Madan Mohan Rao vs United Bank Of India & Ors.
2013 Latest Caselaw 1842 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           W.P.(C) Nos. 5033/1997 & 6546/2003

%                                                          25th April, 2013

1.       W.P.C No.5033/1997

MADAN MOHAN RAO                                                  ......Petitioner
                            Through:     Mr. M.N.Krishnamani, Sr. Adv. with Mr.
                                         Soumyajit Pani, Advocate.


                            VERSUS

UNITED BANK OF INDIA & ORS.                 ...... Respondents

Through: Mr. Aquib Ali, Advocate.

2.       W.P.C No.6546/2003

MADAN MOHAN RAI                                                  ......Petitioner
                            Through:     Mr. M.N.Krishnamani, Sr. Adv. with Mr.
                                         Soumyajit Pani, Advocate.

                            VERSUS

UNITED BANK OF INDIA & ORS.                  ...... Respondents
                  Through:  Mr. Aquib Ali, Advocate.



CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA

    To be referred to the Reporter or not?     Yes.





 VALMIKI J. MEHTA, J (ORAL)

CM No. 18154/2012 (restoration) in W.P.(C) No. 5033/1997 CM No. 18151/2012(restoration) in W.P.(C) No. 6546/2003

There is no opposition to these applications. The applications are therefore

allowed and writ petitions are restored to their original numbers.

CMs stand disposed of.

W.P.(C) No. 5033/1997& W.P.(C) No. 6546/2003

1. Both these writ petitions are between the same parties and raise a

common issue of validity of the voluntary retirement of the petitioner, and

therefore, they are being disposed of by a common judgment.

2. These writ petitions are filed by the petitioner-Sh. Madan Mohan Rai

impugning the order of the Disciplinary Authority dated 5.6.2003, by which the

petitioner has been imposed the punishment of "removal from service which shall

not be disqualification for future employment" and the suspension order dated

3.7.1996. It is agreed before me that on disposal of W.P.(C) No. 6546/2003 the

other writ will also stand decided accordingly.

3. Since the charges against the petitioner are serious, and they are best

understood in the language of the Article of Charges, I would seek to reproduce,

though lengthy, the entire Article of Charges, which read as under:-

"Sri Madan Mohan Rai(SPF No.12085) Ex-Manager(Under order of suspension) United Bank of India Shahzadabag Branch Delhi.

Dear Sir, Re: 1. A/c M/s. Charms Metallisers(P) Ltd.,

2. Sri Raman Bhatia & Mrs. Kamal Bhatia,

3. Jagdish Dairy,

4. M/s Modame Fashion with our Shahzadabad branch During tenure of your service as Manager of our Shahzadabag branch you had recommended/sanctioned/disbursed credit limits in captioned borrowal Accounts. In this connection, you are requested to explain the following issues:-

1. CHARGES METALISERS PVT.LIMITED.

(i) You obtained introduction in opening the C/D A/c. of M/s Charms from another C/D A/c. holder i.e. M/s. Avon Packing Industries (C/D A/c. No. 1370) who confirmed that they had no knowledge about M/s. Charms but they introduced the A/c. at your request. Why you resorted to such way of obtaining introduction instead of having introduction from party‟s existing banker.

(ii) No permission was obtained by you from Oriental Bank of Commerce, G.T.Karnal Road, Delhi for opening the C/D. A/c. of M/s Accurate Capacitor at your branch(A/c. was opened on 13.1.95) since M/s Accurate Capacitor was enjoying Cash Credit facility with that Bank since 1984 in violation of Bank‟s guidelines.

(iii) You recommended the loan proposal of M/s. Charms without obtaining and/or examination of RIICO‟s processing note.

(iv) You released the adhoc facility of Rs.30 lacs without obtaining matching contribution and personal guarantee of Sri P. Goyal, Director and before execution of interse agreement for creation of 2nd charge on the fixed assets of the company in favour of the Bank(first charge being with RIICO) in violation of terms of sanction of Regional Office.

(v) While recommending (alongwith DRM, Advance) for sanction of regular limit of rs.98 lacs, you had mentioned in the processing note that "from the papers submitted and the assessment made by RIICO‟s project appear to be economically viable". You further referred in the said note about RIICO‟s study report on marketability of the product. It is not clear without examining RIICO‟s report how such observations could be made in the note.

(vi) Assessment of working capital was made considering raw materials and finished goods at a much higher rate than cost or market price prevailing at that time. As a result the party was allowed to have higher working capital limit than actually required.

(vii) You did not obtain personal guarantee of all the four directors in individual capacity as per terms of sanction for the overall limit of Rs.98 lacs. Instead personal guarantee of only one director i.e. Sri Manoj Kumar Agarwal had been taken by you. It is observed that remaining Directors executed guarantee in the capacity of director of the company.

(viii) Net worth of the Directors was prepared by you on the basis of individual assets & liabilities statement signed by the Managing Director of the company instead of concerned Directors.

(ix) Regular limit of Cash Credit of Rs.46 lacs was released on 23.2.95 while joint inspection by you with DRM (Credit) was conducted on 24.2.95 violating the terms of sanction of Regional Office in that such limit should have been released only after satisfactory joint inspection of Branch and Regional Office.

(x) Joint inspection carried out by you along with the then DRM (Credit) on 24.2.95 at the factory as per terms of sanction of the Regional Office revealed that there was no production and plant was still not functioning.

(xi) After the aforesaid inspection, although there was no trial/commercial production, you allowed further excess drawings of Rs.11 lacs (approx.) in Cash Credit A/c. of the Company on 25.2.95 and 28.2.95. You did not carry out inspection of the factory immediately after starting of production by the company but undertook the same at a much later date when the unit stopped productive operation.

(xii) You purchased six bills amounting to Rs.25.49 lacs against Bill purchase/Bill Discount limit of Rs.27 lacs (details shown in Annexure-A) without carry out even a semblance of checking of the documents which contained following irregularities:-

(a) Except drawee of one bill (i.e. Accurate Capacitor, an associate concern of M/s. Charms Metallisers Pvt. Ltd) none of the remaining drawees were in the list of the buyers submitted by M/s. Charms metallisers Pvt. Ltd. along with the loan proposal. It has been revealed that all remaining drawees are suppliers of raw materials or plant & Machinery.

(b) Bills drawn on M/s. A.T.P. Leather (P) Ltd., M/s. Pranam Films, M/s.

Sayuz Engg. & Mfg. Company and M/s. Lennarts Equipment Pvt. Ltd. contain following irregularities:-

       i)     Transporter not IBA approved.
       ii)    Xerox copy of Transport Receipt submitted.

iii) Instead of Charms Metallisers (P) Ltd., names of two other consignors indicated in transport receipt.

iv) Name of two consignees indicated in transport receipt.

v) Transport receipt number is same for concerned bills.

vi) Transport receipt is not related to the concerned bills.

(c) Bill drawn on M/s. Accurate Capacitor contains following irregularities:-

       i)      Transporter not IBA approved.
       ii)     Xerox copy of transport receipt submitted.
       (d)     In case of bill drawn on M/s. Soyuz Engg. & Mfg. Company for Rs.3 lacs,
       transport receipt has not been submitted.
       (e)     Out of the aforesaid six bills, due dates of four bills were extended by you

from 27.4.95 to 15.5.95 without obtaining approval from the competent authority.

(f) No effort has been made by you to ascertain genuineness and/or capacity of the drawees of the bills purchased.

(g) There is no record at the Branch that you obtained references on drawees of the bills from their Bankers before purchasing the bills.

(h) Bills drawn on M/s. A.T.P. Leather (P) Ltd., M/s. Pranam Films, & M/s. Lennarts Equipments Pvt. Ltd. contain forged signatures of the drawees with different rubber stamp in hundi and challan as per drawee‟s version.

(i) After return of the bills no protest has been lodged with Notary Public as per norms of the Bank.

(j) Chief Regional Manager, North India Region had advised you in August, 1995 & September, 1995 to conduct investigation about the bill transaction & to meet the drawees personally to ascertain the goods/materials supplied by M/s. Charms to them, but you did not follow up letters to M/s. Charms & the drawees as revealed from regards at the branch.

(xiii) Comparison of stock statement dated 14.2.95 and 18.2.95 reveals following irregularities:-

(a) Utilisation of stock was shown inspite of no production.

(b) Opening and Closing balance of stock of some items were not reconciled.

The above position indicates that you have not scrutinized stock statements and allowed drawings in the account.

(xiv) Excess drawings were allowed by you in the Cash Credit A/c. of M/s. Charms from time to time (details shown in Annexure-B) and excess drawings under Sl. Nos.1 to 3, 5 to 6 and 8 to 15 were not reported to the Regional Office either through irregularity statement or through letter. Besides, such excess drawings allowed by you were not within your discretionary power.

(xv) Substantial amount of cash withdrawal of Rs.10 lacs was allowed by you on 16.3.95 to Sri C.P. Agarwal, Director of the Company in the Cash Credit A/c. of the Company without ensuring end use of the fund.

2. Raman Bhatia & Mrs. Kamal Bhatia.

(a) Branch was not designated for allowing advance against shares. Further, such advance may only be sanctioned by the Chief Regional Manager. You had, in violation of Head Office guidelines granted the said advance.

(b) No loan application was obtained from the party as per Head Office format.

(c) No processing note, evidencing processing of the loan nor any sanction letter was issued to the borrower.

(d) Although sanction was accorded on 23.9.94 but documents were obtained on 22.9.94.

(e) No documents except a pronote were taken for this evidence.

(f) Excess drawings were allowed by you without written request from the borrower and prior approval of Regional Office.

(g) No reporting was made through Irregular Sheet or otherwise to Regional Office about such excess drawings. Details of excess drawings are as under:-

       Date                  Cheque No.         Amount (Rs.)         Amount             of
                                                                     Irregularity (Rs.)
       17.02.95              12611              8,439/-              3,720/-
       10.03.95              12615              2,275/-              2,457/-
       08.04.95              12616              7,000/-              10,268/-
       16.04.95              12619              11,000/-             8,191/-
       13.08.95              14576              10,000/-             18,765/-

3. Jagadish Dairy, Prop. Smt. Sumitra Devi wife of Sri Jagadish Kumar, Sub- Staff of out Kirti Nagar branch.

(a) In terms of sanction it was mentioned that equitable mortgage of the property of 500 sq. Yds. in the name of Smt. Sumitra Devi is to be taken but in record two sale deeds are found, one measuring 200 Sq. Yds. in the name of Sri Jagadish Kumar and other measuring 300 Sq. Yds. in the name of Smt. Sumitra Devi. Deposit of memorandum of title deed was taken only from Smt. Sumitra Devi for the property of 300 Sq. Yds. and so terms of sanction was not followed.

(b) The dairy farm for which the advance was sanctioned is out of jurisdiction of the branch and is situated in another state.

(c) No permission of General Manager (Credit) had been obtained for release of fund in staff related account as per Head Office guidelines.

4. Modame Fashion

(i) Regional Office sanctioned credit limit in the captioned account subject to

compliance of certain stipulations before release of fund. However you had released the fund without complying with following stipulations of Regional Office:-

(a) Pledge of Term Deposit was taken for Rs.3.00 lacs instead of Rs. 7 lacs.

       (b)     SSI Registration was not obtained.

       (c)     Opinion sheet was not drawn to ascertain the worth of the borrower.

       (d)     Lease Agreement of rent of the factory premises was not obtained.

       (e)     No Certificate from C.A. was obtained suggestion/confirming the raising of

capital and unsecured loan by Rs.3.00 lacs each.

(f) R.B.I.Code for Exporter was not obtained.

       (g)     Third Party guarantee was not taken.

       (h)     Guarantee of partners was not taken in official capacity.

       (ii)    End use of funds was not ensured as drawing of self cheques were allowed

by you from the C/C A/c. You also allowed against Bank Debts without observing the age of the Book Debts.

(iii) Excess drawings were allowed (As per details given below) in violation of Head Office guidelines. Further, said excess drawings were not reported to Regional Office.

               Date              Cheque No.         Amount        of Amount             of
                                                    Cheque (Rs.)      Irregularity(Rs.)
               27.01.95          11089              2,910/-           2,560/-
               25.02.95          11095              5,000/-           7,590/-
               02.03.95          11093              1,500/-           9,090/-
               10.03.95          11094              1,625/-           25,115/-
               03.04.95          14226              50,000/-          76,659/-
               07.04.95          14227              1,800/-           78,459/-
               17.04.95          14228              15,000/-          93,459/-
               20.04.95          14230              70,000/-          1,63,459/-

(iv) Sale proceeds were not deposited in the account; the A/c became hard and categorized as NPA. After adjustment of pledged term deposit of Rs.3.00 lacs (Rs.3,41,306/- with interest), the debit balance in the A/c. remained as Rs.9,45,694.50 which is not covered by any tangible security.

You are requested to submit your written reply within 15 days from the date of receipt of this letter. If no reply is received within the said period, it will be construed that you have no reply to offer. In that case Bank will take necessary action as deem fit in the matter.

                                                            Yours faithfully
              Encl: As above                          Chief Regional Manager"

4. It is an undisputed position that the petitioner never appeared in the

enquiry proceedings. The order of the Disciplinary Authority dated 5.6.2003

records that in spite of repeated notices to the petitioner at the given address,

petitioner failed to appear and thereafter newspaper insertion was made. The order

of the Disciplinary Authority also records that the proceedings which were

conducted by the Enquiry Officer were from time to time sent to the address of the

petitioner. The relevant portion of the impugned order dated 5.6.2003 including the

aspect of finding of guilt against the petitioner is reproduced as under:-

"I further find that the charge sheet was sent to your recorded address but could not be served due to your leaving the address without information to the Bank. In such a situation a paper notification was inserted in a leading Newspaper at Delhi 25.12.2000 informing you about the issuance of such charge sheet as well as to appear before the enquiry officer on the date notified therein. But it was observed from the records that you neither appeared before the enquiry officer to defend your case nor you informed the Bank about your intention to defend the charges leveled against you under Bank‟s charge sheet referred above. In such a saturation the enquiry officer conducted the regular enquiry proceedings ex-parte. I therefore, observed that holding of enquiry proceedings ex-parte. I therefore, observed that intentionally avoided to defend your case and as such concept of principle of natural justice had not been denied to you by holding enquiry ex-parte.

I further observed that the Enquiry officer sent copies of day to day proceedings to your recorded address with a view to keep you informed with the development as well as provide opportunity to defend your case at the enquiry, as those documents could not be served upon you in normal course, the paper notification was also inserted in the local leading Newspaper on 20.08.2001 informing you that the enquiry has been completed and that you may collect the findings of Enquiry Officer and make your submission, if you desires, on the findings of Enquiry and make your submission, if you desires, on the findings of Enquiry Officer within 10(ten) days from the date of insertion of notice. I therefore, observed that you were allowed every reasonable opportunity to and remained away from the enquiry proceedings from the reason not know to the Bank. In such a situation I hold that the enquiry was conducted properly and in compliance with the principle of natural justice.

On perusal of enquiry report I observed that you during your tenure as Manager allowed M/s Charma Metalisers Pvt. Ltd. to open account with introduction of an account holder who actually not known to M/s Charms Metalisers Pvt. Ltd. you, in the said newly opened account committed several irregularities in its operations including sanction of limits. Besides above you also allowed on overdraft limit in favour of Sri Raman Bhatia and Kamal Bhatia without processing and communicating the terms of sanction. You also failed to obtain documents in this connection. Further, you also irregularly sanctioned a term loan in the account of Jagadish Dairy and also allowed a cash credit limit in Modem Fashion in violation of Bank‟s rules, procedures and beyond your discretionary power. The enquiry officer under his report dated 16.03.2001 held that the charge leveled against you under Bank‟s charge sheet referred above have been proved at the enquiry. I, in consideration of records of enquiry also find that the charges leveled against you under Bank‟s charge sheet referred above were proved at the enquiry and as such I concur with the findings of enquiry officer and hold you guilty of the charges leveled against you."

5. The aforesaid Article of Charges and the order of the Disciplinary Authority

show that there were serious charges against the petitioner of sanctioning limits

without necessary approval, not obtaining security documents, wrongly obtaining

security documents, not obtaining guarantee documents from the Directors, not

obtaining appropriate mortgage papers etc etc. The financial limits in question was

of many lacs of rupees. Petitioner was given complete liberty to appear in the

departmental proceedings but he did not appear. The only defence of the petitioner

was that the petitioner was not entitled to appear in the departmental proceedings

as the petitioner had given his letter for voluntary retirement dated 29.3.1996, and

therefore, petitioner is being taken to have retired after three months from

29.3.1996, hence the suspension order dated 3.7.1996 was served on the

petitioner on 5.7.1996 i.e after the period of three months of the letters seeking

voluntary retirement, the initiation of departmental proceedings and suspension of

the petitioner is illegal in view of the Section 29(2) of the Regulations of United

Bank of India (Employees) Pension Regulations 1995 and which reads as under;-

"The notice of voluntary retirement given under sub-regulation[1] shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period."

6. The defence of the respondent-bank is that the voluntary retirement of

the petitioner in fact was to take effect after three months of the petitioner‟s letter

dated 11.4.1996, and by which letter, the petitioner clarified his earlier letters dated

29.3.1996 which used the expression "not only of resignation but also seeking

voluntary retirement by the petitioner". It is argued that three months period

expired on 11.7.1996 and since the suspension order dated 3.7.1996 was served

upon the petitioner on 5.7.1996, therefore, the automatic voluntary retirement

provision as contained in the Regulations 29(2) would not apply. It is also argued

on behalf of the respondent-bank that petitioner after applying for voluntary

retirement and resignation was unauthorizedly absent from duty for 17 days and

therefore, the period of voluntary retirement of three months gets extended by 17

days in view of the Clause 30(A) of the Administration Instruction to United Bank

of India (Officers) Service Regulations 1979, which reads as under:-

"Where an officer tenders his resignation from the service of the bank by serving required notice, but absents himself from duty without leave being sanctioned by the authority specified in para 30 above, the notice period will automatically be extended by the period of such absence. This, will be without prejudice to the banks right to take such other action in the mater as may be necessary. Under no circumstances, a resignation letter tendered by an officer shall be accepted in absentia. The Branch/Regional Offices/Zonal Office should take care not to forward such cases to Head Offices and should deal with such cases immediately at their level by communicating the rules of the bank in this regard to the concerned officers at his/their record address(es)".

7. The issue to be squarely decided by this Court is as to whether the

petitioner is correct in contending that he is deemed to have voluntarily retired

three months after 29.3.1996 and therefore, the suspension order dated 3.7.1996

can be said to have been issued after the petitioner‟s relationship of employee with

the respondent-bank as employer terminated, and thereby, the entire departmental

proceedings are flawed for this reason.

8. In order to understand the aspect of whether the petitioner had by the

letter dated 29.3.1996 sought voluntary retirement or had resigned from the bank

or there was clearly a confusion as to whether the petitioner had sought voluntary

retirement or had sought resignation, it will be necessary to reproduce not only the

first letter dated 29.3.1996 but three other letters of the petitioner of the same date,

since all the four letters refer not only to the petitioner seeking voluntary

retirement, but also resignation. These letters read as under:-

LETTER-1

"From: MADAN MOHAN RAI Officer, United Bank of India, 35-36, Aggarwal Bhawan, Nehru Place, New Delhi-110019.

Dated: March 29,1996.

To The General Manager, (Personnel) United Bank of India, Head Officer, 16, Old court House Street, Calcutta-700 001.

Dear Sir, Subject: My Voluntary Retirement/Resignation from the Bank Service.

(THROUGH: THE CRM, NEW DELHI) I hereby tender my resignation from the service of the bank

ON HEALTH GROUNDS and seek voluntary retirement w.e.f. Friday on the 29th March, 1996 according to the provisions of clause 29(1) of United Bank of India (Employees) Pension Regulations 1995.

At this juncture I remember my long and memorable association with my beloved organization, UNITED BANK OF INDIA, its Executives, Officers and my colleagues with whom I had the opportunity to work all along. I wish the United Bank of India and all its workers an all round progress and prosperity in the year to come and bid good bye.

I would like to state that my physical condition has deteriorated to such an extent that now I remain bed ridden for months together. The entire medical record has been submitted to the bank. In view of this fact I request you earnestly to curtail the period of notice and accept my request for voluntary retirement as early as possible.

Thanking you, Yours faithfully, (MADAN MOHAN RAI) SPF A/C No. 12085 R/o RZ-C-33, Mahavir Enclave Palam, New Delhi-110045."

LETTER-2

"From: MADAN MOHAN RAI Officer, United Bank of India, 35-36, Aggarwal Bhawan, Nehru Place, New Delhi-110019.

Dated: March 29,1996.

To The General Manager, (Personnel) United Bank of India, Head Officer, 16, Old court House Street, Calcutta-700 001.

Dear Sir, Subject: Pension upon resignation for Voluntary Retirement Madan Mohan

Rai SPF A/c No. 12085

I have submitted my resignation from the Bank service for voluntary retirement vide my resignation letter dated 29.3.96 after an unblemished and clean service record of 22 years 10 months and 12 days. The same, I understand is under your active consideration.

I am a registered pensioner under the Pension Scheme of United Bank of India(Employees) Pension Regulation 1995. I hereby furnish the necessary particulars regarding my service for the purpose of calculation of pension. I also apply for commutation of pension for the period admissible under the pension rules.

                     Date of Joining of Service       :     16.5.1973
                     Date of promotion to JM, Scale:        01.02.1980
                     Present age                      :     43 years
                     Date of Birth                    :     27.3.1953.
                     Age next birthday
                     (falling on 27.03.1997)          :     44 years
                     Present Basic Pay                :     Rs.3780/-p.m
                     (since revised)
                     Date of next annual increment
                     due                              :
                     Total length of qualifying service
                     As on 29.3.1996                  :22 years, 10 months&12 days

Kindly note that the last two annual increments have not been released to the undersigned due to period of absence on sick leave.

Thanking you, Yours faithfully,

(MADAN MOHAN RAI)"

LETTER-3 "From: MADAN MOHAN RAI Officer, United Bank of India, 35-36, Aggarwal Bhawan, Nehru Place, New Delhi-110019.

Dated: March 29,1996.

To The General Manager, (Personnel) United Bank of India, Head Officer, 16, Old court House Street, Calcutta-700 001.

Dear Sir, Subject: Authority to adjust the outstanding liability against gratuity/SPF-

Madan Mohan Rai-SPF A/c No. 12085.

I have sought voluntary retirement from the bank service vide my resignation letter dated 29.3.1996.

I hereby irrevocably authorize the bank to adjust the outstanding dues, if any against the amounts due to the undersigned by way of Gratuity and Provident Fund.

Thanking you, Yours faithfully,

(MADAN MOHAN RAI)"

LETTER-4 "From: MADAN MOHAN RAI Officer, United Bank of India, 35-36, Aggarwal Bhawan, Nehru Place, New Delhi-110019.

Dated: March 29,1996.

To The General Manager, (Personnel) United Bank of India, Head Officer, 16, Old court House Street, Calcutta-700 001.

Dear Sir, Subject: Surrender of General Power of Attorney No. 51/91 Dated 20.06.1991.

Consequent upon my resignation for voluntary retirement from the Bank Service vide my resignation letter dated 29.3.1996, I hereby surrender and return the General Power of Attorney in original bearing the Registration No. 51/91 dated 03.05.1991 granted to the undersigned vide your letter No. EST/PR/CON/16/91 dated 20.6.1991.

I will be obliged if the receipt of the same is acknowledged.

Thanking you, Yours faithfully,

(MADAN MOHAN RAI)"

9. The aforesaid letters quite clearly show that the respondent-bank was

fully justified in taking up a stand that there quite clearly existed a confusion as to

whether petitioner was seeking resignation or voluntary retirement. It is not

disputed on behalf of the petitioner that different consequences flow when an

employee resigns or seeks voluntary retirement.

That there was confusion becomes clear from the fact that the petitioner after

realizing the confusion in the letters dated 29.3.1996, sent a letter dated 11.4.1996

to the respondent-bank clarifying that the word resignation has been used in the

letter dated 29.3.1996 by mistake and that portion be deleted. This letter dated

11.4.1996 of the petitioner to the respondent-bank reads as under:-

From: MADAN MOHAN RAI.

Officer, United Bank of India, Regional Office,

North India Region, 35-36, Aggarwal Bhawan Nehru Place, New Delhi-19.

Dated: April 11, 1996.

To The Chief Manager (Pension), United Bank of India, Head Office, 16, Old Court House Street, CALCUTTA-700 001.

Dear Sir SUB: MY REQUEST FOR VOLUNTARY RETIEMENT FROM BANK‟S SERVICE ORDER DATED 22.1.19 (THROUGH PROPER CHANNEL) With reference to the above I would request you to kindly ignore the word „RESIGNATION‟ and treat the same application for „VOLUNTARY RETIREMENT‟ under the UNITED BANK OF INDIA PENSION(REGULATION) 1995. The word resignation has been used in my letter dated 29.3.1996 by mistake.

I would further request your goodself to treat the notice period for my „VOLUNTARY RETIREMENT‟ from the date of my original request letter dated 29.3.1996 and oblige.

Thanking you, Yours faithfully, S/d-

MADAN MOHAN LAL SPF A/C NO. 12085 RZ-C-33 MAHAVIR ENCLAVE PALAM NEW DELHI"

10. I note that, in not one, but as many as four letters of the same date,

petitioner had used both the terms of „voluntary retirement‟ and „resignation‟. The

petitioner therefore himself realizing this ambiguity wrote this letter dated

11.4.1996 and stated that the word „resignation‟ has been used by mistake. Once

the petitioner specifically admits that there is confusion/mistake in using two

terms, I do not think it is open to the petitioner now to contend that the letters dated

29.3.1996 should only be taken as letters for voluntary retirement and that there is

no confusion.

11. Learned senior counsel for the petitioner did seek to argue on the basis

of the letter dated 2.4.1996, which is internal correspondence of the respondent-

bank, and which letter recommends the acceptance of the voluntary retirement of

the petitioner, however, this letter cannot assist the petitioner for two reasons.

Firstly, it has not been pointed out to me how this letter dated 2.4.1996 was

communicated to the petitioner. This letter is admittedly communicated to the

Chief Manager of the Personnel Administration of the Bank by the Chief Manager

of the Bank. The photocopy of the letter filed in this Court does not show that the

copy of the said letter was marked to the petitioner. Therefore, internal

correspondence of the bank cannot mean that the petitioner was communicated the

acceptance of voluntary retirement. Internal correspondence and notings unless

communicated to a person are of no legal effect and this is clear right from the

judgment of the Supreme Court in the case of Bachhitar Singh Vs. The State of

Punjab, AIR 1963 SC 395.

12. The second reason for the petitioner not being able to rely upon the

letter dated 2.4.1996 to canvass that the voluntary retirement of the petitioner was

accepted, and his earlier letters dated 29.3.1996 were for voluntary retirement, is

because it has not been pleaded and established on record that the signatory to the

letter dated 2.4.1996 is the final authority for accepting the voluntary retirement of

the petitioner. Officers of the bank can definitely take follow up action pursuant to

the letter of the petitioner as per their understanding, however, it is the authority

which accepts the voluntary retirement who has to actually and finally decide

whether the letters of the petitioner dated 29.3.1996 were resignation letters or

letters seeking voluntary retirement. Therefore, for this reason also, petitioner

cannot rely upon the internal letter of the respondent-bank dated 2.4.1996.

Therefore, I reject the argument that petitioner stood voluntarily retired in terms of

acceptance of voluntary retirement allegedly in terms of letter dated 2.4.1996 of

the respondent-bank.

13. The result of the aforesaid discussion is that before the period of three

months came to an end, the respondent-bank initiated departmental proceedings

and served the suspension order dated 3.7.1996 upon the petitioner on 5.7.1996.

Therefore, I reject the argument that the petitioner automatically got voluntary

retirement three months after 29.3.1996.

14. In my opinion, there is another reason to reject the submission made

on behalf of the petitioner that three months period expired on 29.6.1996. This is

for the reason that after seeking voluntary retirement, an employee has to work for

a period of three months. An employee cannot take up a stand that he will sit at

home without leave being sanctioned by the authority and contend that he has

served the bank for three months period for seeking voluntary retirement. The

counter-affidavit of respondent-bank in this case shows that the petitioner was

unauthorisedly absent for 17 days in this period of three months and the petitioner

has failed to substantiate as to how he was sanctioned leave of 17 days in this three

months period. Therefore in terms of the clarification issued by the respondent-

bank to the pension regulations, and which has been reproduced above, the

unauthorized period of absence of the petitioner of 17 days has to be added in the

period of three months. Once this is done, once again the period of three months

cannot expire on 29.6.1996, and if that is so, the suspension order dated 3.7.1996

falls within the period of three months or the extended period of three months plus

17 days for there not being any automatic voluntary retirement of the petitioner as

per Regulation 29 (2) as relied upon by the petitioner.

15. Thus inasmuch as the initiation of departmental proceedings against

the petitioner is concerned, the same are valid and the petitioner cannot contend

that before initiation of departmental proceedings, the petitioner is deemed to have

got voluntary retirement from the respondent-bank.

16. So far as the challenge to the disciplinary proceedings is concerned, I

may note that petitioner admittedly did not appear in the departmental proceedings,

he led no evidence, the respondent-bank led the evidence and filed documents

whereupon the Enquiry Officer gave his report and which has been accepted by the

Disciplinary Authority. I have already reproduced above the relevant portion of the

order of the Disciplinary Authority. Once there are departmental proceedings in

which a person chooses not to participate and there are no valid reasons given for

non participation, and the reason given for non participation of deemed voluntary

retirement having been held by this Court to be illegal, the petitioner cannot

successfully challenge the order of the Disciplinary Authority in the present case.

17. In view of the above, the petitions for challenging the suspension

order dated 3.7.1996 or the order of the Disciplinary Authority dated 5.6.2003 are

wholly misconceived, and are dismissed, leaving the parties to bear their own

costs.

APRIL 25, 2013                               VALMIKI J. MEHTA, J.
ib