Shri S.L. Saluja vs State Bank Of India
2004 Latest Caselaw 124 Del

JUDGMENT

Pradeep Nandrajog, J.

1. Petitioner joined service under the bank on 8.1.1967. Rule 19 of the S.B.I. Officers Service Rules regulates the age of superannuating of the officer employees. Said rule as in force up to 31.5.1998 read 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 year's service or thirty year's 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 fifty 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 who had joined the service of the Bank either as an officer or otherwise on or after July 19, 1969 and attained the age of 58 years shall not be granted any further extension in service.

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 year's service or 25 year's pensionable service as the case may be, by giving him three month's notice in writing or pay in lieu thereof.

Provided further that an officer who has completed 20 years' service or 20 years' pensionable service, as the case may be, may be permitted by the Competent Authority to retire from the Bank's service subject to his giving three month's notice in writing or pay in lieu thereof unless this retirement is wholly or partly waived by it.

19(2) Notwithstanding anything to the contrary in these rules, no officer who has ceased 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 or 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.

19(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 these rules, 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 shall on the last day of the month in which he completes the stipulated service of age of retirement."

2. By circular dated 29.5.1998, the age "58 years" stood enhanced to "60 years".

3. Circular aforesaid was followed by another circular dated 31.12.1998. Inter alia, it was stipulated as under :-

2. Consequent upon the decision taken by the Government of India to raise the retirement age of employees of Banks to 60 years from 58 years as circulated vide our circular No. CDOPER:27:98-99 dated 13.6.1998, the extension in service of our officials may be considered/reviewed by the bank as under :

First Stage On completion of 30 years of service/pensionable service or on attaining 55 years of age whichever occurs first, for grant of extension/ continuation up to 58 years of age.

Second stage On attaining 58 years of age for grant of extension/continuation up to 60 years of age being the age of retirement.

4. While he was posted as Assistant General Manager, petitioner was suspended pending enquiry on 1.8.1997. On 29.11.1997, a memo was issued to the petitioner to explain the allegations therein. It was replied to. Finding the reply unsatisfactory, charge-sheet was issued on 29.5.1999. As per the charges, petitioner failed to discharge the duties with utmost integrity, honesty, devotion and diligence.

5. Enquiry was in progress. On 12.12.1999, petitioner attained the age of 58 years. If extension of service was not to be granted, petitioner would have superannuated on 31.12.1999.

6. Petitioner claims that Competent Authority did not pass an order prior to 31.12.1999 extending the service of the petitioner up to the age of 60 years. He prayed that his terminal benefits be paid and enquiry closed. In response, he received a letter dated 2.2.2000 in which it was stated that the Competent Authority, vide it's letter dated 24.1.2000 written to petitioner, had extended his service up to 11.12.2000. Petitioner represented against said letter. He claimed that as per service rules, he stood retired on 31.12.1999 and, therefore, there was no question of extending his service thereafter. Bank refuted the stand of the petitioner. On 3.4.2000, the bank wrote as under :-

"With reference to your letter dated the 2nd Feb., 2000, addressed to Chief General Manager, Local Head Office, New Delhi, we advise that your contention that you had retired from the Bank's service as on 31.12.1999 i.e. on attaining the age of 58 years is untenable. The Competent Authority has granted you extension in service up to 11.12.2000, which has already been conveyed to you vide our letter No. AGM:29:2000:736 dated the 24th January, 2000 and as such you continue to be in Bank's service. Therefore, your request for payment of superannuation benefits cannot be acceded to. Please note accordingly."

7. Petitioner persisted with his stand. He wrote letter dated 24.4.2000. Bank replied as under :

"With reference to your letter dated 24th April,2000, you have been advised vide letter No.GEN/2000/2 dated 3.4.2000 that the competent authority has granted your extension in service up to 11.12.2000 which has already been conveyed to you vide letter No. AGM:29:2000:736 dated 24.1.2000 and as such you continue to be in Bank's service. Your contention, therefore, that you have retired from Bank's service as on 31.12.1999 is untenable.

In view of the above, your request for stopping the enquiry cannot be acceded to."

8. Present petition come to be filed. Narrating the facts aforesaid and relying on Rule 19 and the circulars, petitioner prayed :

"a) Quash the letters dated 3.4.2000 and 4.5.2000 vide which the representations of the petitioner were rejected and also the alleged order of extension of service dated 24.1.2000 which has not been received by the petitioner.

b) Quash/set aside the inquiry proceedings as the petitioner stands retired on 31.12.1999.

c) Direct the respondents to settle the terminal benefits (retirement dues) of the petitioner."

9. Stand of the bank is that the process of extension in service of the petitioner had started on 4.8.99 itself, whereby the Personnel Department of the Local Head Office, New Delhi had sought confirmation from the Vigilance Department to confirm the pendency of the Disciplinary case against the petitioner. The approval of extension in service is a lengthy process, The recommendation of Controlling Authority were approved by the Reviewing Committee i.e. General Manager (D&DB) on 3.12.99 and General Manager (Commercial) on 6.12.99, which was duly approved by Chief General Manager on 15.12.99 i.e. much before 31st December,1999. The extension duly approved was conveyed to Delhi Zonal Office, Personnel Section on 20.12.99 and was further conveyed thereafter to Ansari Nagar Branch on 6.1.2000. The petitioner was conveyed the extension by Ansari Nagar Branch vide its letter dated 24.1.2000. Since the petitioner had refused to accept the letter of extension sent by special messenger, hence the same was communicated by registered post on 15.2.2000 which was duly received by the petitioner on 17.2.2000. It is stated that it is incorrect that no order was passed by the Competent Authority for continuation of the service of the petitioner.

10. Reliance for the defense is placed on Rule 19(2) and (3) and Rule 20. Rule 19(2) and (3) has been reproduced in para 1 above. Rule 20 reads as under :

"Termination of Service

20(1) An officer shall not leave or discontinue his service in the bank without first giving a notice in writing of his intention to leave or discontinue the service or resign. The period of notice required shall be three months and shall be submitted to the competent authority.

Provides that a Probationary Officer who has entered the service of the Bank as such shall not be entitled to give notice or leave the service of the bank until the expiration of the stipulated period of probation and any breach of this proviso shall entitle the Bank to proceed in accordance with the provisions of sub-rule (3) of rule 14.

Provided that the competent authority may at its discretion permit an officer to resign without notice or forfeiture of security deposit or payment of three month's emoluments in lieu of notice or reduce the period of notice.

20.2(a) Notwithstanding anything to the contrary contained in the sub-rule(1), an officer against whom disciplinary proceedings are pending shall not leave/discontinue or resign from his service in the bank without the prior approval in writing of the competent authority and any notice of resignation given by such an officer before of during the disciplinary proceedings shall not take effect unless it is accepted by the competent authority.

(b) Disciplinary proceedings shall be deemed to be pending against an officer for the purpose of this rule if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings should not be instituted against him or where any charge sheet has been issued against him and will be deemed to be pending until final orders are passed by the competent authority.

Explanation : A show cause notice or order of suspension or charge sheet shall be deemed to have been issued prior to or during the period of notice, if it has been signed by the authority empowered in this behalf under the rules and put on a course of transmission prior to or during the said period whether or not it was actually received by the officer."

11. Mr.Gopal Subramanium, learned counsel for the petitioner inter alia made the following submissions:-

(i) Under Rule 19(1) petitioner retired on completing 30 years pensionable service and by operation of the said rule, since no extension was granted on or before 5.7.1997, petitioner stood retired on 5.7.1997 and therefore there was no question of continuing with the departmental proceedings. There was no rule which permitted the authorities to continue with the departmental proceedings post retirement of an employee.

(ii) In any case, petitioner attained the age of 58 years on 11.12.1999 and stood retired on 31.12.1999. Decision taken on the file to continue the service of the petitioner beyond the age of 58 years was meaningless. Admittedly, the first communication addressed to the petitioner was on 24.1.2000. Decision on the file has no sanctity in law till put into communication.

(iii) Extension of service beyond the age of 58 years had to be on the ground that extension beyond 58 years was in the interest of the bank. It was contended that it could not be said to be in the interest of the bank to extend services of an employee facing disciplinary action.

12. Per contra, Shri Mukul Rohtagi, A.S.G. appearing for the Bank contended that decision taken on the file to extend the service of the petitioner being taken prior to 31.12.1999 was legal and valid and it hardly mattered when the same was put into communication. Further submission was that under Rule 19(2), an employee facing disciplinary proceedings could not retire without a positive order from the authorities concerned and since there was no positive order in favor of the petitioner permitting him to retire, it was a case where the petitioner continued to be in employment of the Bank. Counsel contended that while interpreting Rule 19 the spirit of Rule 20(2) (a) should be kept in view.

13. Learned counsel for the petitioner relied upon the judgment of the Supreme Court reported as , Bachhittar Singh Vs. State of Punjab. Counsel for the respondent relied upon the judgment of the Supreme Court reported as S.B.I. Vs. C.B.Dhull.

14. At the outset, first submission made by learned counsel for the petitioner needs to be noted and rejected. It was never the case of the petitioner pleaded in the writ petition that petitioner is deemed to have retired on completing 30 years of service. It is no doubt true that under Rule 19(1) the first point of time where an employee superannuates, is on completion of 30 years of service or attaining the age of 58 years, which ever occurs first. Though, petitioner completed 30 years of pensionable service on 5.7.1997 but the fact of the matter is that he continued to be in employment and drew his regular salary till his suspension on 1.8.1997. Thereafter, petitioner continued to receive his subsistence allowance. In fact, till 31.12.1999 petitioner did not raise said issue. By his conduct petitioner is estopped from contending that he superannuated from service on 5.7.1997.

15. It is the common case of the parties that under the service rules, extension of service up to the age of 60 years could be granted by the Bank. The only issue which needs consideration is, what would be the effect of an order passed on the file prior to the petitioner attaining the age of 58 years but communicated to the petitioner beyond the date when the petitioner completed the age of 58 years. Rule 19(2) also needs to be looked into.

16. Petitioner relies upon the judgment of the Constitution Bench of the Supreme Court in Bachhittar Singh's case. In para 10 of the judgment, the Supreme court stated the law as under:-

"(10) The business of State is a complicated one and has necessarily to be conducted through the agency of a large number of officials and authorities. The Constitution, therefore, requires and so did the Rules of Business framed by the Rajpramukh of Pepsu provide, that the action must be taken by the authority concerned in the name of the Rajpramukh. It is not till this formality is observed that the action can be regarded as that of the State or here, by the Rajpramukh. We may further observe that, constitutionally speaking, the Minister is no more than an adviser and that the head of the State, the Governor or Rajpramukh, is to act with the aid and advice of his Council of Ministers. Therefore, until such advice is accepted by the Governor whatever the Minister or the Council of Ministers may say in regard to a particular matter does not become the action of the State until the advice of the Council of Ministers is accepted or deemed to be accepted by the Head of the State. Indeed, it is possible that after expressing one opinion about a particular matter at a particular stage a Minister or the Council of Ministers may express quite a different opinion, one which may be completely opposed to the earlier opinion. Which of them can be regarded as the 'order' of the State Government? Therefore, to make the opinion amount to a decision of the Government it must be communicated to the person concerned."

17. One of the principal reason to make an order effective when it is communicated to a party concerned is that the party affected by a decision must be put to knowledge as anything which affects the right of a person must necessarily, in law be communicated to the party concerned. There are various judgments that unless a government decision or an order is put in the channel of communication it would be of no effect. No matter, when a person actually receives it, the important fact is of the order going out of the control of the authority which passed that order. But this necessarily would not mean that an order passed on the file is no order in the eyes of law till not put into communication. It is altogether a different consideration which has to apply when period of limitation has to be considered in relation to the doing of an act and the authority loosing locus patentee vis-a-vis the legal effect of the order.

18. This aspect was considered by the Supreme court in the judgment reported as 1992 Supp.(1) SCC 471 Collector of Central Excise, Madras Vs. M.M.Rubber and Co.. Following observations are pertinent:-

"12. It may be seen therefore, that, if an authority is authorised to exercise a power or to do an act affecting the rights of parties, he shall exercise that power within the period of limitation prescribed therefore. The order or decision of such authority comes into force or becomes operative or becomes an effective order or decision on and from the date when it is signed by him. The date of such order or decision is the date on which the order or decision was passed or made : that is to say when he ceases to have any authority to tear it off and draft a different order and when he ceases to have any locus patentee. Normally that happens when the order or decision is made public or notified in some form or when it can be said to have left his hand. The date of communication of the order to the party whose rights are affected is not the relevant date for purposes of determining whether the power has been exercised within the prescribed time.

18. Thus if the intention or design of the statutory provision was to protect the interest of the person adversely affected, by providing a remedy against the order or decision any period of limitation prescribed with reference to invoking such remedy shall be read as commencing from the date of communication of the order. But if it is a limitation for a competent authority to make an order the date of exercise of that power and in the case of exercise of suo moto power over the subordinate authorities' orders, the date on which such power was exercised by making an order are the relevant dates for determining the limitation. The ratio of this distinction may also be founded on the principle that the government is bound by the proceedings of its officers but persons affected are not concluded by the decision."

19. The matter could be looked at from another angle. The other angle being the ratio of the decision of the Supreme court in C.B.Dhull's case. Said judgment was considering Rule 20A of the previous S.B.I. Service Rules. The rule read as under:-

20-A. Notwithstanding anything to the contrary in these Rules, no employee who has ceased to be in the Bank's service by the operation of, or by virtue of, any rule, 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 or 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."

20. Rule 19(2) of the present rule is in pari material with the Rule 20A of the previous rules. In C.B.Dhull's case it was held that Rule 20A clearly envisaged that retirement had to be sanctioned by the competent authority. Retirement would mean retirement on superannuating or any other type of retirement. On facts it was held that since C.B.Dhull was facing disciplinary proceedings and his cessation of service was not sanctioned as per the rules he would be entitled to no pension as a consequence of the penalty imposed in proceedings which had continued beyond the date 28.5.1970 on which date C.B.Dhull would have otherwise retired.

21. It cannot be said that it would not be in the interest of the Bank to continue with the employment of its employee who is facing a disciplinary action. Respondent is a bank. Charges against the petitioner are serious. The Bank has lost nearly a crore of rupees. It cannot be said that extension of the service of the petitioner to enable the Bank to complete the disciplinary proceedings is not in the interest of the Bank.

22. Writ petition is dismissed. However, in the facts and circumstances of the case there shall be no orders as to costs.