Karnataka High Court
Sri V.C. Chowdary S/O Late V. Veeranna vs The Indian Bank A Nationalised Bank ... on 6 August, 2007
Equivalent citations: 2007(6)KARLJ663, (2008)ILLJ770KANT
Author: D.V. Shylendra Kumar
Bench: D.V. Shylendra Kumar
ORDER D.V. Shylendra Kumar, J.
1. Writ petition by an employee of first respondent-nationalized bank, questioning the legality of the disciplinary proceedings in progress against the petitioner in terms of an articles of charge issued on 18-11-2006 [Annexure-K to the writ petition).
2. Petitioner has sought for quashing of this article of charge and has also sought for a further direction to the respondent-bank to formally relieve the petitioner from the services of the bank in terms of his request dated 22-6-2006 [Annexure-A] seeking for voluntary retirement as per Regulation 29 of the Indian Bank Employees Pension Regulations, 1995 [for short, the Pension Regulations].
3. Petitioner has urged, inter alia, that when once the petitioner has issued notice seeking for voluntary retirement and in terms of the Regulation 29 of the Pension Regulations, it should be deemed to have operated after the expiry of three months from the date of receipt of the same, particularly, as the appointing authority has not passed any order refusing permission to retire and when the deemed provision operates on and after expiry of 90 days from the date of receipt of the letter dated 22-6-2006, the employer cannot take any action against a person like the petitioner, who has already retired from services of the bank in terms of the deeming provision and therefore the articles of charge dated 18-11-2005 will not have any consequence on the petitioner and the petitioner need not face any enquiry and on the other hand, the petitioner should be allowed to reap the benefits of the deemed retirement in terms of the Pension Regulations.
4. This court while issuing notice to the respondents, had, in terms of the order dated 1-12-2006, stayed the further proceedings pursuant to the articles of charges dated 18-11-2005.
5. Respondents on receipt of notices have entered appearance through counsel Sri Ramesh Upadhyaya and have also filed statement of objections. The respondents, in addition, filed an application praying for vacating the interim order of stay granted by this Court contending, inter alia, that the order of stay granted by this Court has come in the way of taking further action in the disciplinary proceedings; that the petitioner has committed grave misconduct of financial irregularities involving moral turpitude and it is only to avoid the scrutiny of such misconduct, the petitioner had submitted the request letter dated 22-6-2006 styling as resignation letter and even while doing so, the petitioner has not complied with the requirement of Regulation 29 of the Pension Regulations itself; that the respondent-bank has neither accepted the petitioner's request nor can it be said it deemed to have been accepted and that in fact the petitioner has on and after the receipt of the articles of charge has unauthorizedly remained absent himself from duty also; that a separate proceeding has also been initiated against the petitioner for unauthorized absent; that the petitioner in fact had sought for retirement only during the pendency of the disciplinary proceeding; that the interim order should be vacated and the respondent-employer should be allowed to proceed with the enquiry, where it is open to the petitioner to defend himself suitably in the disciplinary proceedings.
6. Sri Sridhar, learned Counsel for the petitioner, has brought to my notice the provision of Regulation 29 of the Pension Regulations, which reads as under:
1. On or after the first day of November 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority retire from service.
2. The notice of voluntary retirement given under 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.
3. As per the above provision, a decision has to be taken by the competent authority within a period of one month or 14 days in case of resignation by award staff as the case may be and within a period of 3 months from the date of notice of resignation by officers and voluntary retirement by staff members. The competent authority for accepting the voluntary retirement of award staff and officers from scale I to III is with the Chairman and Managing Director and for officers from scale N and above is the Bank's Board The competent authority for accepting the resignation of award staff members is Zonal Manager/DGM(PL) and officers in all cadres is the Chairman and Managing Director.
4. Quite often the notice of resignation/voluntary retirement are received belatedly and with insufficient particulars and hence personal department finds it very difficult to place the matter to the competent authority/s for his/their decision before completion of the stipulated notice period. Moreover we have to fulfill certain formalities such obtention of clearance firm CO: Vigilance and CO: Inspection Departments for officers which require reasonable time for processing at their end. To avoid delay and unnecessary correspondence, the following guidelines are given.
5. Staff who intends to resign or voluntarily retire from the service of the bank should submit notice in the prescribed format enclosed. The staff members who have opted for pension alone can apply for voluntary retirement Along with the notice of voluntary retirement, a xerox copy of the acknowledgement received from CO: Personnel Dept. accepting the pension option should be attached The staff members should also give unconditional undertaking letters to the trustees of Provident Fund and Gratuity Fund for adjusting their direct/indirect liabilities from the proceeds of terminal benefit:
and has very vehemently urged that the petitioner having given the notice of retirement in terms of this Regulation as per his letter dated 22-6-2006 and in the absence of any express order by the appointing authority - Chairman & Managing Director of the bank - rejecting the request of the petitioner, the request of the petitioner inevitably takes effect after expiry of 90 days from the date of receipt of this request and therefore the petitioner is deemed to be relieved of his duties on this day and the articles of charge issued only subsequent thereto cannot have any effect in the eye of law. It is for this reason, the learned Counsel for the petitioner submits that the application for vacating the stay should not only be dismissed, but a direction be issued to the respondents to declare that the petitioner is deemed to have been retired and therefore pension and other terminal benefits be settled.
7. Per contra, Sri Ramesh Upadhyaya, learned Counsel for the respondent-bank submits that the provisions of Regulation 29 of the Pension Regulations cannot be called in aid by the petitioner for the reason that the service conditions of the petitioner is mainly governed by the Indian Bank (Officers) Service Regulations, 1979 [for short, the Service Regulations] and in terms of Sub-regulation (3) of Regulation 20 of the Service Regulations, which reads as under:
20. Termination of Service XXX (3) (i) An officer against whom disciplinary proceedings arm pending shall not leave/discontinue or resign from his service in the bank without the prior approval in writing of the competent authority and any notice of resignation given by such an officer before or during the disciplinary proceedings shall not take effect unless it is accepted by the competent authority.
(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this regulation if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him or where any charge-sheet has been issued against him and will be deemed to be pending untill final orders are passed by the competent authority.
(iii) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the disciplinary proceedings will continue if he was in service until the proceedings are concluded and final order is passed in respect thereof. The concerned officer will not receive any pay and not be entitled for the payment of retirement benefits till the proceedings are completed and final order is passed thereon, except his own contributions to CPF.
an officer against whom disciplinary proceedings are pending,, is neither permitted to leave his services or discontinue his services or resign from services, without a clear approval in writing of the competent authority and even if any notice is issued seeking for retirement or rendering resignation, the same will not have any consequence etc. and as in the case of petitioner, the disciplinary proceedings were contemplated against the petitioner even as on 22-6-2006, particularly in the wake of an earlier show cause notice dated 19-11-2005, to which the petitioner had also replied on 31-12-2005 and which the bank found not satisfactory and the bank proceeded to issue an articles of charge; that before seeking for voluntary retirement in terms of his request letter dated 22-6-2006, the petitioner has not obtained the permission from the competent authority and as such the request dated 22-6-2006 does not operate and it is of no consequence and therefore deeming provision cannot be called in aid.
8. Learned Counsel for the respondent-bank submits that the petitioner is only using the writ jurisdiction of this Court as a device to stall scrutiny into his misdeeds or misconduct while in service and there is no question of permitting persons like the petitioner to retire even before he is cleared off the charges; that the order of stay has come in the way of continuation of the proceedings and therefore the interim order of stay should be vacated and the writ petition dismissed.
9. Learned Counsel for the respondent-bank has also submitted that even if the petitioner should call in aid Regulation 29 of the Pension Regulations, this Regulation is not applicable to the petitioner, for the reason that the petitioner has not even complied with the requirement of the very Regulation 29 etc., and therefore notice or letter at Annexure-A cannot be construed a proper request for seeking voluntary retirement
10. Though this aspect is disputed by the learned Counsel for the petitioner, it is not necessary for this Court to examine this aspect of the matter further, as it is found that even if Regulation 29 and the requirements thereof could have been complied with by the petitioner in seeking for voluntary retirement in terms of the very Regulation, provisions of Regulation 20(3) of the Service Regulations definitely come in the way of the petitioner for claiming benefit under Regulation 29 of the Pension Regulations.
11. While the Pension Regulations are regulations which are having a limited application for the purpose of working out the retirement benefits of an employee of the bank, the Service Regulations are general regulations specifically applicable to the officers employed in the bank and governing their service conditions. Disciplinary proceedings are part of this Service Regulations and in terms of Sub-regulation (3) of Regulation 20 of the Service Regulations, an employee who is facing disciplinary proceedings is deprived of certain normal benefits or consequences, particularly in the matter of tendering resignation or seeking voluntary retirement. A regulation of this nature, I am of the view, is a reasonable regulation, as a person who is lacing serious charges of misconduct can otherwise always wriggle out of the situation by tendering resignation or seeking for voluntary retirement.
12. In this regard, Sri Sridhar, learned Counsel for the petitioner, has drawn my attention to Clause-(ii) of Sub-regulation (3) of Regulation 20 of the Service Regulations, wherein the pendency of disciplinary proceedings is adverted to and that after initiation of certain disciplinary proceedings shall be deemed to be pending. Submission is that the letter dated 19-11-2005 cannot be understood to be a show cause notice for the purpose of Clause-(ii) of Sub-regulation (3) of Regulation 20 of the Service Regulations and if it is not one such, it cannot be termed that any disciplinary proceedings was pending against the petitioner. Submission is that in such an event, Clause-(ii) of Sub-regulation (3) of Regulation 20 of the Service Regulations cannot also apply to the present case.
13. Sri Ramesh Upadhyaya, learned Counsel for the respondent-bank submits that the letter dated 19-11-2005 definitely indicates a misconduct on the part of the petitioner and the action had been initiated and the petitioner's response has been called for and therefore it is definitely a show cause notice prior to the initiation of the proceedings and issue of articles of charge.
14. It is not necessary for this court to enter into this controversy either, as it should be one which can constitute the basis for the issue of articles of charge or can it be said to be the situation where the disciplinary proceedings were pending against the petitioner since 19-11-2005. It is for this limited purpose, this writ petition can be disposed, for the reason that Regulation 29 of the Pension Regulations cannot control the provisions of Regulation 20 of the Service Regulations. In fact, the general regulations prevail over the pension regulations and If so, even if the deeming provision in terms of the Regulation 29 of the Pension Regulations should operate and nothing beyond, but by such deemed retirement operates as a bar to the provision of the Sub-regulation (3) of Regulation 20 of the Service Regulations.
15. It is for this reason, I hold that the petitioner cannot seek for the relief of quashing the articles of charge in terms of the prayer in the writ petition and if the articles of charge is not quashed, the disciplinary proceedings are pending, there is no question of issue of any further direction to the respondent-bank.
16. Interim order of stay has definitely come in the way of the disciplinary proceedings being to its logical conclusion. It may be in the interest of the petitioner also to see the conclusion of such disciplinary proceedings rather than to keep it pending unduly and remain in the state of uncertainty.
17. Though Sri Sridhar, learned counsel for the petitioner, would vehemently submit that the petitioner has a very good case on merits and it is not necessary for the petitioner to face the disciplinary proceedings and relief should be given for the reason that the petitioner is deemed to have been retired from service, I am of the view that it is for the petitioner to defend himself before the disciplinary authority rather than praying this Court to interfere with such proceedings, in the exercise of writ jurisdiction and to examine in writ jurisdiction only for the purpose of considering the question as to whether the articles of charge should be quashed even at this stage and the petitioner relieved from the enquiry proceedings.
18. An employee who is facing disciplinary proceedings should normally face the proceedings and defend himself rather than to seek shortcuts by urging any technical points. In the present case, I do not find any legal basis on which the articles of charge is one warranting exercise of certiorari jurisdiction of this Court.
19. In the circumstances, the interim order of stay granted in this writ petition is vacated and the writ petition is also dismissed. It is open to the petitioner to defend himself in the disciplinary proceedings.
20. In view of the fact that the disciplinary proceedings had been stayed by this Court till now, it is open to the petitioner to give his reply or explanation to the articles of charge within a further period of two weeks from today. Sri Ramesh Upadhyaya, learned counsel for the respondent-bank would submit that his client will wait for a further period of two weeks and if any explanation is given in the meanwhile, it will be duly considered. Submission is recorded.