Pratap Singh vs Punjab & Sind Bank & Ors.
2011 Latest Caselaw 3206 Del

*       IN THE HIGH COURT OF DELHI AT NEW DELHI
33
+                              W. P. (C) 3906/2000

        PRATAP SINGH                                   ..... Petitioner
                               Through: Mr. A.B. Dial, Senior Advocate with
                               Ms. Ananya Datta Majumdar, Advocate.

                               versus

        PUNJAB & SIND BANK & ORS.              ..... Respondents
                        Through: Mr. Jagat Arora with
                        Mr. Rajat Arora, Advocates.


         CORAM: JUSTICE S. MURALIDHAR

          1.    Whether Reporters of local papers may be
                allowed to see the order?                            No
          2.    To be referred to the Reporter or not?               No
          3.    Whether the order should be reported in Digest?      No

                                ORDER

08.07.2011

1. The Petitioner filed this writ petition challenging an order dated 14th May 1997

passed by the Disciplinary Authority (`DA‟) of Respondent No. 1 Punjab & Sind Bank

(„Bank‟) dismissing the Petitioner from service. During the pendency of the writ

petition the Appellate Authority (`AA‟) dismissed the Petitioner‟s appeal against the

dismissal order by an order dated 19th March 2001. The Petitioner was then permitted

to amend the writ petition to challenge the said order as well. In addition the Petitioner

had prayed for a mandamus to the Bank to release the gratuity rendered for the period

between 1978 and 1995, leave encashment, interest on the provident fund amount and

salary for 12 days between 1st and 12th August 1995.

2. The Petitioner joined the services of Bank on 10th May 1978. On 12th August 1995

while serving as a Manager at Sri Ganganagar he addressed a letter to the General

Manager at New Delhi tendering his resignation from the Bank with effect from that

date. He further stated in the said letter that in terms of Regulation 20 of the Punjab &

Sind Bank (Officers) Service Regulations 1982 („Regulations‟) he had deposited three

months‟ salary with the Bank. He also enclosed a photocopy of the cash deposit receipt.

He, therefore, requested the Bank to accept his resignation with immediate effect and

release his terminal benefits. The Petitioner has also placed on record a copy of Office

Order dated 12th August 1995 whereby the charge of security items were taken over

from the Petitioner and he was asked to hand them over to one Mr. Jaswinder Singh

Nadha another employee of the Bank.

3. The Senior Manager at Sri Ganganagar on 14th August 1995 wrote to the Petitioner

stating that he was relieved from his service with instruction to report to the Zonal

Manager at Jaipur immediately. Apparently, this was issued pursuant to a decision

taken by the Bank to transfer the Petitioner from Sri Ganganagar to Jaipur. On receipt

of the said letter the Petitioner wrote to the Senior Manager of the Bank at Sri

Ganganagar stating that he had already resigned from service on 12th August 1995. He

requested that his terminal benefits be released.

4. On 7th October 1995 the Zonal office of the Bank at Jaipur issued a show cause

notice to the Petitioner stating that they had come across a newspaper report in the

„Pratap Kesari‟ published from Sri Ganganagar on 17th September 1995 in which it was

stated that one Mr. Pratap Singh, Senior Manager of Bank of Punjab had told the

correspondent that Bank of Punjab would shortly be opening a computerized branch in

the city. The show cause notice alleged that the Petitioner had acted as Senior Manager

of the Bank of Punjab even without his resignation dated 12th August 1995 being

accepted by the competent authority of the Bank. In the circumstances, the Petitioner

was asked to show cause why action should not be taken against him for violating Rule

6 of the Punjab and Sind Bank (Officers) Conduct Rules (hereinafter `Rules‟). The

Petitioner replied to the show cause notice on 8th October1995 denying that he had

joined any other service or that he had violated Rule 6. He reiterated that he had

already resigned from the Bank with effect from 12th August 1995.

5. On 27th October 1995 another show cause notice was issued to the Petitioner by the

Bank stating that he had not reported for duty at the Zonal Office in Jaipur despite

having being transferred there by an order dated 14th August 1995. The Bank also

informed that he would be discharged from the Bank only upon acceptance of his

resignation by the competent authority. He was asked to show cause why further

disciplinary action should not be taken against him for violation of Clause 13 (1) (2) of

the Rules. The Petitioner replied on 10th November 1995 denying the above charge. He

reiterated that he had already resigned from 12th August 1995 and sought release of the

terminal benefits.

6. On 21st November 1995 the Bank communicated to the Petitioner the articles of

charge and the statement of allegations in the departmental enquiry. There were two

articles of charge. The first was that the Petitioner had engaged himself in another

employment without "sanction of his resignation by the competent authority." The

second charge was that he had absented himself from the duty without sanction of leave

by the competent authority. The above acts were stated to be in violation of Clause 6

(1), 6 (3), 13 (1), 13 (2) read with Clause 24 of the Rules. As regards the first article of

charge, reliance was placed upon the news item published in the „Pratap Kesari‟ Sri

Ganganagar on 17th September 1995. As regards the second article of charge, reliance

was placed on the transfer order dated 14th August 1995.

7. The Petitioner replied to the articles of charge on 6th December 1995. An enquiry

officer was appointed on 13th December 1995. The Petitioner sent a legal notice to the

Bank on 20th December 1995. The Petitioner did not participate in the enquiry

proceeding. The departmental proceedings proceeded ex parte. The Bank examined

three witnesses who claimed to have seen the Petitioner working in the Bank of Punjab.

On 11th January 1997 a letter was written to the Petitioner by the Bank offering him a

final opportunity of a personal hearing in the inquiry for and filing his written

submissions. On 28th January 1997 the Petitioner wrote to the Enquiring Authority

reiterating that he had already resigned from service with effect from 12th August 1995

and therefore there was no question of the Bank proceeding with the inquiry.

8. The Enquiry Officer submitted his report on 15th March 1997 in which it was held

that the evidence led on behalf of the Bank remained unrebutted by the Petitioner who

had participated in the inquiry. The Enquiry Officer inter alia noted that the Bank had

been silent over the notice period salary. While the Regulations only authorize the

Bank to terminate the services of an officer by giving notice or salary in lieu of notice,

the employee could resign only after giving three months‟ notice. There was no

provision permitting the resigning officer to deposit three months‟ salary in lieu of

notice. The Enquiry Officer observed that the three months‟ salary deposited by the

Petitioner had been appropriated by the Bank without any protest or reservation. The

Enquiry Officer then proceeded to observe:

"Such, unconditional appropriation of notice period salary raises question mark, to be answered by none but the management only and no explanation has been placed before me in this case, as such, there will be grave injustice with the chargesheeted officer despite his absence and non-participation in enquiry proceedings, if my findings do not give reasonable and fair analysis of conduct of appropriating the

notice period salary/tendered by the CSO, who undoubtedly has no right to relinquish his employment contrary to the service regulations. This being a mixed question, I leave to the prudence of competent authority to decide, and report the finding of enquiry that the charges may be treated proved as undefended."

9. On receipt of the report of the Enquiry Officer, the Petitioner again wrote to the

Zonal Manager on 5th April 1997 reiterating his stand. Inter alia, he submitted that after

submitting his resignation he did not join any service up to 26th October 1996 on which

date he joined the Bank of Punjab. He maintained that after resigning from the Bank he

ceased to be an employee of the Bank. Therefore the entire enquiry proceedings stood

vitiated.

10. The enquiry report was considered by the DA who passed the impugned order

dated 14th May 1997 dismissing the Petitioner‟s representation. The DA construed the

letter dated 12th August 1995 as only an offer by the Petitioner to resign and that

without its acceptance by the Bank, the Petitioner could not have resigned from

services. The DA held the charges proved and imposed the punishment of dismissal

form service. The Petitioner‟s appeal against the dismissal was not disposed of by the

AA despite a legal notice from the Petitioner. In the circumstances, the present writ

petition was filed. After a notice was issued in the writ petition, a counter affidavit was

filed enclosing inter alia a copy of the order dated 19th March 2001 of the AA

dismissing the Petitioner‟s appeal. The Petitioner was thereafter permitted to amend the

writ petition to challenge the said order of the AA as well.

11. This Court has heard the submissions of Mr. A.B. Dial, learned Senior counsel

appearing for the Petitioner and Mr. Jagat Arora, learned counsel appearing for the

Bank, respectively.

12. Rule 20 (2) of the Rules which concerns resignation by an employee of the Bank

reads as under:

"2. 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 his service or resign. The period of notice required shall be three months and shall be submitted to the Competent Authority as prescribed in these regulations. Provided further that the Competent Authority may reduce the period of three months, or remit the requirement of notice."

13. Sub-rule 1 (a) of Rules talks of the Bank terminating the services of an employee

by giving three months‟ notice or "emoluments in lieu thereof". Rule 20 (2) on the

other hand does not expressly permit an employee who wishes to resign to avoid

giving three months‟ advance notice by paying the corresponding salary in lieu thereof

to the Bank. The proviso to Rule 20 (2) permits the Competent Authority to reduce the

notice period of three months or remit the requirement of notice altogether. In the

present case at the time when the Petitioner tendered his resignation on 12th August

1995, he had not obviously given three months‟ advance notice. In the absence of any

remission by the Competent Authority of the requirement of notice, the Petitioner could

not have avoided the said requirement by depositing three months‟ salary with the

Bank. The acceptance of such deposit by the Bank did not make a difference to the

legal position in terms of Regulation 20 (2). This meant that the Petitioner‟s resignation

letter tendered on 12th August 1995 would not be effective till the expiry of three

months‟ thereafter. During that period the Bank could have either accepted or refused

the resignation. The admitted position is that in the three-month period after 12th

August 1995 the Bank did not communicate to the Petitioner its decision either way:

i.e. acceptance or rejection of his resignation. The Bank instead kept issuing show

cause notices to the Petitioner for his having joined services with the Bank of Punjab

on the basis of a news item in the „Pratap Kesari‟ and on the ground that he failed to

report for duty at Jaipur where he was transferred. The Petitioner‟s reply to each show

cause notice asserted that he had resigned with effect from 12th August 1995. The

Bank‟s reply to this was that his resignation was still not accepted by the Competent

Authority of the Bank. The fact however is that at no point in time was a decision taken

by the Bank to reject the resignation letter of the Petitioner.

14. It was submitted by Mr. Arora, learned counsel for the Bank, that the show cause

notices issued to the Petitioner and the disciplinary enquiry commenced against him

implied that the Bank had rejected the Petitioner‟s resignation letter. This submission

overlooks the fact that Rule 20 (2) requires the employee seeking to resign to give three

months‟ advance notice to the Bank, it is expected that during the said period of three

months the Bank would communicate to the employee its decision on whether it wants

to accept or reject the resignation. The commencement of the disciplinary proceedings

against the Petitioner cannot be taken to be a refusal of the resignation as it happened

three months after the resignation. The disciplinary proceedings commenced on 21st

November 1995 by which time the resignation of the Petitioner had taken effect and he

was no longer an employee of the Bank. On a reasonable interpretation of Rule 20 (2),

if the Bank did not communicate to the Petitioner its refusal of his resignation within

three months after 12th August 1995, it should be taken that it had been accepted by the

Bank on the expiry of the period of three months. The Bank cannot be permitted to sit

on an employee‟s resignation letter and not communicate its decision thereon for an

indefinite period. That would render its action arbitrary and unreasonable.

15. The first article of charge placed the burden on the Bank to show that the Petitioner

had in fact been employed with the Bank of Punjab even without his resignation being

accepted by the Bank. According to the Petitioner, he joined Bank of Punjab only on

26th October 1996, by which time he was no longer in the service of the Bank. Instead

of relying on secondary sources like the news item in „Pratap Kesari‟ which

incidentally the Petitioner repeatedly denied, or on the evidence of three persons who

were not cross-examined, the Bank could have easily ascertained from the Bank of

Punjab as to when in fact the Petitioner joined its service. This was however not done.

As regards the second charge, the absence without permission if at all was only for a

period of three months after the tendering of the letter of resignation. Considering that

the Bank had appropriated without protest the three months‟ salary deposited by the

Petitioner in lieu thereof, the benefit of doubt in this regard ought to have been given to

the Petitioner. Consequently, the finding returned by the Enquiry Officer holding both

charges to be proved is unsustainable in law. The Enquiry Officer was himself unsure

of the correct legal position emanating from the Petitioner‟s resignation letter

accompanied by the deposit of three months‟ salary in lieu of notice. The conclusion of

the DA on both charges in the impugned order dated 14th May 1997 is contrary to the

correct legal position as explained above. The DA failed to appreciate that on the date

of commencement of the disciplinary proceedings the Petitioner was no longer an

employee of the Bank and was justified in not participating in the proceedings.

16. For the above reasons this Court sets aside the impugned order dated 14th May 1997

of the DA and of the consequential order dated 19th March 2001 of the AA dismissing

the Petitioner‟s appeal. Accordingly, this writ petition is allowed and a direction is

issued to the Respondent Bank to release to the Petitioner in accordance with law his

gratuity amounts due and leave encashment in accordance with the applicable Rules of

the Bank. The above amounts are directed to be paid to the Petitioner within a period of

eight weeks together with simple interest @ 6% per annum from the date when the said

amounts became due till the date of payment. As regards the claim of interest on the

provident fund amount, the Bank will examine such claim and make payment, if

permissible and if not already done, in accordance with law. The Bank will also pay to

the Petitioner within a period of eight weeks from today costs of Rs. 5,000/-.

17. The writ petition is disposed of in the above terms.

S. MURALIDHAR, J JULY 08, 2011 rk