Madhya Pradesh High Court
Narmada Prasad Choudhary vs Bank Of India on 23 November, 2023
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE 23rd OF NOVEMBER, 2023
WRIT PETITION NO.3428 OF 2021
BETWEEN:-
NARMADA PRASAD CHOUDHARY S/O LATE SHRI V.L.
CHOUDHARY, AGED 67 YEARS, OCCUPATION:
PENSIONER, R/O 468, "NIRMAL CHHAYA", STATE
BANK COLONY, JANKI NAGAR ROAD, VIJAY NAGAR,
JABALPUR (MADHYA PRADESH)
... PETITIONER
(IN PERSON)
AND
1. BANK OF INDIA THROUGH IT'S ASSISTANT
GENERAL MANAGER, BANK OF INDIA, HEAD OFFICE,
STAR HOUSE, 8TH FLOOR (WEST) WING, C-5, "G"
BLOCK, BANDRA KURLA COMPLEX, BANDRA EAST,
MUMBAI 400051
2. ZONAL MANAGER & APPELLATE AUTHORITY,
BANK OF INDIA, ZONAL OFFICE, RAIPUR ZONE,
SHESH NILAYAM, TATYAPARA, RAIPUR
(CHATTISGARH) 492001
... RESPONDENTS
(BY SHRI ANOOP NAIR - ADVOCATE)
................................................................................................................................................
2
Reserved on : 19.04.2023
Pronounced on : 23.11.2023
................................................................................................................................................
This petition having been heard and reserved, coming on for
pronouncement this day, the court pronounced the following:
ORDER
Pleadings are complete and as per the request made by the
petitioner, the matter is heard finally.
2. This petition under Article 226 of the Constitution of India has been
filed by the petitioner claiming following relief:-
"i) To quash the impugned order dated 15/09/2020 & 31/07/2013 (Annexure
P/1 & P/16) of Respondents and direct for payment of salary &
allowance/consequential and terminal dues for the total service period from
08/07/1974 to 30/06/2013 by including the length of service period from
07/01/2002 to 17/09/2009.
ii) This Hon'ble Court may kindly be pleased to direct the Respondents to
pay all the arrears of Fitment/appropriate pension/Gratuity/Commutation/leave
encashment/refund the salary 2,05,000/- (deducted for 07 months 05 days)
between the period 07/01/2022 to 30/06/2013 with all the consequential &
promotional benefits alongwith 20% interest p.a. from 07/01/2002 till actual
payment.
iii) Any other relief/ orders/ direction/ directions which this Hon'ble Court
deems just and proper may also be passed in the interest of justice.
iv) Heavy cost of the petition may also be granted to the petitioner.
v) To quash the respondent's Appellate order dated 10/10/2009 (Annexure
P/12) & Review order dated 21/06/2010 (Annexure P/13) and respondents be
also directed to pay arrears of salary/Fitment & revised monthly pension after
re-calculation of appropriate Basic Pay from 07/01/2002 to 30/06/2013 and
arrears of pension on revised basic pay from 01/07/2013 till date of actual
payment alongwith an interest @ 20% p.a. from 07/01/2002 in the interest of
justice."
3. The case has a checkered history, therefore, necessary facts in
nutshell which are required to be mentioned, are that the petitioner who
was an officer of respondent/Bank holding the post of Senior Manager,
faced a disciplinary proceeding, in which punishment of compulsory
retirement was passed by the disciplinary authority. The order of
compulsory retirement was assailed by the petitioner in a writ petition
registered as W.P. No. 681 of 2003 before this Court which was finally
heard and allowed vide order dated 01.12.2004, setting-aside the order of
compulsory retirement and also set-aside all consequential orders passed
by the authority, remitting the matter back to the disciplinary authority to
impose adequate punishment, which would be proportionate to the
delinquency proved, making it clear that the disciplinary authority would
not impose the punishment of dismissal, removal, compulsory retirement
and reversion. It was further directed that the order of punishment shall be
passed after reinstating the petitioner in service. The petitioner was not
granted any backwages.
4. The said order of writ Court was assailed by the respondent/Bank by
filing a writ appeal i.e. W.A. No.107 of 2007, which has been dismissed
vide judgment dated 11.09.2007 and the matter was remitted back to the
appellate authority to decide the quantum of punishment to be imposed on
the employee after keeping in mind the observation made by the Court in
writ appeal, within a period of two months of receipt of certified copy of
the judgment. The SLP preferred against the said order of Division Bench
was also dismissed by the Supreme Court. The appellate authority,
thereafter, complied with the direction given by the High Court and passed
an order of punishment on 10.10.2009 in the following manner:-
" "Reduction of basic pay to the first stage of Officers' cadre Junior
Management Scale I for further three years with cumulative effect, with
immediate effect in terms of Regulation 4(f) of Bank of India Officer
Employees' (Discipline and Appeal) Regulations, 1976". Accordingly, the basic
pay of Shri N.P. Choudhary will be fixed at Rs.10,000/-. "
Although review was preferred against the said order, but that has been
dismissed.
5. The petitioner was, thereafter, informed vide letter dated 31.07.2013
(Annexure-P/16) giving details of his service, in which it is shown that the
order of compulsory retirement was passed on 07.01.2002. It was further
mentioned in the said letter that the petitioner joined services with the
Bank on 08.07.1974; the order of compulsory retirement was passed on
07.01.2002; the order of reinstatement was passed on 18.09.2009 and the
petitioner retired on 30.06.2013. Total period of service was 38 years 11
months and 22 days, but the period of compulsory retirement i.e. 7 years
11 months and 11 days and total service after deduction of said period was
calculated for payment of gratuity as qualifying service was 30 years 8
months and 6 days. Service ranking for gratuity is 31 years. In the said
letter, the amount of gratuity payable to the petitioner was calculated as
Rs.7,93,722/- and amount of gratuity already paid to him was
Rs.2,42,069/-, as such, remaining amount of gratuity i.e. Rs.5,51,653/- is
credited in his account.
6. Thereafter, the petitioner represented the respondents for release of
arrears and also the order of permission which was kept under sealed cover
and asking that he may be granted full gratuity, leave encashment for 8
months' salary, monthly pension of basic pay of Rs.79,310/- and also
claimed refund of Rs.2,05,000/- which was illegally deducted from his
salary in the name of LWP (Leave Without Pay) whereas there was
sufficient leaves in his credit.
7. The main grievance as has been raised by the petitioner is that the
respondent/Bank unnecessarily reduced the period of service i.e. 7 years 8
months and 11 days whereas his total service was 38 years 11 months and
22 days. It is his grievance that the order of punishment for compulsory
retirement was passed keeping him away from service for a period of 7
years 8 months and 11 days, but according to the petitioner, that period
cannot be reduced from his service because the order of compulsory
retirement was set-aside by this Court with a direction to reinstate him in
service. The petitioner has also challenged the order of punishment passed
by the appellate authority in pursuance to the orders of writ Court and
Division Bench on the ground that such type of punishment is unknown to
law and also placed reliance upon the judgment of Supreme Court reported
in (2012) 5 SCC 242 parties being Vijay Singh Vs. State of Uttar
Pradesh & Others; the orders passed by Delhi High Court in W.P. No.(c)
625 of 2016 parties being V.K. Malhotra Vs. Union Bank of India;
(2010) 11 SCC 71 parties being South Bengal State Transport
Corporation Vs. Ashok Kumar Ghosh & Others; (1999) 5 SCC 762
parties being Bank of India & Another Vs. Degala Suryanarayana;
order passed in SLPC No.1414-16 of 1998 parties being Kuldeep Singh
Vs. Commissioner of Police.
8. However, the petitioner by way of amendment in the petition, filed
in the year 2021, amended the relief clause and also challenged the validity
of order dated 10.10.2009 passed by the appellate authority and order
passed in Review Petition on 21.06.2010, mainly on the ground that the
punishment inflicted by the appellate authority is unknown to law,
therefore, said punishment deserves to be set-aside.
9. The respondents have filed their reply opposing the submissions
made by the petitioner and raised objection with regard to the challenge
made by the petitioner about the order passed by appellate authority on
10.10.2009 saying that the said order has been assailed by the petitioner in
the year 2021 and there was no explanation given by the petitioner about
the delay, therefore, the petition deserves to be dismissed on the ground of
delay and laches. It is also submitted that the petitioner has been paid
retiral dues as per his entitlement. It is further stated by the respondents
that the order of punishment passed by the appellate authority is not
unknown, but it falls within the punishment prescribed under Regulation
4(f) of the Bank of India Officer Employees' (Discipline & Appeal)
Regulations, 1976 (hereinafter referred to as 'the Regulations, 1976'). It is
stated by the respondents that the petitioner did not perform the duties
from 07.01.2002 to 17.09.2009, therefore, benefit of that period cannot be
granted to him and that period, hence, has been deducted from the total
length of service. The petitioner reported on duty w.e.f. 18.09.2009 and
retired on 30.06.2013, therefore, according to the respondents, the
petitioner was not eligible for CRS pension. According to the respondents,
the period for which the petitioner did not perform the duties, would not be
counted for the purpose of calculation of leave and other benefits.
10. Learned counsel for the respondents has supported the stand taken in
the reply and also contended that the relief claimed by the petitioner by
way of amendment, is barred by time, which cannot be considered and the
petitioner cannot be granted any benefit for the reason that the order passed
in the year 2009 is being assailed in the year 2021 without there being any
sufficient explanation for delay. He has also submitted that the punishment
is not unknown to law, but as per the bylaws i.e. Regulations, 1976,
punishment is provided under Regulation 4(f), therefore, there is nothing
illegal.
11. Petitioner has also filed the rejoinder wherein he has opposed the
submissions made by the respondents in their reply and reiterated the facts
mentioned in the petition.
12. Considering the submissions made by learned counsel for the
respondents and the objection raised with regard to delay and laches, I find
substance in the submissions for the reason that the punishment inflicted
upon the petitioner by the appellate authority in the year 2009 has not been
assailed by him for almost 12 years, as such, in absence of any specific
reason or any sufficient ground, such delay cannot be condoned, therefore,
this Court will not entertain such relief which has been amended in the
year 2021 seeking quashing of order of punishment passed on 10.10.2009,
as such, the petition to the extent of claiming relief for quashing of order
dated 10.10.2009, is dismissed.
13. Further, in view of the rival submissions of the parties and perusal of
record, apparently the punishment inflicted in a disciplinary proceeding
initiated against the petitioner, was set-aside by the writ Court with
following observations:-
"12. In view of the aforesaid analysis, I am inclined to quash the order of
compulsory retirement, Annexure-P/25 and affirmation thereof, contained in
Annexure-P/30. As a logically corollary, all subsequent orders passed on review
and mercy petition would also pave the path of extinction. The matter is
remitted to the disciplinary authority to impose adequate punishment which
would be proportionate to the delinquency proved. However, the disciplinary
authority would not impose the punishment of dismissal, removal, compulsory
retirement and reversion. The order of punishment shall be passed after
reinstating the petitioner in service. The petitioner shall not be entitled to any
backwages."
14. Thereafter, the Division Bench in writ appeal preferred by the
respondent/Bank, although dismissed the same, but with following
observations:-
"33. We are unable to accept the submission of Mr. Nagu. The respondent
was promoted from the clerical grade to the officer's grade and was not a direct
recruit to the officer's grade and hence the order of reversion would not amount
to an order of removal. In Union of India and another vs. G. Ganayutham
(supra) cited by him, the Supreme Court has held in para 34 of the judgment as
reported in (1997) 7 SCC 463 at p. 480 that where the punishment is held to be
irrational as per Wednesbury or CCSU norms and is quashed, the matter has to
be remitted to the appropriate authority for reconsideration and it is only in very
rare cases that the Court might to shorten litigation think of substituting its own
view as to the quantum of punishment in the place of the punishment awarded
by the competent authority. Similarly, in State Bank of India and others vs.
Samarendra Kishore Endow and another (supra) cited by Mr. Nagu quoted
above, the Supreme Court after holding that the punishment of removal
imposed upon the respondent was harsh held that this is a matter which the
disciplinary authority or the appellate authority should consider and the proper
course to be adopted in such situations would be to send the matter either to the
disciplinary authority or the appellate authority to impose appropriate
punishment."
Thus, it is clear that the order of compulsory retirement was set-aside
directing reinstatement of the petitioner in service and as such, the period
during which the petitioner was out from service and has not performed the
duties, cannot be reduced from his total qualifying service and also cannot
be deducted from the length of service of the petitioner. Therefore, I am of
the opinion that the petitioner shall be granted not only the benefit of his
retiral dues but also the benefit for which he was otherwise entitled during
the course of employment treating him to be in service without taking into
account the order of compulsory retirement because that order is ultimately
set-aside by the Court. In my opinion, the action of the respondents for not
counting the services of the petitioner for the period when he was not in
the employment due to order of compulsory retirement, is not proper for
the reason that the said order was set-aside by the Court directing
reinstatement of the petitioner, which does not mean that the petitioner has
to be treated not in service during that period and direction for
reinstatement cannot be treated to be an order for giving fresh appointment
to the petitioner, therefore, the petitioner is entitled for the benefit of said
period and as such, calculation made in the impugned letter dated
31.07.2013 (Annexure-P/16) is not sustainable and is hereby set-aside. The
letter dated 15.09.2020 (Annexure-P/1) to the extent of mentioning that
petitioner was compulsorily retired from Bank's service on 07.01.2002 and
later reinstated in the Bank w.e.f. 18.09.2009 is also illegal and is hereby
set-aside.
15. Moreover, since the order of compulsory retirement has been set-
aside, therefore, in the light of the judgment passed by the Supreme Court
in the case of Shobha Ram Raturi Vs. Haryana Vidyut Prasaran
Nigam Limited and Others reported in (2016) 16 SCC 663, the period
when the petitioner remained out from service, shall be treated to be on
duty and even otherwise, he is entitled to get the backwages for the said
period. The Supreme Court has held as under:-
"3. Having given our thoughtful consideration to the controversy, we are
satisfied, that after the impugned order of retirement dated 31-12-2002 was set
aside, the appellant was entitled to all consequential benefits. The fault lies with
the respondents in not having utilised the services of the appellant for the period
from 1-1-2003 to 31-12-2005. Had the appellant been allowed to continue in
service, he would have readily discharged his duties. Having restrained him
from rendering his services with effect from 1-1-2003 to 31-12-2005, the
respondent cannot be allowed to press the self-serving plea of denying him
wages for the period in question, on the plea of the principle of "no work no
pay". "
16. The Division Bench of this Court in the case of Mahesh Prasad
Dwivedi Vs. District Cooprative Central Bank Ltd., Jabalpur reported
in 2013 SCC OnLine MP 6029 has also considered this aspect for
quashing the order of compulsory retirement holding it illegal and
provided all consequential benefits as has been done in the present case.
The Division Bench has held that the intervening period when the
employee remained out of service, is entitled to get full backwages. The
Division Bench has observed as under:-
"18. If the various judgments cited by learned counsel for the parties are
scanned, it is a well settled principle of law that if an order is found to be
illegal or arbitrary and if it is quashed, all consequential benefits accruing due
to quashing of an illegal order are liable to be paid. Consequential benefit can
be denied only if the circumstances exist to say that the benefit can be denied.
19. In the present case, if the order passed by the appellate Court and the
Tribunal are analyzed, it would be seen that compulsory retirement of the
petitioner is found to be wholly unsustainable and an arbitrary decision. It is a
device to somehow remove the petitioner without conducting a departmental
enquiry and if such an order is quashed, the normal rule of reinstatement with
full backwages should be followed. Neither, the appellate Court nor the
Tribunal have given any cogent reason, justifiable in nature for denial of
backwages to the employee concerned. Even before this Court, no material or
reason is adduced by the Bank to show as to why full backwages can be denied
to the employee concerned.
20. It is a case where the employee has been compulsorily retired as a means
for removing him from service. Before doing so, the requirement of law was
not followed and even though, a departmental enquiry was initiated against
him and was pending based on the charge-sheet issued. Nothing was done and
to somehow keep him away from work, he was compulsorily retired in an
illegal manner. There are no exonerating circumstances, reasons, special in
nature or any material brought to the notice of this Court based on which the
backwages payable to the employee can be denied.
21. Once, the order of compulsory retirement is found to be unsustainable
and illegal, being in violation to legal principles, then in the absence of any
exonerating circumstances or material being available to say that the normal
rule of reinstatement with full backwages has to be deviated from following of
the normal rule is the requirement which has to be adhered to and its departure
which is an exception cannot be resorted to in a very casual or absurd manner
without any justification.
22. In view of the above, we have no hesitation in allowing this writ petition
and directing for payment of full backwages for the intervening period that is
from the date of initial compulsory retirement of the petitioner till his actual
date of superannuation.
23. Accordingly, this petition is allowed. Orders impugned passed by the
appellate Court and the Cooperative Tribunal denying full wages to the
petitioner are modified and it is directed that for the intervening period when
the employee remained out of service, full backwages after deducting the
amount already paid to be him be granted within a period of three months from
the date of receipt of certified copy of this order."
17. In view of the aforesaid enunciation of law, it is directed that the
petitioner shall be granted the benefit for the services rendered by him
counting the period when he remained out from service due to imposition
of order of compulsory retirement till the date of order of his
reinstatement. The petitioner shall be, accordingly, granted all the benefits
taking note of the order of punishment imposed by the appellate authority
in pursuance to the order of High Court.
18. Accordingly, this petition is allowed in part directing the
respondent/Bank to count the total services of the petitioner counting the
period of 7 years 8 months and 11 days to be in service and his total length
of service shall be calculated w.e.f. 08.07.1974 till 30.06.2013, as such,
retiral benefits and other pensionary benefits be calculated accordingly and
other benefits for which the petitioner is entitled, be also granted to him
treating him to be in service during that period also. The aforesaid exercise
be carried-out within a period of three months from the date of receipt of
copy of this order and whatever arrears are drawn, the same shall also be
paid to the petitioner within the aforesaid period. It is made clear that if
arrears are not paid to the petitioner within the given time, the same will
carry interest @8% per annum till the date of actual payment made to the
petitioner.
19. With the aforesaid directions, the writ petition stands partly allowed
and disposed of.
(SANJAY DWIVEDI)
JUDGE
Prachi
PRACHI PANDEY
2023.11.24 16:16:24
+05'30'
