Bombay High Court
Ashok Kumar Gupta vs Bank Of Baroda (Disciplinary ... on 20 January, 2025
Author: Bharati Dangre
Bench: Bharati Dangre
2025:BHC-OS:1853-DB Digitally signed
by ARUNA
ARUNA SANDEEP
SANDEEP TALWALKAR
TALWALKAR Date:
2025.02.06
19:57:54 +0530
42.WP3139.2022.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 3139 OF 2022
Ashok Kumar Gupta
s/o Shri Bajrang Prashad,
150, Narmada Apartment, Alaknanda,
Opp. Don Bosco School,
Kalkaji, New Delhi -110019. ... Petitioner
Versus
1. Bank of Baroda
Through Managing Director & CEO
(Disciplinary Authority),
Baroda Corporate Centre,
C-26, G Block, Bandra-Kurla Complex,
Bandra East, Mumbai-400051.
2. Bank of Baroda.
(Through Committee of Directors),
(Appellate Authority),
Baroda Corporate Centre,
C-26, G Block, Bandra-Kurla Complex,
Bandra East, Mumbai-400051. ... Respondents.
****
Mr. Pankaj Jain a/w. Ms. Tejashree Kamble, Mr. Pradeep Purohit
i/b. P.D. Jain & Co., for Petitioner.
Mr. Sudhir Talsania, Sr. Advocate i/b. Mr. V.M. Parkar, for
Respondents.
****
Talwalkar 1
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42.WP3139.2022.odt
CORAM: BHARATI DANGRE &
ASHWIN D. BHOBE, JJ.
DATED : 20th JANUARY, 2025
JUDGMENT (PER ASHWIN D. BHOBE, J)
1. Rule. By consent of the respective counsel representing
the parties, Rule is made returnable forthwith. Petition is taken up
for hearing.
2. By the present Petition, the Petitioner assails the
orders dated 15.05.2019 passed by the Disciplinary Authority,
imposing penalty of dismissal from service and the Order dated
30.12.2020 passed by the Respondent No. 2- Appellate Authority
dismissing the Petitioner's Appeal against the penalty order .
Grievance of the Petitioner essentially is against the act
of the Respondent No. 1 in initiating disciplinary proceedings
against the Petitioner almost after two years of the Petitioner
having superannuated from service.
3. FACTUAL MATRIX :
(a) Petitioner had joined the Respondent Bank on the post
of Officer grade(JMG-I).
(b) Petitioner during the course of his service, reached the
42.WP3139.2022.odt
level of General Manager(GM-Top Management Grade-VII).
(c) Just prior to the date of superannuation, the Petitioner
was issued a Notice dated 09.03.2012, alleging
irregularities/lapses, thereby calling for his explanation.
(d) Notice dated 09.03.2012 was followed by Show Cause
Notice dated 18.05.2012 calling upon the Petitioner to show cause
as to why the disciplinary proceedings should not be initiated
against the Petitioner.
(e) Petitioner superannuated on 31.05.2012.
(f) Respondent No. 1, by letter dated 31.05.2012
informed the Petitioner that in terms of Regulation 20(3)(iii) of
Bank of Baroda (Officers) Service Regulation 1979, pending
initiation and completion of Inquiry proceedings and passing Final
orders by the Disciplinary Authority, Petitioner shall not retire from
service but shall cease to be in service of the bank w.e.f.
31.05.2012.
(g) Articles of Charge was issued on 19.04.2014.
(h) Petitioner contested the said proceedings.
(i) Disciplinary Authority submitted its Inquiry Report on
42.WP3139.2022.odt
24.11.2017, concluding that nine out of the ten charges against
the Petitioner were proved.
(j) By Order of Penalty dated 15.05.2019, penalty of
dismissal of service which shall ordinarily be disqualification for
future employment, was imposed on the Petitioner.
(k) Petitioner feeling aggrieved preferred an appeal in
terms of the Regulations, before the Respondent No.2.
(l) Respondent No.2 dismissed the Appeal buy its order
dated 30.12.2020.
4. In the present Petition, the Petitioner has sought for
the following substantial relief:
"1. Issue a writ of Certiorarified Mandamus to call for records
in connection with impugned order dated 30/12/2020,(Exhibit -
N) and quash the same and consequently also quash the order
dated 15/05/2019 (Exhibit-L) and the petitioner be provided
with all consequential benefits."
5. On 02.12.2022, this Court made the following
observations:
"1. We are, prima facie, satisfied that disciplinary
proceedings by issuance of charge-sheet not having been
initiated while the petitioner was in service and till his
retirement on superannuation on 31st May 2012, disciplinary
proceedings could not have been initiated by the charge-sheet
42.WP3139.2022.odt
memorandum dated 19th April 2014.
2. Issue notice to the respondent, returnable on 24th
January 2023."
6. Respondents have filed affidavit in reply dated
05.04.2024 and has opposed the petition on the ground that by
letter dated 31.05.2012 the Petitioner was informed that the
Competent Authority had taken a decision to continue with the
inquiry, in terms of Regulation 20(3)(iii) of "Bank of Baroda
Officers Employees (Service) Regulations 1979 ("Officers Service
Regulations"), and accordingly the Petitioner would continue as if
he was in service until the proceedings are concluded and final
order is passed in respect thereof. Respondents contend that the
Petitioner responded to the show cause notice, even participated in
the inquiry proceedings without any demur or any protest.
According to the Respondents, issuance of the charge-sheet on
19.04.2014 would not vitiate the disciplinary proceedings as the
inquiry was commenced by issuance of notice dated 09.03.2012
and show-cause notice dated 18.05.2012. Respondents further
contend that the order of penalty dated 15-05-2019 was passed
after a detailed inquiry. Further, the appeal preferred by the
Petitioner against the said order of penalty, was dismissed after
42.WP3139.2022.odt
considering all the contentions raised by the Petitioner.
Respondents have also raised an contention of delay and latches in
filing the Petition.
7. Mr. Pankaj Jain, learned Counsel on behalf the
Petitioner, has advanced the following arguments:
(a) Petitioner retired from service upon attaining the age
of superannuation i.e. 31.05.2012. Relying on the service
condition governing the Petitioner viz. Officers Service
Regulations, he submits that the disciplinary proceedings initiated
and continued against the Petitioner after 31.05.2012 are without
jurisdiction, not competent and consequently the order of penalty
is illegal.
(b) Regulation 20(3) (iii) of the Officers Service
Regulations, mandate, that officer against whom disciplinary
proceedings have been initiated will cease to be in service on the
date of superannuation. Contention of the Petitioner is that the
said Regulation could have been invoked only when Disciplinary
proceedings had been initiated prior to 31.05.2012. According to
the Petitioner Disciplinary proceedings would commence upon
issuance of charge sheet and not on the basis of the show cause
42.WP3139.2022.odt
notice. Charge sheet was issued to the Petitioner on 19.04.2014,
i.e. after two years of his superannuation, thus the entire
disciplinary proceedings, inquiry report and the order of penalty
stands vitiated.
8. On the other hand Mr. Sudhir Talsania, learned Senior
Counsel for the Respondents, has advanced the following
arguments :
(a) Disciplinary proceedings were commenced against the
Petitioner by issuance of show cause notice dated 09.03.2012 and
18.03.2012. Contention is that although the Petitioner retired on
31.05.2012, the Respondent No. 1 by its letter dated 31.05.2012
had notified the Petitioner that though the Petitioner was due to
retire on the said date the competent authority had decided to
continue with the inquiry after superannuation. Disciplinary
proceedings, thus according to the Respondents was competent.
(b) Relying on Regulation 20(3) (iii) of the Officers
Service Regulations, Respondents contend that the Petitioner
would continue in as if he was in service for the purpose of
disciplinary proceedings until the proceedings were concluded and
42.WP3139.2022.odt
final order was passed. According to the Respondent, the said
Regulation confer jurisdiction to continue with the disciplinary
proceedings, as show cause notices were issued on 09.03.2012 and
18.03.2012.
(c) Charge-sheet was issued on 19.04.2014, the Petitioner
participated in the said inquiry proceedings without demur and
protest, which proceedings finally culminated in issuance of the
order of penalty.
(d) Appeal preferred by the Petitioner against the order of
penalty dated 15.05.2019 was also dismissed.
9. Controversy revolves around Regulation 20(3) (iii) of
Officers Service Regulations, which Regulation is transcribed
herein below:
"(iii) The officer against whom disciplinary proceedings have
been initiated will cease to be in service on the date of
superannuation but the disciplinary proceedings will continue as
if he was in service until the proceedings are concluded and final
order is passed in respect thereof. The 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."
42.WP3139.2022.odt
10. The questions that fall for consideration is whether the
Respondent No. 1 could have initiated and/or continued with the
disciplinary proceedings against the Petitioner after he having
attained the age of superannuation w.e.f. 31.05.2012.
ANALYSIS:
11. Service conditions governing the Petitioner are the
Officers Service Regulations.
As per Regulation 19(1) of Officers Service
Regulations, an officer of the Respondent Bank shall retire upon
attaining the age of retirement and accordingly, the Petitioner was
retired upon attaining the age of superannuation on 31.05.2012.
Regulation 20(3)(iii) of the Officers Service
Regulations provides for eventuality i.e. the officer against whom
disciplinary proceedings have been initiated will cease to be in
service on the date of superannuation, but the disciplinary
proceedings will continue as if he was in service until the
proceedings are concluded and final order is passed in respect
thereof.
Question, thus is whether the disciplinary proceedings
42.WP3139.2022.odt
against the Petitioner commenced upon issuance of show cause
notice/s dated 09.03.2012 and 18.05.2012 or upon issuance of the
Charge sheet dated 19.04.2014 ?
12. The issue as raised in the present Petition is no more
res integra.
The Hon'ble Supreme Court in the case of UCO Bank &
Anr. vs. Rajinder Lal Capoor1 was dealing with an identical
situation like the case in hand. In the said case, the Rajinder Lal
Capoor (employee) working as a Branch Manager, UCO Bank
(employer) was allowed to superannuate on 01.11.1996. Charge-
sheet was issued to the said employee on 13.11.1998. Inquiry
Officer vide report dated 13.09.1999 held the charges against the
said employee to have been proved. Disciplinary Authority vide
order dated 27.09.1999 imposed penalty of removal from service.
Appeal filed by the said employee was dismissed by the Appellate
Authority on 01.12.2000.
The Writ Petition filed by the said employee before the
High Court of Punjab and Haryana praying for quashing of charge-
sheet dated 13.09.1999 was allowed as it was held that imposition
1 (2007) 6 SCC 694
42.WP3139.2022.odt
of the said penalty after the employee attain the age of
superannuation would not be proper. Letters Patent Appeal filed by
the employer was dismissed. The employer bank unsuccessfully
questioned the said decision before the Hon'ble Supreme Court.
Subject matter in the case UCO Bank (supra) was an
identical Regulation 20(3)(iii) of the UCO Bank Officer Employees'
Services Regulations, 1979 governing the service conditions in
Rajinder Lal Capoor was similar and in fact identical to the case of
the Petitioner herein.
14. The Hon'ble Supreme Court while dismissing the Civil
Appeal filed by UCO Bank, in paragraphs 18 to 22 has held as
under :
"18. The fact that charge-sheet was issued only on 13-11-1998 is
not in dispute. It also stands admitted that the respondent
attained the age of superannuation on or before 1-11-1996.
Disciplinary proceedings admittedly were initiated against the
respondent in terms of Regulation 20(3)(iii) of the UCO Bank
Officer Employees' Services Regulations, 1979 which reads as
under:
"20. (3)(iii) The officer against whom disciplinary
proceedings have been initiated will cease to be in service
on the date of superannuation but the disciplinary
proceedings will continue as if he was in service until the
proceedings are concluded and final order is passed in
respect thereof. The officer concerned will not receive any
pay and/or allowance after the date of superannuation.
42.WP3139.2022.odt
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."
19. A bare perusal of the said provision would clearly show
that by reason thereof a legal fiction has been created. We are
not oblivious of the . legal principle that a legal fiction must be
given full effect but it is equally well-settled that the scope and
ambit of a legal fiction should be confined to the object and
purport for which the same has been created.
20. In Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. it was
observed: (SCC p. 546, para 47)
"47[46]. Legal fiction, it is well settled, must be construed
having regard to the purport of the statute. (See Sadashiv
Dada Patil v. Purushottam Onkar Patil'; M.P. SEB v. Union
of Indias; Maruti Udyog Ltd. v. Ram Lal; Bharat Petroleum
Corpn. Lid. v. P. Kesavan 10)"
21. The aforementioned Regulation, however, could be invoked
only when the disciplinary proceedings had clearly been
initiated prior to the respondent's ceasing to be in service. The
terminologies used therein are of 9 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 charge-sheet is issued (see Union of India
v. K.V. Jankiraman¹¹). This aspect of the matter has also been
considered by this Court recently in Coal India Ltd. v. Saroj
Kumar Mishra 12 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 charge-sheet is issued
would be the date on which the disciplinary proceedings are said
to have been initiated and not prior thereto. Pendency of a
preliminary enquiry, therefore, by itself cannot be a ground for
42.WP3139.2022.odt
invoking Clause 20 of the Regulations. Albeit in a different fact
situation but involving a similar question of law in Coal India
Ltd. 12 this Court held: (SCC p. 631, paras 12-13)
"12[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 charge-sheet was likely to be issued on the
basis of a preliminary enquiry held in that behalf or
otherwise.
13[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 furthermore observed that: (SCC p. 632, рага 18)
"18[20]. A departmental proceeding is ordinarily said to
be initiated only when a charge-sheet is issued."
(See also Union of India v. Sangram Keshari Nayak13.)
22. The 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 charge-
sheet, 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."
15. The UCO Bank (supra) was referred by the Hon'ble
Supreme Court in its subsequent decision in the case of State Bank
of India & Ors. vs. Navin Kumar Sinha2. In paragraph 30 and 31
the Hon'ble Supreme Court held as below:
2 2024 SCC OnLine SC 3369
42.WP3139.2022.odt
30 Disciplinary proceeding against the respondent was not
initiated on 18 08 2009 when the first notice to show cause was
issued but was initiated only on 18.03 2011 when the
disciplinary authority issued the charge memo to the
respondent.
31 As has been held by this Court on more than one
occasion, a subsisting disciplinary proceeding one initiated
before superannuation of the delinquent officer may be
continued post superannuation by creating a legal fiction of
continuance of service of the delinquent officer for the purpose
of conclusion of the disciplinary proceeding (in this case as per
Rule 19(3) of the Service Rules) But no disciplinary proceeding
can be initiated after the delinquent employee or officer retires
from service on attaining the age of superannuation or after the
extended period of service.
16. The proposition of law flowing from the decision of the
Apex Court in the case of UCO Bank(supra) and State Bank of
India (supra) are squarely attracted to the case in hand.
The disciplinary proceedings against the Petitioner
having being commenced by issuance of the charge-sheet dated
19.04.2014, i.e. almost after two years of the Petitioner having
retired, was not permissible. The contentions of the Respondent
that the disciplinary proceeding commenced upon the issuance of
the show-cause notice dated 09.03.2012 and 18.05.2012, is hereby
rejected.
17. In the wake of the above, and by applying the law in
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the case of UCO Bank(supra) and State Bank of India (supra), we
hold that the disciplinary proceedings, including the charge-sheet
dated 19.04.2012, enquiry report dated 24.11.2017, the order of
penalty dated 15.05.2019 and the order dated 31.12.2020 passed
by the Respondent No. 2 in Appeal and all consequential
proceedings are liable to be declared as illegal and without
jurisdiction.
By setting aside the impugned decisions as above, the
Petitioner shall be entitled to the pensionary benefits in terms of
the Officers Service Regulations as applicable to him. The
Respondent No. 1 is directed to release the arrears of pensionary
benefits to the Petitioner within the period of 6 weeks from today
and shall continue to release the pension in his favour every
month.
18. The Petition is made absolute in the above terms.
There shall be no order as to costs.
(ASHWIN D. BHOBE, J.) (BHARATI DANGRE, J.)
