Madras High Court
Bank Of India Rep. By The Regional ... vs M.R. Natarajan on 9 August, 2007
Author: P. Jyothimani
Bench: A.P. Shah, P. Jyothimani
JUDGMENT P. Jyothimani, J.
Page 1937
1. The respondent has joined under the appellant Bank in 1956 as a Clerk and subsequently, he was promoted as an Officer from 01.04.1962 and his date of superannuation was 31.10.1997. He was placed under suspension by the appellant on 15.09.1981 as per Clause 12(1)(a) of Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976, (in short, "the Regulations") contemplating disciplinary action against him in respect of misconduct and irregularities. Subsequently, by an order dated 06.05.1982, a modified suspension order was passed by the appellant continuing the earlier order of suspension also on the basis that certain criminal offence against the respondent is under investigation/enquiry and that order was passed pursuant to Clause 12.5(b) of the Regulations, stating that the suspension will also be treated as suspension pending investigation/enquiry or trial of criminal offences in terms of Clause 12(1)(b) of the Regulations.
2. By order dated 28.08.1997, the appellant Bank passed an order informing that the respondent is due for superannuation on 31.10.1997 and in terms of Clause 20(3)(iii) of the Bank of India (Officers) Service Regulations, 1979, ordering that the employee will cease to be in service of the Bank as on 31.10.1997, but since criminal proceedings have been launched against him, he shall continue to be in service till the criminal case is concluded and final order is passed, further stating that he will not be eligible for any pay and not entitled for any retirement benefits till the criminal proceedings are completed and final order passed.
3. It is also admitted that the appellant has allowed the respondent to retire on attaining superannuation with effect from 31.10.1997. After his retirement, on 04.11.1997, the respondent was convicted under the Prevention of Corruption Act. He has filed an appeal against the said conviction in Criminal Appeal No. 903 of 1997 before this Court and this Court, by order dated 21.11.1997, granted stay of the sentence. It is not in dispute that ultimately, the criminal appeal has ended in acquittal of the respondent on merit by judgment dated 08.04.2005.
Page 1938
4. Based on the conviction by the criminal Court at the first instance the appellant Bank has issued a show cause notice against the respondent on 12.08.1998 under Clause 4(j) of the Regulations as to why he should not be dismissed from service on the basis of conviction by the criminal Court. It is challenging the said show cause notice, the respondent has filed W.P.No. 15904 of 1998. He has also filed W.P.No. 15905 of 1998, for direction for payment of subsistence allowance. In the above writ petitions, by order dated 12.10.1998, there was an order of stay of further proceedings pursuant to the show cause notice dated 12.08.1998. The appellant who was the respondent in the writ petition has contended that the respondent/employee has failed to furnish the required certificate that he is not gainfully employed, to enable him to receive the subsistence allowance. It was the further contention of the appellant Bank that as per the Regulations, when once an employee of the Bank is convicted on a criminal charge, the Bank is entitled to impose major punishment. The learned single Judge, considering the fact that till the delinquent/respondent attained the age of superannuation, the appellant Bank has never thought of initiating any enquiry proceedings and in view of the same, the impugned show cause notice was quashed by allowing W.P. No. 15904 of 1998 and in view of the said order, the writ petition filed for subsistence allowance, viz., W.P. No. 15905 of 1998, was closed. However, the learned Judge has directed the appellant Bank to pay all the emoluments to the respondent, including the provident fund and other retiral benefits accrued in his favour, as though he had retired in the normal course after attaining the age of superannuation, after deducting the subsistence allowance, if any already paid to him, within two months from the date of receipt of the said order. It is, as against the said order passed by the learned single Judge dated 04.12.2003 made in W.P. No. 15904 of 1998, the appellant Bank has filed the present appeal.
5. Pending the appeal, this Court, by order dated 18.04.2006 passed in WAMP. Nos. 611 of 2006 and 1631 of 2004, taking into consideration of the fair statement made by the learned Counsel for the appellant that in view of the acquittal of the respondent in the criminal case, the respondent is entitled to his terminal benefits, viz., Provident Fund, Gratuity, Monthly Pension subject to eligibility, directed the appellant to release the terminal benefits within a period of two weeks. This Court has further stated that as regards the issue relating to entitlement of retiral benefits during the period from 1981, when the respondent was put in suspension till he was convicted by the trial Court, the matter was adjourned.
6. It is, to clarify the above said order dated 18.04.2006, the respondent has filed WAMP.No. 1623 of 2006, directing the appellant Bank to pay the terminal benefits to the respondent, viz., (a) the balance of gratuity from October, 1981 till 31.10.1997; (b) his share of provident fund contribution from October, 1981 till 31.10.1997 together with interest accrued therein; and (c) arrears of pension from November, 1997 till May, 2006 and thereafter to continue to pay the pension every month.
Page 1939
7. It is by virtue of the above application and with the consent of both parties, the writ appeal was taken up for final disposal.
8. Mr. Sanjay Mohan, learned Counsel appearing for the appellant Bank would submit that even if it is taken that by virtue of the second suspension order dated 06.05.1982, which was in respect of the criminal case pending against the respondent as well as the conviction awarded to the respondent by the criminal Court on 04.11.1997, in terms of Section 10 of the Banking Regulation Act, it was obligatory on the part of the appellant Bank to terminate the services of the respondent. His further contention is that, even after the acquittal of the respondent on appeal by this Court which was on 08.04.2005, it was still open to the appellant Bank to continue the original suspension order dated 15.09.1981, which was based on contemplation of disciplinary proceedings and further action can be taken.
9. On the other hand, it is the contention of Mr. C.K. Chandrasekar, learned Counsel for the respondent that when once, on facts no disciplinary proceeding has been initiated by the appellant irrespective of criminal case, it is not open to the appellant now to go back and proceed with the disciplinary proceedings based on the suspension order dated 15.09.1981, especially when the respondent has retired on superannuation on 31.10.1997. He would also submit that even the conviction by the criminal Court in the first instance itself was only on 04.11.1997, while the petitioner has already retired on 31.10.1997 and it is the duty of the appellant Bank to pay the entire arrears of salary from the period 1981 to 1997, viz., till the date of retirement of the respondent.
10. We have heard the learned Counsel for the appellant as well as the respondent and perused the entire records.
11. The contention raised by the learned Counsel for the appellant placing reliance on Regulation 20(3)(iii) that the disciplinary proceedings shall be deemed to be pending against the employee who is placed under suspension till final orders are passed and as per the Regulations when disciplinary proceeding is initiated against the employee, he ceased to be in service on the date of superannuation, but the disciplinary proceedings will continue, as if he was in service till the proceedings are concluded and final orders are passed and till then such employee will not be entitled for payment of retirement benefits, is not sustainable. Regulation 20(3), which is relied upon by the learned Counsel for the appellant states as follows:
Regulation 20(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 of registration given by such an Officer before or during the disciplinary proceedings shall not take effect unless it is accepted by the Competent Authority.
Page 1940
(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.
(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 as 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 / or allowance after the date of superannuation. He will also not be entitled for the payments of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPP.
12. It is clear on record that the show cause notice issued by the appellant Bank on 12.08.1998 as per Regulation 20(3)(iii) was only in respect of the conviction of the respondent in the criminal case and not in respect of any disciplinary proceedings. It is also clear on record that no disciplinary proceeding has been initiated against the respondent for any misconduct or dereliction of duty, etc. and no such intention has ever been shown at any point of time by the appellant Bank. In such circumstances, when the respondent against whom the show cause notice was issued for dismissal on the basis of conviction under the criminal case ended in acquittal by this Court in C.A.No. 902 of 1997 on 08.04.2005, it is only natural to presume that all proceedings against the respondent has come to an end.
13. It is also clear that at this late point of time the appellant cannot say that the original suspension order dated 15.09.1981 is still pending and therefore, it is open to the appellant Bank to initiate disciplinary proceedings against the respondent and there is no question of fresh enquiry now conducted on the basis of the suspension order of the year 1981. In view of the above said facts, we have no doubt that the respondent is entitled to all retiral benefits from the date of his service till the date of his retirement, viz., 31.10.1997. However, the direction of the learned single Judge, which can also be construed that from the period 1981, viz., the order of suspension till 1997, the respondent is entitled for full salary, requires consideration by the appellant Bank.
14. In view of the above said facts, the writ appeal is disposed of with the following directions:
(i) The respondent shall be eligible for all retrial benefits for his service rendered in the appellant Bank from 1956 till date of retirement on 31.10.1997;
(ii) In respect of the claim of salary of the respondent for the period between 15.09.1981 to 31.10.1997, the appellant Bank' is directed to pass appropriate orders by taking into consideration of Page 1941 the various facts, including those which are enumerated above and such order shall be passed within a period of two months from the date of receipt of copy of this order; and
(iii) The appellant shall not be entitled to take any disciplinary proceedings against the respondent pursuant to the show cause notice dated 12.08.1998, impugned in the writ petition.
In view of disposal of the main appeal, connected miscellaneous petitions are closed.