the charge-sheet dated 21.04.2016 thereby informing

the petitioner about the charges levelled against him.

3. The facts are not in dispute. The petitioner was in

employment of the respondents. The petitioner was issued with a

show cause notice on 8.3.2016. The petitioner replied to the same

on 22.3.2016. However, a communication was addressed to the

petitioner on 31.03.2016 informing him that since he would stand

retired on 31.03.2016, the provisions of sub-clauses (3) and (4) of

Clause 45 of Vidarbha Konkan Gramin Bank (Officers and

Employees) Service Regulations, 2013 (hereinafter referred to as

the "said Regulations") are invoked against him. Subsequently a

charge-sheet came to be issued to the petitioner on 21.04.2016. It

could thus be clearly seen that though the show cause was issued

to the petitioner prior to the date on which he was superannuated

i.e. on 31.03.2016, a charge-sheet was issued to him only on

21.04.2016.

4. Mr. Anand Parchure, learned counsel appearing on behalf

of the petitioner submits that since the petitioner stood retired on

31.03.2016 and since the charge-sheet was issued to the petitioner

on 21.04.2016, in view of sub-clauses (3) and (4) of Clause 45 of

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the said Regulations the departmental proceedings are not

permissible in law.

5. It is the contention of the respondent-Bank that since the

show cause notice was issued to the petitioner prior to the date on

which he was superannuated and since on the date on which he

was superannuated the provisions of sub-clause (3) of Clause 45 of

the said Regulations were already invoked, the departmental

proceedings are very much permissible in law.

6. We find that the issue is no more res integra. In the case

of UCO Bank and another .vs. Rajinder Lal Capoor reported in

AIR 2007 Supreme Court 2129(1), Their Lordships of the Apex

Court had an occasion to consider a clause which is analogous to

Clause 45 (3) of Vidarbha Konkan Gramin Bank (Officers and

Employees) Service Regulations, 2013.

7. It will be relevant to refer to the clause which fell for

consideration before Their Lordships i.e. Regulation 20 (3)(iii) of

UCO Bank Officer Employees' Service Regulations, 1979

(hereinafter referred to as "UCO Bank Regulations") which reads

thus:-

"The Officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceeding will continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof. The

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concerned officer will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of

retirement benefits till the proceedings are completed and final order is passed thereon

except his own contributions to CPF."

It will also be relevant to refer to the provision which is sought to

be made applicable to the present petitioner by the respondent-

Bank. The relevant provision of the said Regulations which could

be found at Annexure-D i.e. communication addressed by the

respondent-Bank to the petitioner reads thus:-

"Section 45(3):- The officer or employee against whom disciplinary proceeding has been initiated

shall cease to be in service on the date of superannuation but the disciplinary proceedings shall continue as if he was in service until the proceedings are concluded and final order passed in respect thereof."

8. It could thus be seen that both the provisions are almost

analogous. In both the provisions, it is stated that an employee

against whom the disciplinary proceedings have been initiated, will

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.

9. The second part of Regulation 20(3) of UCO Bank

Regulations could be found in sub-clause (4) of Regulation No.45

which reads thus:-

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"(4). The officer or employee against whom disciplinary proceeding has been initiated shall not receive any pay and/or allowance 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)."

10. It could thus be seen that identical provisions are

contained in both the regulations, the one which fell for

consideration before Their Lordships of the Apex Court and the one

which falls for consideration before us.

considering the case before them insofar as the UCO Bank Their Lordships while

Regulations is concerned, have held thus:-

"21. The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the

respondent's ceases to be in service. The terminologies used therein are of seminal

importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the

basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached

his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a

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chargesheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a

preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the

Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :

"13. It is not the case of the appellants

that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars

that a chargesheet was likely to be issued on the basis of a preliminary

enquiry held in that behalf or otherwise.

14. The circular letters issued by the appellants put restrictions on a valuable

right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be

satisfied before any action can be taken in that regard."

It was further more observed that :

"20. A departmental proceeding is

ordinarily said to be initiated only when a chargesheet is issued."

(See also Union of India v. Sangram Keshari Nayak 2007 (6) SCALE 348)

22. Respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the chargesheet, the enquiry report and the orders of punishment passed by the Disciplinary Authority and the Appellate Authority must be held to be illegal and without jurisdiction.

23. An order of dismissal or removal from service

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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 in that behalf. As Regulation 20 is not applicable

in the case of the respondent, we have no other option but to hold that the entire proceeding initiated against the respondent became vitiated in law."

11. It could thus be seen that Their Lordships have

specifically rejected the contention of the Bank that the

departmental proceedings stand initiated upon issuance of the

show cause notice. It has been categorically held by relying upon

the earlier pronouncements of the Apex Court that date of

application of mind on the allegations levelled against an officer by

the competent authority as a result whereof a charge-sheet is

issued, would be the date on which the disciplinary proceedings are

said to have been initiated and not prior thereto. It has been

categorically held that the pendency of a preliminary enquiry,

therefore, by itself cannot be a ground for invoking Clause 20 of

the Regulations.

12. It could be clearly seen from the aforesaid

pronouncement of Their Lordships that 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 in that behalf. The respondents have not been

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in a position to point out any rule which permits them to do so.

13. It appears that UCO Bank applied for the review of the

said judgment. While considering the review application of the

UCO Bank, in a judgment reported in AIR 2008 Supreme Court

1831, Their Lordships observed thus:-

"22. Drawing up of a charge sheet, therefore, is the condition precedent for initiation of a disciplinary proceedings. We have noticed in

paragraph 15 of our judgment that ordinarily no disciplinary proceedings can be continued in

absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceedings despite the officers

reaching the age of superannuation must be a statutory rule. A' fortiori it must be a rule applicable to a disciplinary proceedings.

23. There cannot be any doubt whatsoever that

the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the

same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental

proceeding has been initiated.

24. Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been

applied by this Court in the main judgment."

14. It could thus be seen that Their Lordships have reiterated

that drawing up of a charge sheet is the condition precedent for

initiation of a disciplinary proceedings. It has been further held

that in absence of the statutory rules operating in the field,

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resorting to a preliminary enquiry would not by itself be enough to

hold that a departmental proceeding has been initiated.

15. In that view of the matter, when the case is squarely

covered by the two pronouncements of the Apex Court, we have

no other option but to allow the petition.

16. Rule is, therefore, made absolute by quashing and

setting aside the departmental proceedings initiated against the

petitioner including the charge-sheet dated 21.04.2016. Needless

to state that the terminal benefits of the petitioner including

pension etc. shall be released to the petitioner within a period of

one month from today. In the facts and circumstance of the case,

no order as to costs.

(V.M. Deshpande, J. ) (B.R. Gavai, J.) ...

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