Uttam Batabyal vs Paschim Banga Gramin Bank & Ors
2023 Latest Caselaw 4472 Cal

                              1




              IN THE HIGH COURT AT CALCUTTA

           (CONSTITUTIONAL WRIT JURISDICTION)

                      APPELLATE SIDE

Present:

The Hon'ble Justice Partha Sarathi Chatterjee



                      WPA 4024 of 2021

                       Uttam Batabyal
                            -Vs.-
              Paschim Banga Gramin Bank & Ors.



For the Petitioner      : Mr. Debabrata Saha Roy

                          Mr. Indranath Mitra

                          Mr. Subhankar Das

                          Mr. Neil Basu



For the Respondents     : Mr. Baidurya Ghoshal

Heard on                 : 18.07.2023

Judgment on              : 25.07.2023

Partha Sarathi Chatterjee, J:- The conundrum posited in this

writ petition is whether the disciplinary proceeding contemplated

against the writ petitioner after he demitted his office is tenable

or not.

For better appreciation of the issue of law emerging out of

obtaining factual matrix, the necessitous facts required to be

adumbrated are that the petitioner joined as Junior Clerk-cum-

Cashier on 23.11.1983 in Howrah Gramin Bank. In 1987, he was

promoted to the post of Field Supervisor (subsequently, re-

designated as Scale-I Officer) and in 2000, he was promoted to

Scale -II Officer. In 2012 he was posted at Batore Branch. The

petitioner retired from his service on attaining the age of

superannuation on 31.12.2016.

Howrah Gramin Bank, Burdwan Gramin Bank and

Mayurakshi Gramin Bank were constituted under the Regional

Rural Bank Act, 1976 and by virtue of a notification vide. dated

26.2.2007, issued by the Ministry of Finance, Department of

Economic Affairs (Banking Divn.), Government of India, the

aforesaid three banks were amalgamated to a single bank,

namely, PBGB and it started functioning under the sponsorship

of UCO Bank and under the guidance and control of the

Government of India and National Bank for Agriculture and Rural

Development (in short, NABARD) and the service conditions of

the Officers and employees of the PBGB were governed by the

Paschim Banga Gramin Bank (Officers and Employees) Service

Regulations, 2010 (in short, the Service Regulations).

In exercise of the powers conferred by Section 30 read with

Sub-section (1) of Section 17 of the Regional Rural Banks Act,

1976, the Board of Directors of PBGB after having consultation

with UCO Bank, National Bank and Government of India,

promulgated Paschim Banga Gramin Bank (Employees) Pension

Regulations, 2018 (in short, the Pension Regulations) w.e.f. 15 th

November, 2018. The petitioner opted for being governed by the

Pension Regulations and accordingly, his pension was released

but his commuted value of pension amounting to Rs. 10, 09, 062

was withheld.

On 03.06.2019, i.e. after almost two and half years, the

Chairman, PBGB issued a show-cause notice against the

petitioner seeking explanation as to why suitable action would

not be taken against him. The petitioner replied to that show-

cause notice on 29.6.2019 and on 7.3.2020, he was slapped with

a charge-sheet vide. dated 7.3.2020 in which four charges were

framed against the petitioner basing upon 14(fourteen) numbers

of statements of allegation.

The petitioner submitted his detailed reply to the charge-

sheet and under a memorandum and a notification, both dated

11.11.2020, the Enquiry Officer and the Presenting Officer were

appointed.

In such chronological events, since the authority concerned

has issued a charge sheet in contemplation of a disciplinary

proceeding initiated against the petitioner after his retirement,

questioning the tenability of the charge sheet dated 7th March,

2022, this writ petition has been preferred. Being so directed, the

respondents filed affidavit-in-opposition to the writ petition but

the petitioner has not filed his response to that affidavit-in-

opposition.

Mr. Saha Roy, learned advocate appearing for the writ

petitioner argued the matter on behalf of the writ petitioner.

Arguments advanced by Mr. Saha Roy, as crystallized, are that

the Pension Regulations came into force on the date of their

publication in the official gazette i.e. on 15th November, 2018. The

petitioner retired on 31.12.2016 and on 7.3.2020, a charge sheet

was issued against the petitioner taking recourse to the

Regulation nos. 43 of 46 of the Pension Regulations on allegation

of violation of Regulation nos. 18 and 20 of the Service

Regulations. According to Mr. Saha Roy, Pension Regulations

cannot be invoked to contemplate a disciplining proceeding

against the petitioner who retired prior to the date the Pension

Regulations came into effect.

The second plank of submission of Mr. Saha Roy is the

Regulation 43 can be invoked only if a pensioner is prima facie

found to be guilty of 'grave misconduct‟. He submits that the

expression „grave misconduct' has been defined in the

explanation 'b' of Regulation No. 44 as the commission or

disclosure of any secret official code or password etc. as referred

in Section 5 of the Official Secret Act 1923 so as to prejudicially

affect the interest of the general public or the security of the

State. He asserts that no such allegations have been levelled

against the petitioner which can be termed as „grave misconduct‟.

Drawing my attention to Regulation nos. 18 and 20 of Service

Regulations, he contends that the allegations levelled against the

petitioner do not attract Regulation nos. 18 and 20 of the Service

Regulations. He further submits that in view of Regulation 46

sub-clause (2), no disciplinary proceedings could have been

initiated against the petitioner. In support of his such contention

he laid immense emphasis on an unreported decision of Madhya

Pradesh High Court, Jabalpur Bench pronounced on 10th

December, 2020 in case of Subhas Chandra Join vs. MP Gramin

Bank and Ors.

Mr. Saha Roy argues that the provisions of the Pension

Regulations which empowered the PBGB to grant pension to its

retired employees of PBGB being the beneficial legislation can be

given retrospective effect but the provisions which authorized the

PBGB to contemplate disciplinary proceeding against its retired

employee being the penal legislation cannot be given retrospective

effect. According to him, beneficial circular can be applied

retrospectively but the oppressive circular has to be applied

prospectively. In support of such contention, he placed reliance

upon a judgment delivered in case of Director of Income Tax,

Circle 26(1),New Delhi -vs- S.R.M.B. Dairy Farming Pvt. Ltd.

reported in (2018)13 SCC 239.

The next limb of submission of Mr. Saha Roy is that the

allegations levelled against the petitioner is that he recommended

his higher authority to sanctions loans to two borrowers without

verifying the documents and subsequently, it was detected that

two borrowers used fake documents to procure the loans. He

submits that the petitioner was a mere recommending authority

not the sanctioning authority and consequently, for the frauds

perpetrated on the bank by the borrowers, the petitioners cannot

be penalized. Mr. Saha Roy contends that such disciplinary

proceedings cannot be held to be legal and the charge sheet

forming the basis of the disciplinary proceedings should be set

aside.

Per contra, Mr. Ghosal learned advocate appearing for the

respondents drawing my attention to the order dated 05.03.2021

passed by a coordinate bench of Court in this writ petition

submits that a coordinate bench has held that the judgement of

Subhas Chandra Join (supra) has no manner of application in the

case at hand and since the petitioner has availed of the

provisions of the Pension Regulations to enjoy the monthly

pension he is bound by the entire Regulations of 2018. In

elaboration of this contention, he submits that the petitioner

cannot be allowed to adopt pick and choose policy and claim that

out of entire Pension Regulations, only some of the Regulations

thereof will be applicable to him. He argues that the petitioner is

enjoying pension as a benefit of his past service and hence, he

cannot claim that his past employer cannot take step to

contemplate disciplinary proceeding against him invoking the

Pension Regulations.

He further contends that a coordinate bench held that as

per Regulation 3(c), the Regulation nos. 43 to 46 will be

applicable to the petitioner and Regulation no. 43 has empowered

the respondents to invoke the relevant provisions of the Service

Regulations.

He submits that the order dated 05.03.2021 was assailed

by the writ petitioner in an appeal being FMA No. 1251 of 2021

which has been disposed of by a Hon'ble Division Bench headed

by the Hon'ble Justice Subrata Talukdar (as His Lordship then

was) affirming the order dated 5.3.2021.

He contends that due to acts and omissions of the

petitioner, the bank has suffered financial loss to the tune of

more than 7 (Seven) Crores. He submits that not only against the

petitioner but against all the officials including the sanctioning

authority the disciplinary proceedings have been initiated and

1/3rd of their basic monthly pension and/or salary are being

deducted and the borrowers who practiced fraud upon the bank

are still languishing in jail.

Taking me to the contents of the affidavit-in-opposition Mr.

Ghosal submits that during stint of the petitioner, one M/s

Ereeck Technologies approached the bank for cash credit facility

of Rs. 5 Crores and Term loan of Rs. 2 Crores on 16/03/2016

and within two days they said proposal was cleared by the

petitioner and placed before the sanctioning authority. On

28/03/2016 the loan was sanctioned which was declared NPA in

2017. On enquiry, it was detected that the deed was fake and no

pre-sanction verification was not made by the petitioner, KYC

norms had not been followed and even the title deeds had not

been verified and a branch Manager of a bank is primarily

responsible for verification of those documents. Similarly, in

2015 a credit facility of Rs. 30 Lacks was sanctioned to one M/s

future films on the basis of the recommendation of the petitioner

and in that case also the loan account slipped to NPA and the

fraud was detected. He submits that disciplinary Proceedings

initiated against the petitioner has been concluded and an order

of punishment has been passed giving a direction for reduction

the basic pension of the petitioner by 1/3rd till he draws his

pension but in pursuance with the order passed by the Hon'ble

Division Bench, the order of punishment has not been given

effect to.

In reply, Mr. Saha Roy contends that while passing the

interlocutory order the coordinate bench opined that the views

taken in that order were prima facie view and such views were

taken only for the purpose of consideration of the prayer for

interim order of the writ petitioner. He further submits that it is

well settled proposition of the law the respondent cannot make

out a new case in the affidavit-in-opposition. He submits that in

their exception, the respondents have travelled beyond the

statements of allegation brought in the charge sheet and hence,

no reliance should be placed on the contents of the affidavit-in-

opposition used by the respondents. He submits that the

respondents have illegally withheld the commuted value of the

pension of the petitioner which should be directed to be released.

It is axiomatic that if the rules governing the service

condition of the employee permits the employer to continue the

disciplinary proceedings after the retirement of the employee and

to withhold and withdraw the pension, the employer may

contemplate and conclude the disciplinary proceedings against

its retired employee and take steps for withholding and/or

reduction of his pension. In this context, reference to the

authority in Secretary, Forests Department-vs- Abdur Rasul

Chowdhury reported in (2009) 7 SCC 305 would be instructive. It

is well settled proposition that when charges are serious and

when the institution has suffered monitory loss due to alleged

omissions and commissions of its employee done during his

tenure of service, disciplinary proceedings can be initiated and

concluded against the employee even after his retirement if the

service rules so permit.

Article 20(1) of the Constitution prohibits the legislature to

give retrospective effect to the criminal law, however, it does not

prohibit to fix civil liability retrospectively. It would be apposite

to refer the judgment delivered in case of State of Gujarat -vs-

Raman Lal reported in (1983) 2 SCC 33 in which a five judges'

bench of the Hon'ble Apex Court held that the legislature is

competent to legislate with retrospective effect to take away or

impair any vested right but such laws shall not contravene

fundamental rights. Legislature within its competence can

legislate retrospective service rules.

Regulation no. 43 of Pension Regulations lays down that if

the competent authority considers that the petitioner is prima

facie guilty of grave misconduct, it shall, before passing an order,

follow the procedure specified in the Service Regulations .

Regulation 46 of the Pension Regulations, which deals with the

provisions for 'Recovery of pecuniary loss caused to the Bank', has

empowered the Bank to withhold or withdraw a pension or part

thereof , whether permanently or for a specified period , and

order recovery from pension of the whole or part of any pecuniary

loss caused to the Bank if in any departmental or judicial

proceedings the pensioner is found guilty of grave misconduct or

negligence or criminal breach of trust or forgery or acts done

fraudulently during the period of his service. The proviso to

Regulation no. 46 says that disciplinary proceeding initiated

under the Regulation 46 shall be in accordance with the

procedure applicable to disciplinary proceedings in relation to the

employee during the period of his service. Regulation no.41 has

empowered to withhold or withdraw pension if the pensioner is

convicted of a serious crime or criminal breach of trust or forgery

or fraudulent act or is found guilty of grave misconduct.

So, if a pensioner is convicted of the aforesaid offences in a

judicial proceedings , the competent authority is empowered to

withhold or withdraw the pension without initiating any

disciplinary proceeding but if the pensioner is prima facie guilty

of grave misconduct, negligence or criminal breach of trust or

forgery or acts done fraudulently during the period of his service,

then to recover the pecuniary loss caused to the bank due to

such acts of pensioner, competent authority may contemplate

disciplinary proceeding for a limited purpose for recovery of

pecuniary loss caused to the bank by withholding or

withdrawing a pension or a part thereof.

Settled proposition of law is that the mere fact that a law or

rule looks back certain events that have already taken place does

not necessarily mean that the said law or rule operates from a

date anterior to its promulgation. A law or rule may take into

account the previous events or facts yet it may operate only

prospectively as from the date of its promulgation. Retrospective

or ex post facto legislation is one in which rights already acquired

under previous transactions, or previous rules are taken away as

form a date anterior to the promulgation of legislation or by

which something that was invalid, when actually done, is sought

to be validated. If rights are taken away not as form a date

anterior to the promulgation of a law but only as form the date of

its actual promulgation, such legislation cannot be described as

retroactive legislation, it acts only prospectively.

Penal statutes which create new offences are always

prospective, but penal statutes which create disabilities, though

ordinarily interpreted prospectively, are sometimes interpreted

retrospectively when there is a clear intendment that they are to

be applied to past events. Settled principle is that the Act of

Parliament shall ordinarily be prospective unless the legislature

in clear and unambiguous terms manifests its intention to give it

respective effect but such principle does not apply when penal

statute does not create new offence but authorise some action

based on past conduct. To such statutes, if expressed in

language showing retrospective operation, the aforesaid principle

is not applied ( see, the case of State of Bombay -vs- Vishnu

Ramchandra reported in AIR 1961 SC 307).

It is well settled principle of law that „no man has such a

vested right in his past crimes and their consequences as would

entitle him to insist that in no future legislation shall any regard

whatever be had to his previous history‟ and if the object of the

statute is not to inflict punishment but to protect the public from

the misconduct of any person, such misconduct which was done

before the operation of a statute may be relied upon (see, State of

Bombay (supra)].

Initially, the petitioner's pension was released under the

Employees' Pension Scheme, 1995 and then he has exercised

option to be a member of the fund created under the Regulation

no. 4 of the Pension Regulations, 2018 upon refund of the

amounts received by him under the Scheme of 1995 and he has

become a pensioner within the meaning of Regulation no. 2(v) of

Pension Regulations, 2018 w.e.f. 15.11.2018 being the date of

promulgation of the Pension Regulations. While releasing pension

from the fund created under Regulation no. 4 in favour of the

petitioner, the competent authority reserved its right to withhold

or withdraw the pension in case any of the conditions contained

in Regulation nos. 41 to 46 is fulfilled. So, it is quite vivid and

luminescent that the Pension Regulations look back to the past

conduct of a pensioner to recover the loss of public money.

The petitioner had exercised option to be governed under

the new Regulations and hence, the entire Regulations shall be

applicable to him and he cannot claim that only some of the

provisions of that Regulations will be applicable to him and the

rest would be inapplicable to him. One cannot claim that in a

transaction, he will enjoy his rights without incurring any liability

attached thereto. In view of discussion made hereinabove, the

first limb of submission of Mr. Saha Roy cannot be accepted.

The expression 'grave misconduct‟ has been explained in

Exp. (b) of Regulation 44 . Explanation (b) of Regulation no. 44

has been worded as follows:

(b) „grave misconduct‟ includes the communication or disclosure of

any secret official code or password or any sketch, plan, model,

article, note , documents or information, such as it is mentioned in

section 5 of the Official Secrets Act, 1923 (19 of 1923) which was

obtained while holding office in the Bank so as to prejudicially

affect the interests of the general public or the security of the State.

Legislature has used the word 'include' to define the

expression „grave misconduct‟. Use of the word 'include' in any

definition or interpretation clause indicates an intention of the

legislature to enlarge the meaning of the word used in the

statute. When any word or expression is defined using the word

'include', the meaning will be extensive. To deal with an inclusive

definition, it would be iniquitous to put a restrictive

interpretation upon terms of wider denotation.

While defining the expression grave misconduct‟ , legislature

intended that while giving natural and ordinary meaning to that

expression, commissions of acts enumerated in Official Secrets

Act shall also be included. The definition and interpretation of

the expression 'grave misconduct' shall not be restricted only to

the acts or actions enumerated in Explanation (b) of Regulation

no. 44.

It is noteworthy that one appeal being FMA no. 1251 of 2021

was preferred to impugn the order of the coordinate bench dated

5.3.2021 passed in this writ petition and the Hon'ble Division

Bench disposed of the appeal, inter alia by passing the following

orders :

"... Accordingly, the DP be completed within a further period of six weeks from this date by the respondents/the Bank without permitting the writ petitioner/appellant to take unnecessary adjournments.

It is made clear that in the event the writ petitioner/appellant stays away from the DP inspite of intimation by the respondents/the Bank, the Bank shall be entitled to complete the DP in his absence and present the report of the Disciplinary Authority (for short DA) before the Hon‟ble Single Bench.

However, in the event the writ petitioner/appellant attends the DP as intimated by the Bank, the appellant shall be entitled to an interim protection to the effect that the final order

of the DA shall not be given effect to without the leave of the Hon‟ble Single Bench.

It is reiterated that this order of interim protection shall stand automatically vacated in the event the writ petitioner/appellant stays away from the DP without just cause. It is also made clear that the time period for completing the DP as directed by this order binds both the parties."

Since the respondent has continued and concluded the

disciplinary proceedings in difference to the order passed by the

Hon'ble Division Bench in FMA 1251 of 2021 and it would be

against the judicial discipline and comity for this court to

frustrate the disciplinary proceedings and to quash the charge

sheet.

It is well-known that a decision is an authority for what it

decides and not can logically be deduced therefrom. Even in

slight distinction on fact or an additional fact may make a lot of

difference in decision making process. The judgment is a

precedent for the issue of law that is raised and decided and not

observations made in the facts of any particular case. In case of

Subhas Chand Jain (supra), there was no Regulation in M.P.

Gramin Bank ( Officers and Employees) Service Regulations,

2010 empowering the competent authority to contemplate

disciplinary proceedings after retirement of its employee and

there is no dispute as regards proposition of law laid down in the

judgment of Director of Income Tax, Circule 26(1), New Delhi

(supra), however, the same is distinguishable on facts.

It is worthwhile to note that in the case in hand the order of

punishment has been passed awarding a punishment of

reduction of the basic monthly pension of the petitioner by 1/3rd

till he draws his pension. In view of such sequence of facts, no

interference is called for in the writ petition. The respondents are

at liberty to give effect to the order of punishment.

Suffice it to observe that the Service Regulations has made

provision for appeal against the order of punishment passed by

the disciplinary authority and the petitioner is the liberty to

prefer appeal against the order of punishment on all grounds

available to the petitioner in law and in fact.

Since the order of punishment have been passed directing

reduction of the basic pension of the petitioner by 1/3 till he

draws the pension leaving the commuted value of pension

untouched, the respondent no. 2 is directed to release commuted

value of pension along with the interest accrued therein till the

date of actual payment thereof to the petitioner within four weeks

from the date.

With this observation an order the writ petition is being

WPA 4024 of 2021 stands thus disposed of, however, without

any order as to the Court.

Parties shall be entitled to act on the basis of a server copy

of this Judgement and Order placed on the official website of the

Court.

Urgent Xerox certified photocopies of this judgment, if

applied for, be given to the parties upon compliance of the

requisite formalities.

(Partha Sarathi Chatterjee, J.)