Calcutta High Court
Ashoke Dasgupta vs United Bank Of India And Ors. on 26 August, 1999
Equivalent citations: (2000)IIILLJ1489CAL
JUDGMENT Ajoy Nath Ray, J.
1. The two writs by the same writ petitioner against United Bank of India are disposed of by this common order.
2. After long years of service, while the writ petitioner was the Branch Manager of United Bank of India at Birpara Branch , Jalpaiguri he wrote a letter on May 14, 1996 and also served it 6n the same day on the Bank Authorities.
3. By the said letter he sought to exercise an option for voluntary retirement which is given to him by Rule 29 of the Pension Regulations of the Bank, 1995.
4. He gave 90 days' notice to the Bank stating that he would be retiring, when 90 days would be over on August 12, 1996. On receipt of the notice, the respondents sent back that notice to the writ petitioner stating that it should be routed through the proper channel. According to the respondents, the proper channel was the Regional Manager. The writ petitioner re-submitted that letter sometime on or about June 14, 1996, but the consistent stand taken by the writ petitioner has been that the letter of May 14, 1996 was, appropriately given on that very day to the General Manager (Personnel) of United Bank of India.
5. In my opinion, this point of routing through the proper channel is a point without substance. The submission of the notice to the General Manager (Personnel) was quite sufficient. I mention this decision of mine at the very beginning without recounting further facts so that the other points in controversy are not mixed up with this unsubstantial defence.
6. Upto the expiry of August 11, 1996 the respondents did nothing. At least, nothing was known to the writ petitioner.
7. The respondents stated in their affidavit-in-opposition that on August 13, 1996 the Regional Manager wrote a letter to the writ petitioner refusing his request for voluntary retirement and that the writ petitioner had been informed by long distance telephone in the morning of August 13, 1996 about the refusal of acceptance of the notice of retirement.
8. Another letter dated August 12, 1996 is also annexed to the affidavit-in-opposition wherein the gist of a telegram, received by the Chief Manager (Pension) is reproduced. That telegram is also a telegram of refusal of acceptance. The Letter dated August 12, 1996 was also sent to the writ petitioner.
9. The letters dated August 12, 1996 and August 13, 1996 did not reach the writ petitioner until about August 17, 1996 when these letters were received at the Birpara Branch, where, however, the writ petitioner was no longer attending on that date.
10. In September, 1996 certain proceedings were initiated by the respondents against the writ petitioner for the alleged unauthorised absence from the Bank. That issue of unauthorised absence is not separate from the issue of voluntary retirement; if the writ petitioner effectively retired with the expiry of August 12, 1996, then his staying away from the office was justified; if not his absence was unauthorised.
11. A second disciplinary proceeding was sought to be initiated against the writ petitioner far later sometime in the month of November, 1998 or thereabouts. At this time, there were apparently allegations regarding monetary transactions while the writ petitioner was serving as the Branch Manager of the Maskalibari Branch before his posting at Birpara.
12. The second writ petition is in regard to the first disciplinary proceeding. This issue is also inextricably connected with the issue of retirement. If the writ petitioner had retired after August 12, 1996, a disciplinary proceeding against a retired employee was improper and illegal. If not the writ petitioner could well be proceeded against.
13. The facts recounted above expose the type of technicality which the law of public service has attained in our country. This case is both a life and death matter for the writ petitioner and also an extremely technical case dependent on the service of notice, and the concerned Rules and law relating thereto.
14. If the petitioner succeeds, he establishes his proper retirement and does away with the two disciplinary proceedings at one go; if the petitioner fails he is ruined as to his service career because he has stayed away after August 12, 1996 in the belief that he is a retired employee and all the proceedings in the department have gone against him.
15. Before the details about the notice are given it is important to set out the relevant Rules, on which the parties have relied.
16. First is set out below the material portion of Rule 29 of the Pension Regulations, primarily relied upon by the writ petitioner. These were current at the material time which run thus:
"29. Pension on Voluntary Retirement:
(1) On or after the day of November 1, 1993, at any time after an employee has completed 20 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 Sub-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)(a) An employee referred to in Sub-regulation (1) may make a request in writing to the appointing authority to accept notice of voluntary retirement of less than three months giving reasons therefor".
17. Previously the voluntary retirement of the persons in the same post as the writ petitioner would be guided by Administrative Instructions being the Service Regulations, 1979; the relevant Regulations at that time Regulations 28-A and 28-B which are set out below:
"28-A. Voluntary retirement by an officer may be permitted after he has completed 30 years of service or attained the age of 55 years whichever is earlier on giving three months' notice in writing.
28-B. In case of an officer employee against whom disciplinary proceedings is contemplated or is pending or a case in respect of any criminal offence is under investigation, enquiry or trial, no such retirement will have effect unless it is accepted in writing by the Competent Authority and such acceptance is communicated to him."
18. While Mr. Sinha gave these Regulations and pressed those into service on behalf of the writ petitioner, Mr. Bhattacharya, appearing for the Bank relied upon the Regulation 20 of the Officers' Service Regulations and and specially sub-regulation 3 thereof.
19. He pointed out that the prior Regulation had been struck down by the Supreme Court and thereafter these had come into force. The relevant sub-regulations under Regulation 20 are 3(1) and 3 (ii) which are set out below:
"3(i) An officer against whom disciplinary proceedings are pending shall not leave/discontinue or resign from his service in the bank without the prior approval in writing of competent authority and any notice or 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 and will be deemed to be pending until final orders are passed by the Competent Authority."
20. Mr. Sinha gave texts of the important documents including the notice of May 14, 1996 in a separate file. That should be kept with the records. The text of the letter of May 14, 1996 is as follows:
"I desire to have voluntary retirement from bank-service and as such please note the notice of the same for 90 (ninety) days w.e.f. May 14, 1996 and oblige.
The period of 90 (ninety) days will be over on August 12, 1996 which please be noted.''
21. In support of his contentions, Mr. Sinha relied upon several cases of which the most important are Sangama 's case, , Shelat's case, reported in AIR 1978 SC 1109: 1978-II-LLJ-34, and the case of the State of Haryana, recently .
22. From these Mr. Sinha submitted that the Supreme Court has now clearly laid down that a Service Regulation permitting voluntary retirement by the employee gives him a right which can be unilaterally exercised by the employee on his own volition; such an exercise will snap the service effectively, provided, of course, the Rule or Regulation in question has been duly complied with.
23. In my opinion, the above submission of Mr. Sinha has to be accepted in view of the authorities and accept it.
24. Mr. Bhattacharya gave me the case of Baljit Singh, which is a communication to this effect that even after expiry of a prescribed period of notice, voluntary retirement might still not become effective and complete; Baljit Singh's case was not followed by the Supreme Court in the case of the State of Haryana where a larger Bench decision was followed. Thus, if it is found that the notice was properly given by the writ petitioner it cannot but be held that he has effectively and duly retired.
25. Mr. Bhattacharya also submitted that if notice of refusal is given by the respondents . before the expiry of the period fixed in the notice of retirement, then it is enough if such refusal is written and posted by the authority, so that it loses control over such refusal; it is not necessary that the refusal must also reach the intending; retiree before the expiry of the period fixed in the notice of retirement.
26. In this regard, Mr. Battacharya also relied on the case of Shelat, reported in (supra) and also a Division Bench decision of our Court given in the case of Umashankar Chatterjee, reported in 1982-II-LLJ-378 (Cal-DB).
27. Mr. Bhattacharya's submission in regard to this point of law is also correct and I accept it.
28. Assuming that the notice correctly fixed the expiry of August 12, 1996 as the period after which the writ petitioner would retire, then and in that event, according to Mr. Bhattacharya's proposition, the refusal of retirement could be made by the authorities if they put that refusal into a concrete shape at the latest sometime on August 12, 1996, and also channelled it to the writ petitioner on that day in such manner as to lose control over that refusal, or the letter of refusal, themselves.
29. I have mentioned the letters of August 12. 1996 and August 13, 1996 above. The record and their originals, produced by Mr. Sinha's client in Court shows their receipt at Birpara Branch on August 17, 1996. There is nothing on record, brought forward by the respondents, who are in the special knowledge to show how or in what manner they had lost control over the letters dated August 12, 1996 or August 13, 1996, on the dates mentioned in the letters.
30. In any event the letter dated August 13, 1996 is too late, and the letter dated August 12, 1996 is not a pointed refusal, but a communication of the gist of a telegram, received from an unspecified person by an unspecified person.
31. However, I base my decision about the invalidity of these refusals on the more substantial point that the date August 12, 1996 is not shown to be the day on which the letter was written and lost control of by the respondents authorities.
32. As regards the sub-regulations 3(i) and 3(ii) of Regulation 20, in my opinion, those would not be applicable to the instant case because until the expiry of August 12, 1996 there was neither a disciplinary proceeding commenced against the writ petitioner, nor a suspension of his, nor any show-cause made out as to why a disciplinary proceeding should not be started against him. In my opinion, the word "before" occurring in Sub-regulation 3(i) is referable to the cases of deemed pendency of disciplinary proceeding mentioned in Sub-regulation 3(ii). Since none of the contingencies happened in the instant case the notice given by the writ petitioner is not invalidated. The letter of February 14, 1996 referred to by Mr. Bhattacharya is not a show-cause of any type; it called for an explanation from a subordinate with copy to the vigilance; the writ petitioner gave an explanation, although a little, in June 1996.
33. In the affidavit-in-opposition, it is mentioned that the writ petitioner's notice is invalid. No ground is given therefor. From a Court's query the respondents argued a point that the notice of 90 days is not a notice of three months. According to them, three months after May 14, 1996 would expire after the expiry of August 13, 1996.
34. Even if that is so, the respondents do not show that even on August 13, 1996 they had lost control over the letter of the Regional Manager of that date; here also the receipt by Birpara Branch is dated August 17, 1996, but how the letter was sent by the Regional Manager is not even required, to be known, unless the respondents can show that they lost control over the letter of August 13, 1996; without showing this, they cannot invoke the principles of law relied upon by Mr. Bhattacharya.
35. In my opinion, the notice does not suffer from any defect because of the specification of 90 days. Before I give the reasons for this I must mention that the telephone call of August 13, 1996, mentioned in the letter of the Regional Manager, is of no effect, even if it had been made. This is because, in my opinion both the notices of retirement under 29(1) and the refusal under 29(2) must be in writing. Although not expressly stated to be so, these Rules must mean and refer to written communications. Any other interpretation would lead to a lot of undesirable disputes, both from the side of the employer and of the employee.
36. Regarding three months and or 90 days, it should be noted that Regulation 29(1) requires the service of a notice which specifies a period; the word "period" occurs in the proviso to Sub-regulation (2) of Regulation 29. The notice should not mention necessarily a date, but it must necessarily mention a date and a period. Mention of the date was perhaps out of abundant caution, but the mention of the period was a must.
37. The rule does not mention a calendar month or three calendar months. Mr. Bhattacharya relied on Section 3, Sub-section (35) of the General Clauses Act to show that a month means a British Calendar month in a Central Statute unless the context otherwise requires. That principle may be well applicable to other areas of construction also than merely Central Statutes, but in this case, changing three months to read as three calendar months would be inappropriate.
38. If we are to make that change the period of notice given by an employee would change; it would be different from the period of notice given by an employee in January than in June because of the comparative brevity of the month of February and the comparative length of the two successive months of July and August. By a period of notice applicable to these regulations we must mean a fixed period. That fixed period is of three months, in the minimum. The most reasonable construction of a period of three months is 90 days taking the average length of a month as 30 days.
39. The writ petitioner's notice of retirement was therefore valid, validly served and it became effective with the expiry of August 12, 1996 because within that time no effective refusal was made by any of the respondents.
40. Both the writ applications succeed. So far as the first writ, W.P. 11167 (W) of 1997 is concerned, there will be rule absolute in terms of prayers (a), (b), (c) and (d) of the writ petition. So far as the second writ being No. W.P. 23847(W) of 1997 is concerned, there will be rule absolute in terms of prayers (a), (b) and (c) of the writ petition; although no writ petition was filed with regard to the November, 1998 notices and subsequent proceedings relating to the second disciplinary proceeding, those also have to be quashed as a consequential relief simply because the writ petitioner had retired after August 12, 1996. Such quashing is hereby made.
41. All the arrears due to the writ petitioner should be released with immediate effect, in any event not later than four weeks from the date hereof. Since the writ petitioner had retired by serving an appropriate notice after August 12, 1996, but the respondents had not accepted such retirement wrongfully, they will pay interest @ 6% per annum on all arrears payable to the writ petitioner from August 13, 1996 until payment, except for the sum of Rupees one lac which has been released by way of an interim payment, on which no interest need be paid and which, naturally, need not be paid once again.
42. The writ petitioner is entitled to the costs of both the applications which is assessed at Rs. 10,000/- each. Costs and interest be also paid within four weeks from the date hereof.
43. Xerox certified copy of the order be made available to the parties expeditiously, preferably within fortnight from date.