Orissa High Court
Bhimasen Gochayat vs Zonal Manager Bank Of India Respondents ... on 3 March, 2017
Author: Vineet Saran
Bench: Vineet Saran
ORISSA HIGH COURT: CUTTACK
W.A. No. 373 of 2013
In the matter of an appeal under Clause-10 of the Letters Patent
read with Article 4 of the Orissa High Court Rules, 1948 from the
order dated 27.06.2013 passed by the learned Single Judge in
WP(C) No.18142 of 2011.
AFR ----------
Bhimasen Gochayat ......... Appellant
-versus-
Zonal Manager, Bank of India, ......... Respondents
Orissa Zone & another
For Appellant : M/s. S.Ch. Puspalak & A.K. Tarai,
Advocates
For Respondents : M/s. G.A.R. Dora (Sr. Advocate) &
Mrs. G.Rani Dora, Advocates
PRESENT:
THE HON'BLE THE CHIEF JUSTICE MR. VINEET SARAN
AND
THE HON'BLE DR. JUSTICE B.R.SARANGI
DECIDED ON : 03.03.2017
DR. B.R.SARANGI, J.The appellant, who was appointed initially as a part time sweeper on 23.05.1973 in Bank of India, Basta Branch, Balasore and subsequently got promoted to the post of Daftary, for committing fraud on the bank, was prosecuted under Sections 2 468/419/420 of the I.P.C. in G.R. Case No.1049 of 1982 on the court of learned J.M.F.C., Balasore and was convicted and sentenced to rigorous imprisonment for three years for the said offence by judgment dated 26.08.1987. After initiation of prosecution, the appellant was placed under suspension and, being convicted, was dismissed from service with effect from 26.08.1987 as per the Bank of India Employees' Pension Regulations, 1995 (for short "Bank's Regulation"). The appellant challenged the order of conviction in Criminal Appeal No.60 of 1984, which was allowed by the Additional Sessions Judge, Balasore by judgment dated 14.03.1989 and consequentially, the appellant was acquitted of the charges.
2. After acquittal in appeal, the bank initiated a disciplinary proceeding against him and issued charge-sheet-cum- suspension order suspending him with effect from 12.12.1982. Subsequently, in the disciplinary proceeding, the appellant was found guilty and was dismissed from service by order dated 11.05.1991. Challenging the said order of dismissal, the appellant preferred an appeal as per the Bank's Service Rules, but the appellate authority by order dated 28.04.1995 modified the order of dismissal from service to termination of service with three months pay and allowance in lieu of notice. Being aggrieved by order of 3 punishment imposed by the appellate authority, the appellant preferred O.J.C. No.3143 of 1997 before this Court which was allowed vide judgment dated 15.03.2007 with direction to reinstate the appellant with 40% back wages and consequential benefits from the date of dismissal to the date of reinstatement.
3. Challenging the said judgment dated 15.03.2007 passed in O.J.C. No.3143/1997, the respondent-Bank approached the apex Court by filing SLP No.7357/2007. The apex Court disposed of the said SLP on 12.08.2009 by setting aside the judgment dated 15.03.2007 passed in O.J.C. No.3143/1997 and remanded the matter for fresh disposal by this Court. Accordingly, the matter was heard afresh and, ultimately, this Court vide order dated 14.03.2010 dismissed the writ petition (O.J.C. No.3143/1997) by holding that the charges proved against the appellant were quite grave and the punishment of dismissal from service did not seem to be disproportionate. Against the said judgment, the appellant preferred SLP No.1859/2010 before the apex Court, which was dismissed on 13.12.2010. After dismissal of SLP preferred by the appellant, he approached the authority for pension/compassionate allowance under Regulation 31 of the Bank of India Employees' Pension Regulations, 1995 by way of filing a representation on 22.12.2010. As no action was taken on his representation, the 4 appellant filed W.P.(C) No.3804 of 2011, which was disposed of by this Court directing the Bank authority to dispose of the said representation within a period of two months. Consequentially, the respondent-bank disposed of the representation vide order dated 07.06.2011 rejecting the claim of the appellant stating inter alia that the appellant was originally governed under Bank's Contributory Provident Fund Regulations and had received full amount of CPF on 25.06.2000, as such he had never exercised his option for pension after coming into force of the Bank's Regulation and, therefore, the appellant was not entitled to any pension.
4. So far as the claim made by the appellant for grant of compassionate allowance is concerned, the respondent-Bank observed in the said order dated 07.06.2011 that the charges against the appellant were very serious in nature involving fraud, forgery, misappropriation, theft of CANPAD and his punishment was upheld by this Court, as well as the apex Court. Therefore, he does not "deserve special consideration" for sanction of compassionate allowance. Against such rejection of representation dated 07.06.2011, the appellant preferred W.P.(C) No. 18142 of 2011 and the said writ petition was dismissed vide judgment dated 27.06.2013, which is impugned in the present appeal. 5
5. Mr. S. C. Puspalak, learned counsel for the appellant strenuously relied upon Regulation-31 of Bank's Regulation, which provides for sanction of compassionate allowance in favour of an employee who has been terminated from service. To be more specific, he placed reliance upon sub-clause (ii) of Clause-(1) of Regulation-31 and stated, inter alia, that the case of the appellant falls within the description "deserving of special consideration" and as such is entitled to get compassionate allowance not exceeding two-thirds of pension which would have been admissible to him on the basis of the qualifying service rendered up to the date of his dismissal, removal or termination. It is further contended that the description "deserving special consideration" has not been defined anywhere in Bank's Regulation, as referred to, nor is there any guideline to consider the same. He also further contended that due to non-availability of the definition of the description "deserving special consideration", as specified in Regulation-31, the appellant is entitled to get compassionate allowance. In support of his contention, he has referred to the judgment of a Division Bench of Delhi High Court in Ex. ASI Shadi Ram v. Government of NCT of Delhi and others, (2009) 4 SLR 52.
6. Mr. G.A.R. Dora, learned Senior Counsel appearing for the respondent-Bank vehemently urged that the punishment of 6 dismissal can be awarded to an employee for any gross misconduct enumerated in Regulation-5 of the Bank's Regulation. All such gross misconducts cannot be of the same gravity and, therefore, in case, the misconduct consists of fraud, forgery and misappropriation, which are prejudicial to the interest of the Bank or causes serious loss, the case may fall outside the expression "deserving special consideration" and the authority in its discretion may refuse to sanction compassionate allowance. Thereby, for non- sanction of compassionate allowance in terms of Regulation-31 of the Bank's Regulation by passing an order on 07.06.2011 by the Zonal Manager of the Bank rejecting the representation of the appellant, no illegality or irregularities can be said to have been committed and, as such, learned Single Judge is justified in passing the judgment impugned before this Court in appeal.
7. We have heard Mr. S.Ch. Puspalak, learned counsel for the appellant and Mr. G.A.R. Dora, learned Senior Counsel appearing for the respondents and perused the records. Pleading between the parties having been exchanged, the matter is being disposed of at the stage of admission with the consent of the parties.
7
8. Both the counsel have admitted the factual position, as enumerated above. But, the only consideration is to be made whether the appellant is entitled to get compassionate allowance in view of Regulation-31 of Bank's Regulation, which is reproduced below:
"31. Compassionate Allowance:
(1) An employee, who is dismissed or removed or terminated from service, shall forfeit his pension:
provided that the authority higher than the authority competent to dismiss or remove or terminate him from service may, if
(i) Such dismissal, removal, or termination is on or after the 1st day of November, 1993 and
(ii) the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of the qualifying service rendered up to the date of his dismissal, removal or termination."
9. On perusal of the aforesaid Regulation, it appears that an employee, who is dismissed or removed or terminated from service after the 1st day of November, 1993 may be granted compassionate allowance, in case the authority concerned considers his case to be one "deserving special consideration", at the rate not exceeding two-thirds of pension which would have 8 been admissible to him on the basis of qualifying service rendered up to the date of dismissal or removal or termination.
10. In view of such provision, the meaning attached to the description "deserving special consideration" provided in Regulation-31 of Bank's Regulation is to be considered, in absence of any specific definition in Bank's Regulation vis-à-vis any guideline issued by the Bank to that effect. The plain dictionary meaning of word "deserve" is as follows:
"To be entitled to by merit, to warrant, be worthy of, to be worthy of reward, justly, accordingly to what is deserved."
In British English "Deserve" means-
"to have earned or to be given something because of the way you have behaved or the qualities you have."
"Deserving" is defined in Dictionary. Com as follows:
"qualified for or having a claim to reward, assistance, etc. because of one's actions, qualities, or situation, meriting; worthy."
In Dictionary.com "Deserve" means:
"to merit, be qualified for, or have a claim to (reward, assistance, punishment, etc.) because of actions, qualities or situation, to be worthy of, qualified for, or have a claim to reward, punishment, recompense, etc."
Collins English Dictionary defines the meaning of the word "Deserve" as follows:
"To be entitled to or worthy of; merit, to be worthy"
"Deserve" in American English means 9 "to have a right to because of acts or qualities; be worthy of (reward, punishment, etc.); merit, to be worthy."
In Marriam-Webster, definition of "Deserve" is as follows:
"to be worthy of, to be worthy, fit, or suitable for some reward or requital."
In Hameedia Hardware Stores v. B. Mohanlal Sowcar, AIR 1988 SC 1060(1061): (1988) 2 SCC 513, the apex Court has considered the word "deserve" means "to have a rightful claim" or "a just claim".
11. Applying the above meaning of "deserve" to the present expression "deserving of special consideration", it is to be considered to mean to have a rightful claim of special consideration or a just claim of special consideration. Considering such meaning, it is to be examined whether the appellant is entitled to get such benefit under Regulation-31 of the Bank's Regulation. In other words, if an employee, who committed gross misconduct enumerated in Regulation-5 of the Bank's Regulation and faced dismissal, or removal, or termination from service on or before 1st November, 1993 can be entitled to get compassionate allowance, if it comes within the domain of expression "deserving special consideration". The gross misconduct cannot be of the same gravity and, therefore, in case of misconduct consists of fraud, forgery and 10 misappropriation which are prejudicial to the interest of the bank or causes serious loss, the case may not come within the purview of expression "deserving special consideration", otherwise meaning to have a rightful claim of special consideration. This apart, the authority, by using the word "may", has been vested with the power of discretion. In exercise of such power, the authority may or may not exercise its discretion to grant compassionate allowance in case of "deserving special consideration" under Regulation 31 of Bank's Regulation.
12. In Union of India v. Kuldeep Singh, (2004) SCC 590 (599), the apex Court held that the word "discretion" signifies unrestrained exercise of choice or will; freedom to act according to one's own judgment; unrestrained exercise of will; the liberty or power of acting without control other than one's own judgment.
13. The apex Court in Reliance Airport Developers Pvt. Ltd. V. Airports Authority of India, JT 2006 (10) SC 424 held that "discretion" literally means and denotes an uncontrolled power of 'disposal' yet in law, the meaning given to this word appears to be a power decide within the limits allowed by positive rules of law as to the punishments, remedies or costs. This would mean that 11 even if a person has discretion to do something, the said discretion has to be exercised within the limit allowed by positive rule of law.
14. Considering the aforementioned meaning attached to the words employed in the Regulation 31, so far as exercise of discretionary power in respect of expression "deserving special consideration" for grant of compassionate allowance is concerned, if the authority has taken a decision in disposing of the representation filed by the petitioner within its limits by considering the extant rules, this Court is of the firm view that the appellant, having indulged in committing forgery which is not coming within the purview of misconduct, as enshrined in the Bank's Regulation, and as such is prejudicial to the interest of the bank and causes serious loss, the impugned refusal order passed by the respondent- bank to grant / sanction compassionate allowance cannot be faulted.
15. So far as applicability of the judgment in Ex.ASI Shadi Ram (supra), in which Rule-41 of the CCS (Pension) Rules, 1972, as well as a pari materia expression "deserving special consideration" for grant of compassionate allowance was under
consideration, is concerned, the Government of India has also issued office memorandum formulating "Guiding principles for 12 grant of compassionate allowance" which was considered by the apex Court in paragraph-9 of the said judgment and has also been referred to by the learned Single Judge in the impugned judgment. If such office memorandum, which has been issued in the shape of guideline, will be taken into consideration, that itself illustrative in nature which will be taken into consideration in determining in a particular case deserving for special consideration.
16. In view of such position, we are of the considered view that the learned Single Judge has not committed any error in dismissing the case of the appellant so as to warrant interference by this Court in appeal. Therefore, while confirming the judgment dated 27.06.2013 passed by the learned Single Judge, this Court is not inclined to entertain this writ appeal.
17. Accordingly, the writ appeal is dismissed. No order as to cost.
Sd/-
VINEET SARAN CHIEF JUSTICE Sd/-
DR. B.R.SARANGI, JUDGE Orissa High Court, Cuttack The 3rd March, 2017, Alok/GDS True copy Secretary 13