Gauhati High Court
Page No.# 1/9 vs The Langpi Dehangi Rural Bank And Anr on 12 February, 2025
Page No.# 1/9
GAHC010195652017
2025:GAU-AS:1690
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : WP(C)/2491/2017
MUKUL KUMAR BORAH
S/O- LATE RAMDHAN BORAH, R/O- BAIDYATUP, SANKARDEV PATH, P.O-
MADHUPUR, DIST- NAGAON, ASSAM
VERSUS
THE LANGPI DEHANGI RURAL BANK and ANR.
REPRESENTED BY ITS CHAIRMAN, HEAD OFFICE, DIPHU, DIST- KARBI-
ANGLONG, ASSAM
2:THE CHAIRMAN
LANGPI DEHANGI RURAL BANK
REPRESENTED BY ITS CHAIRMAN
HEAD OFFICE
DIPHU
DIST- KARBI-ANGLONG
ASSAM
PIN- 782460
3:ASSAM GRAMIN VIKASH BANK
REPRESENTED BY ITS CHAIRMAN
HAVING ITS HEAD OFFICE AT- G.S. ROAD
BHANGAGARH
GUWAHATI
DISTRICT KAMRUP(M)
ASSAM
PIN-781005
Advocate for the Petitioner : MR.H K SHARMA, MR.B D DAS,MR.D THAOSEN,MS.R
DEKA,MR. A J SARMA,MR. P D NAIR,MR G ALAM,MR. H ROHMAN,MR. D NAG
Advocate for the Respondent : MR. A GANGULY (r-1,2), MR. A DHANUKA (r-1,2),MR.A J
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GHOSH(R- 1&2),MR.K K NANDI(R- 1&2)
BEFORE
HONOURABLE MR. JUSTICE N. UNNI KRISHNAN NAIR
ORDER
Date : 12.02.2025
Heard Mr. P. D. Nair, learned counsel for the petitioner. Also heard Mr. A.
Ganguly, learned counsel for the respondent Bank.
2. The petitioner, by way of instituting the present proceedings has presented a
challenge to a Memorandum of Charge dated 04.01.2017, by which a departmental
proceeding was initiated against the petitioner.
3. The petitioner, while serving at the Diphu Branch of the respondent no. 1
Bank was issued with a communication dated 25.08.2016, directing him to submit
his reply against the allegations so leveled against him and to explain as to why
disciplinary action should not be initiated against him for the loss sustained by the
Bank. The petitioner responded to the communication dated 25.08.2016, vide his
representation dated 29.08.2016, denying the allegation so leveled against him.
The petitioner, thereafter, on reaching the age of superannuation, retired from his
service w.e.f. 31.08.2016. Pursuant to the petitioner proceeding on
superannuation, the Chairman of the respondent no. 1 Bank issued to the
petitioner a Memorandum of Charge dated 04.01.2017, instituting a departmental
proceeding against the petitioner. The petitioner, by contending that no
departmental proceeding having been initiated against him prior to the date of his
superannuation, no such proceeding was permissible to be so instituted after his
retirement from service in terms of the provisions of the " Langpi Dehangi Rural
Bank Officer and Employees Service Regulation, 2010" (herein after referred as
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Regulation of 2010), has instituted the present proceeding.
4. Mr. P. D. Nair, learned counsel for the petitioner submits that the show-cause
notice, in the present proceeding, was issued to the petitioner on 04.01.2017,
instituting a departmental proceeding against him. However, it is submitted that
the petitioner, on reaching the age of superannuation, had retired from his services
on 31.08.2016. Accordingly, it is submitted by Mr. Nair, that the proceedings so
instituted by the petitioner would not be maintainable and would call for
interference by this Court.
5. In this connection, Mr. Nair, learned counsel for the petitioner has referred to
the provisions of Regulation 45 of the "Langpi Dehangi Rural Bank Officer and
Employees Service Regulation, 2010", which mandates that the disciplinary
proceeding can be continued even after the superannuation of the employees,
provided, such proceeding stood instituted prior to the date of retirement of such
employee. Mr. Nair, learned counsel further submits that the petitioner, before the
date of his superannuation was also not placed under suspension in connection
with the allegations so leveled against him. In view of the above, Mr. Nair, learned
counsel has submitted that the Memorandum of Charge as issued to the petitioner
on 04.01.2017, would call for an interference by this Court.
6. Mr. P. D. Nair, learned counsel for the petitioner in support of his statement
has placed reliance on the decision of the Hon'ble Supreme Court in the case of
UCO Bank and Another Vs Rajinder Lal Capoor-I, reported in (2007) 6 SCC
694.
7. Per contra, Mr. A. Ganguly, learned counsel for the respondent Bank, submits
that the departmental proceeding instituted against the petitioner stood instituted,
vide the communication dated 25.08.2016 by which the petitioner was asked to
submit his explanation with regard to the allegation of misconduct brought against
him. Mr. Ganguly, has submitted that the disciplinary authority of the petitioner, not
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being satisfied with the explanation as advanced by the petitioner, issued the
Memorandum of Charge on 04.01.2017 to the petitioner. Therefore, a
departmental proceeding, against the petitioner, must be deemed to have been so
instituted on 25.08.2016 and accordingly, the proceeding so instituted against the
petitioner would be covered by the provisions of sub-regulation (3) of Regulation
45 of the said Regulation of 2010.
8. I have heard the learned counsels appearing for the parties and perused the
materials available on record.
9. It is a settled position of law that a departmental proceeding can be stated to
have been initiated against an employee only on the date when the Memorandum
of Charge/Charge-sheet/Show-cause, is so issued to the petitioner. The law as laid
down in this connection by the Hon'ble Supreme Court in the case of Union of
India Vs K. V. Jankiraman, reported in (1991) 4 SCC 109, continues to hold
the field.
10. The provisions of Regulation 45 of the said Regulation of 2010, being
relevant is extracted herein below:-
"Disciplinary proceedings after retirement:
(1) An officer or employee who is under suspension on a charge of
misconduct and who attains the age of superannuation shall be
deemed to be in service even after the age of superannuation for the
specific purpose of continuation and conclusion of the disciplinary
proceedings and issue of final orders thereon.
(2) The officer or employee who is under suspension shall not be eligible
for any subsistence allowance for the period beyond the date of
superannuation.
(3) The officer or employee against whom the disciplinary proceeding has
been initiated shall cease to be in service on the date of
superannuation but the disciplinary proceeding shall continue as if he
was in service until the proceedings are concluded and final order is
passed in respect thereof.
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(4) The officer or employee against whom disciplinary proceedings has
been initiated shall not receive any pay and/or allowances after the
date of superannuation and also not be entitled for the payment of
retirement benefits till the proceeding is completed and final order is
passed thereon except his own contribution to contributory Provident
Fund (CPF)."
11. A perusal of the provisions of Sub-Regulation (1) of Regulation 45 would go
to reveal that in case of a person who is been placed under suspension on a
charge of misconduct and who thereafter, attains his age of superannuation, shall
be deemed to be in service even after reaching the age of superannuation for the
purpose of continuation and conclusion of the departmental proceeding and
issuance of final orders thereon.
12. Sub-regulation (3) of Regulation 45 of the said Regulation of 2010, further
provides that an employee against whom disciplinary proceeding has been initiated
prior to the date of his superannuation shall cease to be in service after the date of
superannuation, but the disciplinary proceeding so instituted shall continue by
deeming such employee to be in service.
13. In the case on hand, the petitioner was not placed under suspension prior to
his date of superannuation, which so occasioned on 31.08.2016 and accordingly,
the provisions of Sub-Regulation (1) of Regulation 45, would not be attracted to
the case of the petitioner herein. The departmental proceeding, in respect of the
petitioner having been instituted only on 04.01.2017, with the issuance of the
Memorandum of Charge, the petitioner having superannuated prior thereto, i.e.
w.e.f. 31.08.2016; the provisions of Sub-Regulation (3) of Regulation 45 also
cannot be deemed to be attracted in respect of the petitioner, herein.
14. The contention of Mr. Ganguly, learned counsel, that in respect of the
petitioner, the respondent authorities had instituted the disciplinary proceeding
w.e.f., 25.08.2016, when he was issued with an explanation call letter and the
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same having been culminated in the issuance of the Memorandum of Charge dated
04.01.2017, the case of the petitioner is to be deemed to be covered by the
provisions of Sub-Regulation(3) of Regulation 45 and accordingly, the departmental
proceeding so instituted against the petitioner be permitted to be taken to its
logical conclusion, is being considered only to be rejected, inasmuch as, the
provisions of the Service Regulations do not make any stipulation to the effect that
a departmental proceedings would stand initiated on issuance of a notice to the
delinquent to show-cause as to why disciplinary proceedings shall not be issued to
him. Sub-Regulation(3) of Regulation 45 of the Regulation of 2010, only mandates
that an Officer or employee of the Bank against whom disciplinary proceedings
have been initiated shall cease to be in service on the date of superannuation but,
the disciplinary proceedings shall continue as if he was in service until conclusion
of the proceedings and passing of final orders thereon. It is clear from the decision
of the Hon'ble Supreme Court in the case of K. V. Jankiraman (supra) that a
disciplinary proceeding would stand instituted only on issuance of Memorandum of
Charge/Charge-sheet/Show-cause to the delinquent concerned. In the case on
hand, the Memorandum of Charge having been issued only on 04.01.2017, the
disciplinary proceeding against the petitioner cannot be deemed to have been so
instituted from a date prior thereto.
15. The Hon'ble Supreme Court in the case of Rajinder Lal Capoor-I (supra)
while considering a provision similar to the Sub-Regulation(3) of Regulation 45 of
the said Regulation of 2010 so existing in the UCO Bank Officer Employees' Service
Regulations, 1979 had drawn the following the conclusions:-
"23. An order of dismissal or removal from service can be passed only when
an employee is in service. If a person is not in employment, the question of
terminating his services ordinarily would not arise unless there exists a
specific rule in that behalf. As Regulation 20 is not applicable in the case of
the respondent, we have no other option but to hold that the entire
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proceeding initiated against the respondent became vitiated in law."
16. The UCO Bank authorities being aggrieved by the said decision had
approached the Hon'ble Supreme Court by way of review petition. The Hon'ble
Supreme Court had considered the said review petition in the case of UCO Bank
Vs Rajinder Lal Capoor-II, reported in (2008) 5 SCC 257. The Hon'ble
Supreme Court, on considering its decision in the case of Rajinder Capoor-
I(supra), proceeded to draw the following conclusions:-
"20. The 1976 Regulations provide for the mode and manner in which a disciplinary
proceeding is initiated. It expressly provides for service of charge-sheet. Service of
charge-sheet is a necessary ingredient for Initiation of disciplinary proceedings. A
preliminary enquiry is not contemplated under the 1976 Regulations. If such an
enquiry is held, the same is only for the purpose of arriving at a satisfaction on the
part of the disciplinary authority to initiate a proceeding and not for any other
purpose.
21......................................................................................................
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29. In terms of the 1976 Regulations drawing up of a charge-sheet by the
disciplinary authority is the first step for initiation of a disciplinary proceeding.
Unless and until, therefore, a charge-sheet is drawn up, a disciplinary proceeding
for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge-
sheet, therefore, is the condition precedent for initiation of a disciplinary
proceeding. We have noticed in para 15 of our judgment that ordinarily no
disciplinary proceedings can be continued in absence of any rule after an employee
reaches his age of superannuation. A rule which would enable the disciplinary
authority to continue a disciplinary proceeding despite the officers reaching the age
of superannuation must be a statutory rule. A fortiori it must be a rule applicable to
disciplinary proceedings.
30. There cannot be any doubt whatsoever that the employer may take resort to a
preliminary inquiry, but it will bear repetition to state that the same has a limited role
to play. But, in absence of the statutory rules operating in the field, resorting to a
preliminary enquiry would not by itself be enough to hold that a departmental
proceeding has been initiated.
31. Initiation of a disciplinary proceeding may lead to an evil or civil consequence.
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Thus, in absence of clear words, the court must lean in favour of an interpretation
which has been applied by this Court in the main judgment."
17. The Division Bench of the Hon'ble Supreme Court, while considering the
decisions rendered in the case of Rajinder Lal Capoor-I(supra) and Rajinder
Lal Capoor-II(supra) had doubted the correctness of the view so expressed in
the said two decisions and accordingly, a reference came to be made before the
larger Bench. The Full Bench of the Hon'ble Supreme Court, in the case of Canara
Bank Vs D.R.P. Sundharam, reported in (2016) 12 SCC 724, on considering
its decisions in the case of Rajinder Lal Capoor-I(supra) and Rajinder Lal
Capoor-II(supra) had concluded as follows:-
"8. On an exhaustive consideration of the manner in which the provisions have been
analysed and the clear and unambiguous language of the same and also having
regard to the provisions of the 1976 Regulations of the Bank with regard to initiation
of disciplinary proceeding we have no doubt in our mind that the meaning given to
the provisions of the Regulations in the said case is correct and does not require
any reconsideration. From the above it would follow that by virtue of the provisions
contained in Regulation 20(3) (iii), a disciplinary proceeding initiated by means of a
charge-sheet prior to the retirement of a bank employee would continue even after
his retirement in view of the deeming provision contained in the said Regulation
20(3)(iii) by which the officer is deemed to continue in service till completion of the
proceedings.
9. In the present case, the proceedings have been initiated by submission of the
charge-sheet after the retirement of the respondent. Having regard to the fact that
the Regulations in force in Canara Bank are pari materia with those in UCO Bank
considered in the aforesaid decision, we deem it appropriate to affirm the orders of
the High Court and dismiss the appeal."
Accordingly, the decisions rendered in the case of Rajinder Lal Capoor-
I(supra) and Rajinder Lal Capoor-II(supra), were held by the Full Bench to
not require any reconsideration.
18. Applying the decisions of the Hon'ble Supreme Court in the above noted
cases, to the facts involved in the present proceeding, it being clear that the
Memorandum of Charge dated 04.01.2017 was admittedly issued to the petitioner,
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after the date of his superannuation from service, the same would not be
maintainable in the light of the provisions of Sub-Regulation (3) of Regulation 45
of the said Regulation of 2010.
19. In view of the above conclusions reached herein above, the Memorandum of
Charge dated 04.01.2017, having concluded to be not maintainable, the same
stands set aside.
20. The petitioner would now be released his retirement benefits by holding that
no departmental proceeding was pending against the petitioner on the date of his
superannuation. The retirement benefits of the petitioner be computed and
released to him within a period of 3(three) months from the date of receipt of a
certified copy of this order.
21. With the above observations and directions, the writ petition stands disposed
of.
JUDGE
Comparing Assistant
