Mahesh Kumar Sharma vs Madhya Pradesh Gramin Bank
2023 Latest Caselaw 8690 MP

                                -1-


  IN THE HIGH COURT OF MADHYA PRADESH AT
                  INDORE
                          BEFORE
         HON'BLE SHRI JUSTICE SUSHRUT ARVIND
                  DHARMADHIKARI
                              &
    HON'BLE SHRI JUSTICE PRAKASH CHANDRA GUPTA


                WRIT APPEAL No. 296 of 2023

BETWEEN:-
MAHESH KUMAR SHARMA S/O SHRI GAURISHANKAR SHARMA, AGED
ABOUT 62 YEARS, OCCUPATION: RETIRED R/O TIRUPATI ROAD MAGAJ
PURA ROAD DISTT. DHAR (MADHYA PRADESH)
                                                 .....APPELLANT
(BY SHRI AMOL SHRIVASTAVA, ADVOCATE)

AND
MADHYA PRADESH GRAMIN BANK THROUGH ITS PRESIDENT 204, C-21
BUSINESS RING ROAD RADISSON SQUARE INDORE (MADHYA
PRADESH)
                                              .....RESPONDENTS
(BY SHRI KAMLESH MANDLOI, ADVOCATE)


      Reserved on         :     15.03.2023
      Delivered on        :     14.06.2023
      This appeal having been heard and reserved for order coming
on for pronouncement this day, JUSTICE SUSHRUT ARVIND
DHARMADHIKARI pronounced the following:
                          ORDER

Heard finally with the consent.

In this Writ Appeal filed under Section 2(1) of the Madhya Pradesh Uchcha Nyayalya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2002, order dated 14.02.2023 passed in W.P. No.1529 of 2022 has been assailed, whereby the learned Single Judge has dismissed the writ petition.

02. Brief facts of the case are that the appellant stood superannuated from the services of respondent / Bank on 31.12.2019, however, he was issued with the show-cause notice dated 14.11.2019 alleging certain shortcomings in various loan accounts. In the said notice, it was stated that the same constitutes misconduct in terms of the applicable rules and the appellant was asked to show-cause against the same. The appellant filed a reply on 30.11.2019 to the show-cause notice dated 14.11.2019. In the meantime, the appellant stood superannuated from the service on 31.12.2019. The respondent withheld the pension and other retiral dues of the appellant. The respondent after 1½ years, suddenly, initiated a disciplinary proceeding against the appellant by issuing a charge-sheet dated 27.05.2021. An another show-cause notice dated 15.09.2021 was also issued to the appellant. Being aggrieved, the appellant filed the writ petition challenging the validity of charge-sheet dated 27.05.2021 and the show-cause notice dated 15.09.2021. The learned Single Judge dismissed the writ petition on the ground that it is settled law that now even after superannuation, the penalty of termination can be imposed after completion of departmental enquiry. When there are serious charges of causing loss to the Bank, then the employee should

not go freely after retirement without facing any departmental eqnuiry. Citing the provisions of Regulation 20(3)(iii) of the Service of Regulations Act, 1979, where it is mentioned the departmental proceedings will continue against the employee retired on the date of superannuation against whom the disciplinary proceedings has been initiated after issuance of charge-sheet and also relied on the explanation appended to Regulation 10 which says that the disciplinary proceedings shall be deemed to be contemplated or pending if the show-cause notice has been issued. Being aggrieved, the present writ appeal has been filed.

03. Learned counsel for the appellant contended that Regulation 45 of the Regulation of 2010 does not provide for continuation of disciplinary proceedings where an employee was not placed under suspension at any point of time. Moreover, Clause (3) & (4) of the said Regulation would only permit the authorities to treat the disciplinary proceedings as continue if the disciplinary proceeding has been initiated while employee was in service. Admittedly, in the present case, the appellant was served with a show-cause notice dated 14.11.2019, and thereafter, no charge-sheet was served. In the meanwhile, he stood superannuated on 31.12.2019. Learned counsel for the appellant contended that mere show-cause notice would not amount to continuation of disciplinary proceedings. For this purpose, he relied on a judgment of the Apex Court in the case of UCO Bank & Another v/s Rajinder Lal Capoor reported in (2007) 6 SCC 694, wherein the Apex Court has held as under:-

"The aforementioned Regulation, however, could be

invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a chargesheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. "

04. The Apex Court in the case of Coal India Limited & Others v/s Saroj Kumar Mishra reported in 2007 (5) SCALE 724 has held that "date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge- sheet isued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulation."

05. In the case of Union of India v/s Sangram Keshari Nayak reported in 2007 (6) SCALE 348, the Apex Court has held that "respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia for withholding of his pension under the

Pension Regulation could have been initiated against the respondent. Discipline and Appeal Regulations were, thus no attracted. Consequently the charge-sheet, the eqnuiry report and the orders of punishment passed by the Disciplinary Authority and the Appellate Authority must be held to be illegal and without jurisdiction."

06. In view of the aforesaid pronunciation of the Apex Court, learned counsel for the appellant contended that it is clear that the initiation of departmental proceedings occur with the issuance of charge-sheet and not merely by serving a show-cause notice. In the present case, charge-sheet was not issued while the appellant was in service which could not have been initiated after retirement. Learned Single Judge has come to a wrong conclusion that mere issuance of show-cause notice would be sufficient to continue with the disciplinary proceedings. Moreover, learned Single Judge committed grave error of law in holding that on a conjoint reading of Explanation to Regulation 10 and Regulation 45(3), the disciplinary proceedings can be said to be pending against an employee if a show- cause notice is issued to him. Learned Single Judge failed to appreciate that both the Regulations operate in different spheres and the legal fiction created by one regulation cannot be considered for the purpose of another regulation in absence of any legislative intent to the contrary.

07. Learned counsel for the respondent opposed the prayer and submitted that no perversity or illegality has been committed by the learned Single Judge and order impugned does not called for any

interference. The writ appeal deserves to be dismissed.

08. Heard learned counsel for the parties at length and perused the record.

09. It is a trite law that mere issuance of a show-cause notice could not imply that the disciplinary proceedings have been initiated. It is only when a charge-sheet is issued, it can be said that the disciplinary proceedings are in process. In the present case, admittedly, no charge-sheet was issued to the appellant prior to his superannuation. The learned Single Judge has misinterpreted the Regulation 45(3) and the Explanation appended to Regulation 10. The Apex Court in the case of UCO Bank & Another (supra) has clearly held that removal or dismissal from service cannot be imposed on an employee who has already stood retired from service. Since the appellant was allowed to superannuate and thereafter the charge-sheet was issued, only a proceeding, inter alia withholding of his pension under the Pension Regulations cannot be initiated against the appellant. Consequently, the show-cause notice and charge-sheet cannot be allowed to stand. Accordingly, the charge-sheet dated 27.05.2021 and show-cause notice dated 15.09.2021 are hereby quashed. As a consequence, order dated 14.02.2023 passed in W.P. No.1529 of 2022 is also set aside. The appellant shall be entitled for all retiral benefits in accordance with law.

With the aforesaid, Writ Appeal stands allowed.

      (S. A. DHARMADHIKARI)                         (PRAKASH CHANDRA GUPTA)
              JUDGE                                         JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2023.06.15 10:35:58 +05'30'