Madhya Pradesh High Court
Satyapal G. Purswani vs The Central Bank Of India, on 16 May, 2017
WP No. 9088/2013
1
HIGH COURT OF JUDICATURE MADHYA PRADESH, JABALPUR
Single Bench: Hon'bleShri Justice SubodhAbhyankar, J
W.P. No. 9088/2013
Satyapal G. Purswani
Vs.
Central Bank of India& others
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Shri Manoj Kumar Sharma with Shri Parag Tiwari, learned counsel
for the petitioner.
Shri Anand Pandey, learned counsel for the respondent.
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ORDER
(Passed on the 16th day of May, 2017)
1. With the consent of the learned counsel for the parties, the matter is heard finally.
2. The petitioner is a retired person having retired compulsorily from Central Bank of India from the post of Manager.The petitioner has made the following reliefs in the petition:-
"a) Issue an appropriate writ, order or direction to the Respondents to award full pension to the petitioner as admissible to him from the date of compulsory retirement from 08/3/2004 without any reduction with interest @ 12% per annum.
b) Issue a further order, writ or direction the Respondents to pay the emoluments as admissible for the 180 days privilege accumulated by him as on the date of his compulsory retirement for the purpose of encashment with interest @ 12% per annum from 08/3/2004
c) Any other relief as deemed fit and proper on facts of the case as explained above."
3. Although from para one of the petition, it is apparent that the petitioner is also aggrieved of the communication dated 05.06.2012 (Annexure P/1) whereby he is informed that the pension equal to 2/3 of the full pension, as fixed by the competent authority is already being paid to him and it is also informed that since the petitioner was awarded WP No. 9088/2013 2 punishment of "Compulsory Retirement" by the Competent Authority, as per prevalent provisions, he is not entitled to leave encashment. The petitioner has also challenged in para one of the petition the validity of the order dated 31.12.2004 (Annexure P/2) whereby the pension of the petitioner has been reduced to two-third of the actual pension. But as is apparent from the relief clause the office order dated 31.12.2004 has not been challenged.
4. In brief the facts of the case are that the petitioner was issued memo of chages on 13.01.2003 and the disciplinary authority appointed Enquiry Officer to enquire into the charges, who submitted hs report holding the charges proved. The contention of the petitioner is that the Disciplinary authority, without considering the defence and evidence on record, accepted the enquiry report and imposed on the petitioner penalty of removal from the services vide order dated 03.03.2004. In appeal preferred by the petitioner, the appellate authority partly allowed the appeal the penalty was modified from removal from service to compulsory retirement. When it was left only 02 years and 5 months from actual retirement of the petitioner on 31.07.2006. Being aggrieved by the order passed by the appellate authority, the petitioner preferred W.P.(s) No. 13381/2004 before this Court and vide order dated 04.03.2010 this Court reduced the penalty to a lower stage in time scale of pay for a period of 2 years without cumulative effect, not adversely affecting the pension but in appeal preferred by the respondents, the aforesaid order passed by this Court was set aside upholding the penalty imposed by the appellate authority of the Bank. Since the respondents also deprive the petitioner from full pension and leave encashment as applicable at the time of retirement. The respondent submitted a representation on 27.02.2012 which was rejected by the respondents, hence being aggrieved by the same, the petitioner filed a petition before this Court against the impugned order dated 05.06.2012.
5. The charge-sheet was issued alleging submission of forged and bogus MTR on the ground that the petitioner, while posted as Manager at Saga was transferred to Bhopal in May 2002 as Manager / Assistant Secretary in the office of Banking Ombudsman, Reserve Bank of India on deputation. In pursuance of the aforesaid order, he joined on 27.05.2002 . Petitioner allegedly got his household goods transported through TCI, a transport company at a freight of Rs.5,000/-. The goods were said to be WP No. 9088/2013 3 delivered along with M.T.R. No. 9982 and Money Receipt No. 9582 dated 22.06.2002. The petitioner sought reimbursement of Rs. 10,826/- towards Transfer Allowance including Rs.5,000/- for the transportation charges on 01.07.2002. On 15.07.2002 he was informed about the discrepancyregarding the claim of transportation charges, whereon he withdrew the M.T.R. No. 9982 and the Money Receipt. Later on petitioner withdrew his claim for reimbursement of Rs.5,000/- against M.T.R. of T.C.I. On 16.09.2002 petitioner was subjected to show-cause as to why disciplinary action be not taken against him for submitting forged and bogus M.T.R. and money receipts.
6. In reply the petitioner submitted that as soon as he came to know about the MTR being forged and bogus, he lodged a complaint at Police Station Kolar Road, Bhopal, against the transport agent whereon a case was registered under Section 420 of the IPC. Not satisfied with the reply, the Bank initiated a departmental enquiry against the petitioner.
7. The contention of the petitioner is that as per Rule 33 of the Central Bank of India (Employees) Pension Regulations 1995 which governs the pension of an employee compulsorily retired from service, it is provided that the authority may grant pension at the rate not less than two-thirds and not more than the full pension admissible to him on the date of his compulsory retirement, if otherwise he was entitled to such pension on superannuation on that date.
8. Apart from that, it is further contended by the petitioner that sub- regulation 2 of the aforesaid Regulations specifically provides that whenever, in the case of a bank employee, the competent authority passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed. Thus, it is contended by the learned counsel for the petitioner that on this ground also where the Board of Directors were not consulted, the impugned order is liable to be set aside and the petitioner is entitled to two-third of his original pension. The petitioner has also relied upon the Sanctioning documents filed as Annexure-P/6 and it is submitted that the delegation of powers was not in respect of the 'Compulsory Retirement', but was for payment of 'Compassionate Allowance' hence it cannot be said that there was any WP No. 9088/2013 4 delegation by the Board to the Competent Authority to reduce the pension of the petitioner.
9. It is further contended by the petitioner that as per Rule 48 of the Pension Regulations, the competent authority has the power to withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any department or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service and even in that case also, the Board should be consulted before any final orders are passed.
10. It is contended by the petitioner that as per Regulations No.38 of Central Bank of India (Officers) Service Regulations, 1979, an officer on retirement from the Bank's service shall be eligible to be paid a sum equivalent to the emoluments of any period of privilege period that he had accumulated and hence the petitioner is eligible to be paid a sum equivalent to the emoluments of privilege leaves that were accumulated by him at the time of his compulsory retirement from service with a view to encash the same at the time of his retirement. It is submitted by the petitioner that denial of this benefit is arbitrary and contrary to the rules.
11. It is vehemently argued by the learned counsel for the petitioner that the authorities have lost sight of the fact that no pecuniary loss has occasioned to the Bank and as such there is no reason for them to reduce one-third of the full pension of the petitioners, which is contrary to Rule 48 of the Regulations. It is submitted by the petitioner that he should have been given full pension instead of two-third of the same only. It is further submitted that the encashment of leave is an emolument accumulated by the petitioner during his entire service period and it cannot be denied on account of any reason whatsoever.
12. In return, the respondents have submitted that there is no illegality committed by the respondent authority. It is further submitted that since by way of punishment, he has been compulsorily retired from service, hence as per the prevalent provisions, he is not entitled to any leave encashment. It is further submitted that as per Rule 33 the authority has discretion to award the pension by reducing it to one-third or to pay full pension also. Respondents have also submitted that the penalty imposed WP No. 9088/2013 5 by the concerned authority has been maintained by the Division Bench of this Court in WA No. 558/2010 and the punishment awarded by the appellate authority has been maintained by the Division Bench of this High Court. It is further submitted that even the review petition R.P.No.366/2012 submitted by the petitioner has been dismissed by the Division Bench vide its order dated 27.04.2012 and as such there is no illegality committed if the petitioner's pension is reduced to one-third of his full pension. So far as the consultation with the Board of Directors is concerned as provided in R.33, it is submitted that the petitioner's pension has been sanctioned by the General Manager on 25.01.2005 and the Board of Directors were not consulted because the Board of Directors had delegated the power to the concerned Competent Authority which is contained in Annexure-P/6. It is further submitted that due to typographical mistake, in place of 'Compulsory Retirement', the words 'Compassionate Allowance' has been written but such error cannot be en-cashed by the petitioner.
13. So far as the claim of leave encashment of the petitioner is concerned, it is submitted that the petitioner is not entitled for the same as provided vide Circular dated 31.01.2001 wherein it is provided that the officer who is compulsorily retired as a punishment, he shall not be entitled to leave encashment as per Rule 4 of the D.A. Regulations.
14. Head the learned counsel for the parties and perused the record.
15. Before this court proceeds to record its reasons, it would be apt to refer to some of the relevant provisions of the Central Bank of India (Employees' Pension Regulations) 1995 (for short , ' the Regulations of 1995'). Regulations 31, 33 and 48 of the same read as under:-
"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. (2) The Compassionate Allowance sanctioned under the proviso to sub regulation (1) shall not be less than the amount of minimum pension payable under regulation 36 of these regulations.WP No. 9088/2013 6
33. Compulsory Retirement Pension:- (1) An employee compulsorily retired from service as a penalty on or after 1st day of November, 1993, in terms of Discipline and Appeal Regulations or settlement by the authority higher than the authority competent to impose such penalty may be granted pension at a rate not less than two-thirds and not more than full pension admissible to him on the date of his compulsory retirement if otherwise he was entitled to such pension on superannuation on that date.
(2) Whenever in the case of a bank employee the Competent Authority passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed.
(3) A pension granted or awarded under sub-regulation (1) or, as the case may be, under sub-regulation (2), shall not be less than the amount of rupees three hundred and seventy five per mensem.
48. Recovery of Pecuniary loss caused to the Bank:- (1) The Competent Authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service; Provided that the Board shall be consulted before any final orders are passed;
Provided further that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be proceedings under these regulations and shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee has continued in service; Provided also that no departmental or judicial proceedings, if not initiated while the employee was in service, shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution.
(2) Where the Competent Authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding one-third of the pension admissible on the date of retirement of the employee;
Provided that where a part of pension is withheld or withdrawn, the amount of pension drawn by a pensioner shall not be less than the minimum pension payable under these regulations."
(emphasis supplied) From the aforesaid provisions, it can be discerned that the regulation 31 relates to Compassionate Allowance in case of an employee who is dismissed or removed or terminated from service whereas Regulation 33 relates to an employee who has been compulsorily retiredby the Competent Authority as a penalty. In sub-clause 2 of the WP No. 9088/2013 7 same it is provided that whenever in the case of a bank employee the Competent Authority passes an order (whether original, appellate or in exercise of power of review) awarding a pension less than the full compensation pension admissible under these regulations, the Board of Directors shall be consulted before such order is passed. Thus, an award of reduction of pension under Regulation 33 has to be passed by the Competent Authority whether original, appellate or in exercise of power of review at the time of imposing the penalty of Compulsory Retirement and not subsequently and independently and that too after consultation with the Board. Regulation 48 is also provides for recovery of pecuniary loss to the Bank after consultation with the Board.
16. It is an admitted fact that on account of the departmental enquiry, the petitioner was removed from the service vide order dated 03.03.2004 passed by the Disciplinary Authority and when the aforesaid order of removal of service was challenged by the petitioner in an appeal before the Appellate Authority (Dy. General Manager), the same was allowed vide order dated 27.09.2004 and the appellate of authority inflicted the penalty of compulsory retirement in place of removal of service in the following manner:-
"However, on the question of the quantum of punishment I have examined the whole case. After examining all the relevant circumstances I am of the view that the punishment awarded to the appellant is little harsh. Keeping in view his long tenure with the Bank, the ends of justice wouljd meet if he is awarded the punishment of "Compulsory retirement" under Regulation 4(h) instead of punishment of 'Removal from service"./ I modify the punishment awarded to the appellant. The appellant is awarded the punishment of "Compulsory retirement" under regulation 4(h) of Central bank of India Officer Employees (Discipline & Appeal) Regulations, 1976."
(emphasis supplied) From the aforesaid it is apparent that the Appellate Authority has not passed any order in respect of the reduction of the petitioner's pension and in the circumstance, the Competent Authority had no jurisdiction to pass the order of reduction of pension.
17. From the aforesaid order, regulation 4 of the aforesaid Central Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976 WP No. 9088/2013 8 also becomes relevant and the same reads as under:-
"4. Penalties The following are the penalties which may be imposed on an officer employee, for acts of misconduct or for any other good and sufficient reasons.
Minor Penalties a. censure;
b. withholding of increments of pay with or without cumulative effect;
c. withholding of promotion;
d. recovery from pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders.
e. reduction to a lower stage in time-scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension.
Major Penalties f. same as provided for in (e) above reduction to a lower stage in the time-scale of pay for a specified period with further directions, as to whether or not the officer will earn increments of pay during the period of such reduction and whether on the expiry of such period the reduction will or will not have the effect of postponing the future increments of his pay;
g. reduction to a lower grade or post;
h. compulsory retirement;
i. removal from service which shall not be a disqualification for future employment;
j. dismissal which shall ordinarily be a disqualification for future employment.
1 Explanation:- The following shall not amount to a penalty within the meaning of this regulation namely:
i. withholding of one or more increments of an officer employee on account of his failure to pass a prescribed departmental test or examination in accordance with the terms of appointment to the post which he holds.
ii. stoppage of pay of an officer employee at the efficiency bar in a time scale, on the ground of his unfitness to cross the bar;
iii. non-promotion, whether in an officiating capacity or otherwise, of an officer employee, to a higher grade or post for which he may be eligible for consideration but for which he is found unsuitable after consideration of his case"
(emphasis supplied) WP No. 9088/2013 9 From the aforesaid regulation 4 (d) it is clear that recovery from an employee may be made from his pay or such other amount as may be due to him of the whole or part of any pecuniary loss caused to the Bank by negligence or breach of orders and regulation 4(h) provides for Compulsory Retirement only. Admittedly, no loss has occasion to the bank owing to the actions of the petitioner, thus, there is no question of recovery of any amount. Even otherwise if any recovery was to be made from the petitioner, it ought to have been made along with the order of compulsory retirement.In the present case it is apparent that a parallel proceeding was drawn against the petitioner in which his pension was reduced to 2/3rd of his pension.
18. A bare perusal of the order dated 27.09.2004 as reproduced above clearly reveals that the petitioner has been imposed the penalty of Compulsory Retirement only and there is no other penalty of reduction of pension attached to it. Whereas in the communication Annexure-P/1 dated 05.06.2012 the petitioner has been informed in the following manner:
"In the captioned matter, we wish to inform you that the pension equal to 2/3rd of full pension, as fixed by the competent authority has already been paid to you. Further since you were awarded punishment of "Compulsory Retirement" by the competent authority, as such as per prevailing provisions, you are not entitled for 'leave encashment'.
19. The other document filed in Annexure-P/2 is a letter dated 31.12.2004 issued by the Chief Manager of the respondent Bank, the operative para of the same reads as under:-
"Zonal office Bhopal recommended for sanction of pension to the employee. There is no financial loss reported by Zonal Office Bhopal. But looking to the charges leveled against the member, department proposes for payment of 2/3rd pension to shriS.G.Puruswami as per regulation 33 of Bank Employees Pension Regulations, 1995."
(emphasis supplied) From the aforesaid facts following position emerges viz. the order of removal was passed on 03.03.2004, Order in Appeal for Compulsory Retirement was passed on 27.09.2004, order of reduction of pension was passed and approved under Regulation 33 on 31.12.2004 which makes it WP No. 9088/2013 10 easy to understand that order of reduction in pension was passed around 3 months after the petitioner's appeal was allowed. The office order dated 31.12.2004 was not communicated to the petitioner till 2012. It is also apparent that no opportunity of hearing was also given to the petitioner before passing the order which was in the nature of penalty.
20. However, this court agrees with the contentions raised by the learned counsel for the respondent that in the Resolution dated 25.05.1998, on account of a typographical mistake, in place of Compulsory Retirement, the words ' Compassionate Allowance' have been written and no benefit can be drawn by the petitioner from the said mistake but merely if there is a sanction from the Board, would not entitle the Competent Authority pass the order of reduction of pension at its whims and caprice after a final order was passed by the Appellate Authority. Although, the aforesaid mistake has certainly given rise to an argument which could have been avoided by the respondent because even after passing the said resolution in the year 1998, the respondents have not tried to correct it which shows their lethargy to deal with the issue. So far as the claim of the petitioner in respect of the leave encashment is concerned, the reliance placed by the respondent on the circular dated 31.01.2001 wherein it is provided that in case of compulsory retirement, leave encashment is not permissible has to be accepted as there is no challenge to this circular by the petitioner despite filing the same with the petition.
21. This court is aware of the fact that the petitioner has not challenged the order dated 31.12.2004 despite mentioning it in para one of the petitionwhich appears to be an inadvertent mistake but that would not be an impedimentfor this court to mould the relief in the interest of justice as has been held by the hon'ble Apex court in the case of M. Sudakar v. V. Manoharan, (2011) 1 SCC 484 as under :
"14. The power to mould relief is always available to the court possessed with the power to issue high prerogative writs. In order to do complete justice it can mould the relief, depending upon the facts and circumstances of the case. In the facts of a given case a writ petitioner may not be entitled to the specific relief claimed by him but this itself will not preclude the writ court to grant such other relief which he is otherwise entitled. Further delay and laches do not bar the jurisdiction of the court. It is a matter of discretion and not of jurisdiction. The learned Single Judge had taken note of the relevant facts and declined to dismiss the writ petition on the ground of delay and laches.WP No. 9088/2013 11
15. True it is that the learned Single Judge had observed that the writ petition had become infructuous and still proceeded to grant relief to the appellant. In our opinion, the learned Single Judge may not be absolutely right in observing that the writ petition had become infructuous as the resolution debarring the appellant was still operative. In our opinion a writ petition broadly speaking is held infructuous when the relief sought for by the petitioner is already granted or because of certain events, there may not be necessity to decide the issue involved in the writ petition. Here in the present case the resolution of the governing body was still holding the field when the writ petition was heard and in fact was to operate for a further period, hence it cannot be said that the relief claimed by the appellant had become infructuous. In any view of the matter, as the effect of the order continued, the learned Single Judge was right in moulding the relief. The act of the appellant in removing a large number of members and financial impropriety will not clothe the general body to pass resolution debarring the appellant from holding the post for 10 years, as no such power is conferred by the bye-laws. The action being patently illegal, the learned Single Judge could not have declined the relief taking into account the alleged action."
(emphasis supplied)
22. In the final result, on the aforementioned discussion of the relevant provisions of Regulations governing the petitioner and the facts of the case, this court is of the considered opinion that so far as the relief of Leave Encashment is concerned, the same is hereby rejected, but, the reduction of 1/3rd pension of the petitioner from his pension is held to be totally illegal, arbitrary and in violation of the provisions of the Pension Regulations of 1995 as also the Discipline and Appeal Regulations of 1976. Hence as such the impugned order dated 31.12.2004 is hereby quashed which relates to the reduction of pension and the respondents are directed to award the full pension from now on and they are further directed to clear the entire amount of 1/3rd pension which has been withheld since 08.03.2004 with interest @ 8% per annum. The aforesaid exercise be completed by the respondents within a period of 3 months from the date of receipt of certified copy of this order.
23. The petition, accordingly allowed in part with the aforesaid directions. No orders as to costs.
(SubodhAbhyankar) Judge