Allahabad High Court
Dr. Bharat Sah vs S.G.P.G.I. Of Medical Sciences, ... on 9 September, 2021
Author: Rajesh Singh Chauhan
Bench: Rajesh Singh Chauhan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on 26.07.2021 Delivered on 09.09.2021 Court No. - 7 Case :- SERVICE SINGLE No. - 17450 of 2020 Petitioner :- Dr. Bharat Sah Respondent :- S.G.P.G.I. Of Medical Sciences, Lucknow Thru. Director & Ors Counsel for Petitioner :- Sunil Sharma,Kusharga Sah Counsel for Respondent :- A N Trivedi Hon'ble Rajesh Singh Chauhan,J.
1. Heard Sri Sunil Sharma assisted by Sri Kushagra Sah, learned counsel for the petitioner and Sri Abhinav Trivedi, learned counsel for the S.G.P.G.I. By means of this petition the petitioner has prayed following relief :
"(i) Issue a writ of certiorari setting aside the impugned order dated 04.07.2020 and 23.04.2020 passed by respondent No.2, and the order dated 17.04.2020 passed by the respondent No.4. [as contained in annexure no. 1 to 3]
(ii) Issue a writ order or direction in the nature of Mandamus to the Respondents commanding them to consider the Petitioner's application dated 05.05.2020 for voluntary retirement afresh as per SGPGI Regulations, within the stipulated time and after its acceptance, the consequential service benefits admissible to the petitioner under rules be also released thereafter expeditiously.
(iii) Issue a writ order or direction in the nature of Mandamus restraining the respondents from compelling the petitioner to join back in SGPGI, and to take any disciplinary proceedings against the petitioner.
(iv) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case in favour of the petitioner alongwith the cost of the petition."
2. The brief facts of the case are that the petitioner was appointed on the post of Assistant Superintendent (House Keeping) at Sanjay Gandhi Post Graduate Institute of Medical Science, Lucknow ( hereinafter referred to as S.G.P.G.I.) on 28.7.1988. The petitioner was subsequently promoted on the post of Associate Superintendent (Non-Medical) in S.G.P.G.I. in 2013.
3. The petitioner applied for the post of Campus Director, National Institute of Fashion Technology, Raebareli, Ministry of Textile, Government of India (hereinafter referred to as NIFT) through proper channel for an open selection. No objection certificate has been issued by the competent authority of S.G.P.G.I. on 29.8.2013 in favour of the petitioner to apply on the post of Director, NIFT.
4. The petitioner thereafter appeared in interview and was subsequently selected and was offered appointment on the post of Campus Director, NIFT on contract basis vide letter dated 25.11.2013 for an initial period of one year from the date of assuming charge with the condition that on satisfactory performance during the period of probation, the period of contract for a further period of four years may be extended. Therefore, it was a contract appointment of five years.
5. On receipt of the aforesaid order dated 25.11.2013 the petitioner applied for grant of lien to his post of Associate Superintendent (Non-Medical) S.G.P.G.I. and the Chief Administrative Officer with the approval of President, S.G.P.G.I., Lucknow issued office order dated 13.1.2014 allowing the petitioner to maintain lien on his post for a period of two years.
6. Thereafter, the petitioner joined at NIFT as Campus Director on 15.1.2014.
7. However, the petitioner was informed by the Chief Administrative Officer, S.G.P.G.I. vide letter dated 25.1.2016 that on the petitioner's request of extension of lien of his post of Associate Superintendent (Non-Medical), S.G.P.G.I. such lien has been granted for a period of three years w.e.f. 16.1.2016 by the President, S.G.P.G.I.. Therefore, the tenure of the petitioner as Campus Director, NIFT was expiring on 14.1.2019. The Board of Governors, NIFT in its 44th meeting took a decision to extend the term of the petitioner for a further period of three years w.e.f. 15.1.2019 and the said extension was conveyed to the petitioner vide order dated 10.12.2018.
8. The petitioner thereafter moved an application on 12.12.2018 to the Director, S.G.P.G.I. requesting for further extension of his lien on the post of Associate Superintendent (Non-Medical) for a period of three years w.e.f. 16.1.2019. The petitioner was informed by the Chief Administrative Officer vide letter dated 3.5.2019 that the President, S.G.P.G.I. has granted permission to the petitioner for extension of service on his post of Associate Superintendent (Non-Medical), S.G.P.G.I. for three years w.e.f. 16.1.2019 for holding the post of Campus Director, NIFT. However, in this order it has been indicated that this order is being issued subject to the approval of the Governing Body.
9. Thereafter, the petitioner was informed on 2.7.2019 that the office order dated 3.5.2019 is being amended to the extent that the extension of lien period of the petitioner for a further period of three years under the special circumstances will be put up before the forthcoming Governing Body Meeting for decision. It was further informed that if the approval is granted by the Governing Body then this case will not be treated as precedent. Pursuant to the extension of lien by the opposite parties the petitioner continued with NIFT.
10. On 17.4.2020 the 91th Governing Body Meeting took place wherein at Agenda No. 91.17 was ' Extension of lien of Mr. Bharat Sah, Associate Superintendent for another three years' wherein it was categorically mentioned that the Agenda is for appraisal and post facto approval. The Governing Body in the same meeting decided that lien cannot be granted to the petitioner and passed the impugned decision.
11. On 23.4.2020 the respondent no. 3, the Director, S.G.P.G.I. issued a letter to the petitioner on his official e-mail ID of Director, NIFT whereby the petitioner was informed that his case for extension of lien was put up before the Governing Body i.e. opposite party no. 4 at its meeting dated 17.4.2020 and after due deliberation it has been decided that the lien cannot be granted to the petitioner and he should immediately join at S.G.P.G.I. latest by 30.4.2020 otherwise disciplinary proceedings will be initiated against him.
12. As per learned counsel for the petitioner since the petitioner was discharging his duties of Campus Director at NIFT, therefore, he could have, all of sudden, not given up his duties at NIFT for submitting his joining at S.G.P.G.I. The petitioner has, however, replied the aforesaid letter on 28.4.2020 to the respondent no. 3 informing his inability to join at S.G.P.G.I. in such a short notice, therefore, requested some time to rejoin at S.G.P.G.I. by 15.6.2020. When the petitioner did not receive any response of his letter dated 28.4.2020, under the compelling circumstances he submitted a letter dated 5.5.2020 before the respondent no. 3 seeking his voluntary retirement from service w.e.f. 5.5.2020. When the petitioner did not receive any response he again preferred letter dated 9.6.2020 pressing his application for voluntary retirement and for making payment of his post retiral dues.
13. On 7.7.2020 the petitioner received a letter dated 4.7.2020 wherein he was informed that his request dated 5.5.2020 of voluntary retirement from service has been rejected by the President, S.G.P.G.I. and the direction has been issued to submit his joining at S.G.P.G.I. forthwith.
14. Learned counsel for the petitioner has submitted that though the petitioner fulfills all requisite conditions for grant of voluntary retirement but no reason has been assigned while rejecting his request.
15. Therefore, the petitioner has prayed that this Court may kindly be pleased to quash the order dated 17.4.2020 passed by the respondent no. 4 (Annexure no. 3 to the writ petition), 23.4.2020 and 4.7.2020 both passed by respondent no. 2 & annexed as Annexure nos. 2 & 1 respectively. He has also prayed that the opposite parties be directed to consider the petitioner's application dated 5.5.2020 as fresh as per S.G.P.G.I. Regulations and the petitioner be paid all consequential service benefits. It has also been prayed that the authorities of S.G.P.G.I. be directed not to compel the petitioner to join back at S.G.P.G.I. and no disciplinary proceedings be initiated / conducted / concluded against him.
16. Per contra, Sri A.N. Trivedi, learned counsel for the S.G.P.G.I. has submitted that when a statutorily constituted body is entrusted with the power to take a decision in respect of a particular matter then a collective decision of statutory body is binding over the opinion or permission of an individual member, which is included even the Chairman / President of the statutory body who is required to chair the meeting.
17. Sri Trivedi has submitted that in terms of Section 11 of SGPGIMS Act of 1983 the Chief Secretary of the Government of U.P, is an ex officio President of the Institute who has been bestowed with certain specified functions. Section 11 of the Act of 1983 is extracted here under:
11(1) The Chief Secretary to the Government of UP shall be President of the Institute and shall also be Chairman of the Governing Body.
(2) The President shall, when present, preside at the Meetings of the Institute and shall have the following powers and duties, namely:
a) to ensure that the administration of the affairs of the Institute are conducted in accordance with this Act and the Rules and Regulations made there under and to take such steps: as he deems fit for the achievement of this object.
(b) to call for such information or records relating to the administration of the affairs of the Institute as he thinks fit.
(c) to exercise such other powers and perform such other duties as are assigned to him by this Act or as may be prescribed by Rules or laid down in the Regulations."
18. From perusal of the provision, it is apparent that the President is entitled to discharge certain statutory functions. However, in terms of provisions contained under Sl. No.5 in Schedule I of First Regulations 2011, the sole domain of considering the extension of lien beyond Two Years has been vested with the Governing Body of SGPGI.
19. In terms of the communication dated 02.07.2019, the Petitioner's request was placed before the Governing Body in its Meeting dated 16/17.04.2020 and vide, Agenda Item No.91.17, the Petitioner's request for extending his lien was rejected with direction to join by 30.04.2020 otherwise Disciplinary Proceedings shall be initiated. The decision of the Governing Body was communicated to the Petitioner, vide Letter dated 23.04.2020. The Resolution of the Governing Body dated 16/17.04.2020 against Agenda Item No.91.17 is extracted here under:
Agenda Item No. Particulars Deliberations & Resolutions 91.17 Extension of lien of Mr. Bharat Shah, Associate Superintendent for another 3 years "The Governing Body was apprised that Mr. Bharat Shah Associate Superintendent had been relieved wef 15.01. 2014 (forenoon) to join on the post of Campus Director at National Institute of Fashion Technology (NIFT), Ministry of Textiles, Government of India Rae-bareli on contract for which lien for the period of 02 years had been allowed after approval of President and 81" Governing Body dated 27.06.2014 After completion of 02 years of lien period Mr. Bharat Shah had again requested to extend the lien for another 03 years w.ef. 16.01.2016.The matter was placed before the 85 Governing Body dated 10.03.2016 and after due deliberation Governing Body had approved the extension of lien of Mr. Bharat Shah for another 03 years i.e. upto 15.01.2019. Thus he had been given the lien of 05 years in totality.
Mr Bharat Shah had again requested for extension of lien for another period of 03 years on expiry on 15.01.2019 which the President had directed that the proposal should be placed before the Governing Body for approval.
The Governing Body deliberated on the matter and decided this lien cannot be granted and he should join back latest by 30th April 2020 otherwise disciplinary proceeding will be initiated against him for termination"
Action: Chief Medical Superintendent
20. The Petitioner, vide Letter dated 28.04.2020 requested for extending the joining time uptil 15.06.2020 and in response thereof, the Petitioner was required to join back with immediate effect vide letter dated 08.05.2020. However, vide another Letter dated 05.05.2020 the Petitioner requested for Voluntary Retirement.
21. The Institute, vide letter dated 08.05.2020 directed the petitioner to join at SGPGI with immediate effect otherwise the disciplinary proceedings would be initiated in terms of the Resolution of the Governing Body dated 16/17.04.2020. Eventually, vide Order dated 04.07.2020 the Petitioner was communicated with the decision of the Competent Authority with regard to rejection of his request for Voluntary Retirement as the 'process' of initiating disciplinary proceedings have already begun.
22. Feeling aggrieved with the decision of the Governing Body dated 16/17.04.2020, its communicated dated 23.04.2020 and the rejection of his request for Voluntary Retirement dated 04.07.2020, the aforesaid Writ Petition has been filed with a further request for commanding the Respondents to consider the Petitioner's request dated 05.05.2020 with regard to Voluntary Retirement which has already been rejected.
23. The petitioner has not challenged the Office Order dated 09.10.2020, vide which the disciplinary proceedings have been initiated by suitably amending the Writ Petition. However, an Application for Interim Relief dated 09.11.2020 has been filed inter-alia praying for staying the impugned orders dated 04.07.2020 and 23.04.2020 passed by respondent No.2.
24. Sri Trivedi has further submitted that provisions contained at Sl. No. 5 of Schedule I of First Regulations 2011 empowers Governing Body of SGPGI to consider the extension of lien of an Employee beyond Two years. Section 11 of the SGPGI Act of 1983 provides for limited power of the President of Governing Body. The alleged extension of Three Years with effect from 16.01.2019, vide Office Order dated 03.05.2019 issued by the Chief Administrative Officer of SGPGI as recorded by the Petitioner is misconceived in terms of its amendment of the clarification, vide Order dated 02.07.2019 whereby the Office Order dated 03.05.2019 has been amended to the effect that instead of granting permission for extension of service of the Petitioner for Three Years with effect from 16.01.2019 is substituted with "Placing the Petitioner's request before the Competent Authority i.e. the Governing Body".
25. In terms of Schedule I of First Regulations 2011 read with the Order dated 02.07.2019, the Governing Body having resolved not to extend the Petitioner's lien and rather directed him to join the Institute by 30.04.2020 failing which the disciplinary proceedings would be initiated, the Petitioner was under obligation to comply the directions of his Employer.
26. The Petitioner has failed to substantiate as to how the Resolution of the Governing Body dated 16/17.04.2020 is allegedly erroneous or arbitrary, either a perusal thereof would indicate that the issue of the Petitioner's request for extending his lien for Three Years beyond 16.01.2019 was deliberated after considering the President's Note and consequently a conscious decision was taken for not extending the Petitioner's lien.
27. The continuation of Petitioner's lien with effect from 16.01.2019 up till 30.04.2020 i.e. when he was required to submit his joining, the Petitioner has neither been penalized nor any adverse decision has been taken for the period when his lien had expired i.e. 16.01.2019 up till the date when he was required to submit his joining at SGPGI i.e. 30.04.2020.
28. The Resolution of the Governing Body dated 16/17.04.2020 against Agenda Item No.91.17 with regard to initiation of disciplinary proceedings of termination of his service in case he fails to join his services on 30.04.2020 are not conclusive as the same is dependent upon the Enquiry Report and the decision of the Disciplinary Authority. Even otherwise, the disciplinary proceedings initiated, vide Office Order dated 09.04.2020 having not been challenged in the main Writ Petition, the same could not be the subject matter of the dispute raised by means of the instant Writ Petition. Accordingly, it is apparent that the Resolution of Respondent No.4 1.e. the Governing Body of SGPGI is neither arbitrary nor mechanical but the same have been passed with total application of mind strictly in accordance with Rules and Regulations of the SGPGI.
29. The General Rule for accepting the Voluntary Retirement is basically in two folds viz. (a) the incumbent having attained a particular age or have completed the requisite period of service; AND (b) no disciplinary proceedings having been initiated or pending.
30. The General Rule of Law would not be applicable on the Petitioner who is governed by Service Regulations of SGPGI namely First Regulations of 2011 and Regulation 95 whereof, categorically provides that the request for Voluntary Retirement can be rejected if disciplinary proceeding is pending or in process against the employee. Regulation 95 reads as under :
95(1) "A faculty member, officer or employee may seek voluntary retirement by giving notice of three months to the appointing authority after attaining the age of fifty years or after completing a qualifying service of twenty years;
Provided that the appointing authority may refuse such request for voluntary retirement within the period of notice if a disciplinary proceeding is pending or in process against the employee.
31. According to Oxford Dictionary, the word "Process" has been defined as "a continuous and regular action or succession of actions taking place or carried on in a definite manner and leaving to accomplishment of some results". The synonym of the word "succession" is "sequence".
32. The Hon'ble Supreme Court, although in case involving the question of process of manufacturing pertaining the revenue of the Government (Excise) in the case CCE Vs Rajasthan State Chemical Work, reported (1991) 4 SCC 473; has held that the "Process" include any activity or operation which is an essential requirement and is so related to the further operation for the end result would also be a process....."
33. The Petitioner's reliance on the decision of the SGPGI with regard to accepting the resignation of various Doctors in the recent past, itself cannot be a ground to maintain the instant Writ Petition as request of Voluntary Retirement of every Employee/ Officer is to be considered on its peculiar facts and circumstances.
34. There is a conscious decision of the Statutory Authority i.e. the Governing Body of SGPGI for rejecting the Petitioner's request for extension of his lien after due deliberations and after considering the entire facts and circumstances including the note of then President of the Governing Body, the Petitioner's contention that the same is non speaking is patently misconceived as in terms of the Judgment of this Hon'ble Court in the case of Aditya Swarup Pandey Vs Srawasthi Gramin Bank and Others reported in (2019) (37) LCD 2327 the reasoning of every individual member is not to be necessarily reproduced in the decision of a Statutory Body Corporate.
35. It is further no more res-integra that when a decision has to be taken by a Statutory Body consisting of various Members, any opinion/ approval/permission of an individual member which includes the Chairman/ President of the Statutory Body without approval of the Statutory Body i.e. the Governing Body of S.G.P.G.I. as a whole Body Corporate would not vest any right on an employee. Further, the notings are mere expression of opinion of an individual and shall not vest any right on the incumbent.
36. While replying the aforesaid contention of Sri A.N. Trivedi, Sri Sunil Sharma has reiterated his earlier submissions and further submitted that, however, the disciplinary proceedings against the petitioner has been initiated but no charge-sheet has been issued and the disciplinary proceedings can only be said to be pending on the service of charge-sheet. Therefore, in the present case it may not be presumed that any departmental proceeding is pending against the petitioner. Therefore, Sri Sunil Sharma has submitted that the impugned orders are patently illegal, arbitrary and uncalled for and the same are liable to be set aside.
37. Having heard the learned counsel for the parties and perused the material on record.
38. One of the questions before the Court is that as to whether if any decision is taken by the Chairman / President of the Statutory Body as an individual capacity and pursuant to that decision if the employee acts upon further and later on if such decision is not accepted by the statutory body the conduct of an employee acting upon the decision of an individual authority would be a mis-conduct or a bona fide act?
39. Further, as to whether the information provided to the employee that if he would not follow the direction of the superior authority the departmental inquiry for awarding major punishment would be initiated may be treated as initiation of departmental inquiry or the departmental inquiry is said to have been initiated after service of charge-sheet upon the incumbent?
40. Further more, as to whether the initiating the departmental inquiry and appointing the inquiry officer directing him to conclude the departmental inquiry within stipulated time, however, without issuing the charge-sheet, after the application of the petitioner seeking voluntary retirement may be treated as bar in view of the Regulation 95 of the General Rules of the SGPGI for accepting the voluntary retirement in the light of twin conditions of such Regulation viz.
(a) the incumbent having attained the particular age or having completed the requisite period of service i.e. 20 years; and
(b) no disciplinary proceedings having been initiated or pending.
41. There is no quarrel on the point that the petitioner was granted extension of service for three years w.e.f. 16.1.2019 for holding post of Campus Director, NIFT by the President, SGPGI subject to the approval of the Governing Body. However, the Governing Body has refused such extension. The petitioner in a bonafide manner continued on the post of Campus Director, NIFT, Raebareli legitimately expecting that since the President of SGPGI is also President / Chairman of the Governing Body of SGPGI, therefore, the said decision of the President would be upheld by the Governing Body. There is no doubt that the decision of the Governing Body would be binding over the opinion or permission of an individual member including the Chairman / President of the statutory body but at the same time it may not be said to be any lapse on the part of the petitioner to continue on the post of Campus Director, NIFT pursuant to the permission being granted by the President for holding the post for further three years w.e.f. 16.1.2019. Therefore, the conduct of the petitioner continuing on the post of Campus Director, NIFT, Raebareli is bona fide conduct in view of the facts and circumstances of the present case.
42. Admittedly, the petitioner submitted an application for voluntary retirement on 5.5.2020 when no departmental inquiry was pending against him. Therefore, the petitioner was fulfilling both the conditions of concerning general rule for accepting voluntary retirement inasmuch as the petitioner has already attained the required age and has completed the requisite period of service and no disciplinary inquiry was initiated or pending against the petitioner at that point of time.
43. As a matter of fact, the departmental inquiry can be said to have been initiated against the petitioner vide office order dated 9.10.2020 (Annexure C.A.-1 to the counter affidavit dated 11.11.2020) which provides that the departmental inquiry is being initiated against the petitioner under Rule 7 of 1999 Rules appointing the inquiry officer with the direction that the said inquiry be concluded within a period of two months. The impugned order dated 23.4.2020 (Annexure no. 2 to the writ petition) is a sort of warning to the effect that if the petitioner does not submit his joining at SGPGI on or before 30.4.2020 the departmental inquiry for awarding major punishment would be initiated against him.
44. The law is trite on the point that the proceedings of departmental inquiry starts when the charge-sheet is provided to the incumbent seeking his explanation / defense reply. The rationale behind it is very clear that the disciplinary authority can take any decision on the conduct of an employee or can absolve him considering his / her bona fide, or could pass any alternative or substitute order in stead of issuing charge-sheet for conducting full fledged disciplinary inquiry. However, as soon as the charge-sheet is provided to the incumbent indicating the charges then it would be the very first stage of initiation of departmental inquiry.
45. Therefore, the impugned order dated 23.4.2020 (Annexure no. 2) could not be treated as if the departmental inquiry has been initiated against the petitioner. It was, at the best, a warning to the effect that if the petitioner does not obey the direction of the competent authority the departmental inquiry against the petitioner for awarding major punishment may likely to be initiated. Therefore, the said letter may not be treated that the departmental inquiry was initiated against the petitioner and in the meantime the petitioner had submitted his application dated 5.5.2020 for seeking voluntary retirement. Therefore, his case was fit to accept the voluntary retirement in terms of Regulation 95 of General Rules of SGPGI.
46. Besides, the letter dated 9.10.2020 (Annexure no. C.A.-1 to the counter affidavit dated 11.11.2020) is providing that the departmental inquiry has been initiated against the petitioner and inquiry officer has been appointed with the direction to conclude the departmental inquiry within a period of two months. However, by that time no charge-sheet was provided to the petitioner. The said office order may also not to be treated as initiation of departmental inquiry but if the intention of the competent authority is considered to the effect that the authority has made up its mind to initiate the departmental inquiry against the petitioner appointing inquiry officer, even then the petitioner had already submitted his application dated 05.05.2020 for seeking voluntary retirement. Therefore, there was no legal impediment with the disciplinary authority not to accept the application of the petitioner dated 5.5.2020 seeking voluntary retirement in terms of Regulation 95 of General Rules of SGPGI and rejecting the said request of the petitioner on the pretext that the departmental inquiry against the petitioner was initiated, is per se illegal.
47. During the course of the arguments, I have considered one relevant aspect which has been indicated in para 33 of the writ petition whereby it has been categorically indicated that the post of the petitioner i.e. Associate Superintendent (Non-Medical) has been declared as 'Dying Cadre' and after his joining at NIFT, Raebareli on 15.1.2014 none has been posted on that post and that post will not exist after the retirement of the petitioner on 3.11.2023, the date of superannuation of the petitioner. By means of para 35 of the counter affidavit dated 11.11.2020, the opposite party replied the contents of para 33 of the writ petition submitting that merely because the petitioner's post at SGPGI has been declared as 'Dying Cadre', it does not give a right to the petitioner to disobey the direction of the superior. However, it is also clear from para 35 of the counter affidavit that neither anyone has been posted on the post of Associate Director (Non-Medial) at SGPGI after 15.1.2014 when the petitioner submitted his joining at NIFT, Raebareli nor any person would be appointed on such post after the superannuation of the petitioner and admittedly such post has been declared as 'Dying Cadre'.
48. Considering the facts and circumstances of the issue in question in entirety, I do not find any cogent reason for not accepting the application of the petitioner dated 5.5.2000 whereby the petitioner has sought voluntary retirement when he was fulfilling the twin conditions of Regulation 95 of General Rules of SGPGI i.e. he has already completed the required age and completed the requisite period of service and no disciplinary inquiry was initiated or pending against him at that point of time. For the repetition sake I again say that the departmental inquiry can be said to have been initiated or pending w.e.f. the date when the charge-sheet is issued against an employee and there is no doubt that on 5.5.2020 no departmental inquiry / disciplinary proceedings was initiated or pending against the petitioner. I also fail to understand as to why the petitioner was being forced to submit his joining on such post which has been declared as 'Dying Cadre' and none was posted on such post after 15.1.2014 when the petitioner submitted his joining at NIFT, Raebareli nor any person would be holding such post after 3.11.2023, the date of superannuation of the petitioner.
Apex Court in re: Uco Bank & Another vs. Rajinder Lal Capoor reported in (2007) 6 SCC 694 has held as under :
"The aforementioned Regulation, however, could be invoked only when the Disciplinary Proceedings had clearly been initiated prior to the respondent's ceases to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder, i.e., continue "as if he was in service. Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show cause notice. It is initiated only when a chargesheet is issued (See Union of India etc. etc. v. K.V. Jankiraman, etc. etc. reported in AIR 1991 SC 2010). This aspect of the matter has also been considered by this Court recently in Coal India Limited & others v. Saroj Kumar Mishra [2007 (5) SCALE 724] wherein it was held that date of application of mind on the allegations levelled against an officer by the Competent Authority as a result whereof a chargesheet is issued would be the date on which the disciplinary proceedings said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd. (supra) this Court held :
"13. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a chargesheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
14. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed there cannot be any doubt. whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard."
It was further more observed that:
"20. A departmental proceeding is ordinarily said to be initiated only when a chargesheet is issued."
49. In view of what has been considered above the impugned orders dated 4.7.2020 whereby the request of the petitioner for voluntary retirement from service has been turned down, the decision of opposite party no. 4 dated 17.4.2020 communicated to the petitioner on 23.4.2020, whereby the petitioner has been informed that if the petitioner does not submit his joining pursuant to the impugned resolution taken in 91st meeting of the Board of Governors, SGPGI by 30.4.2020 the disciplinary proceedings shall be initiated against the petitioner for terminating his services, which are contained as Annexure nos. 1, 2 and 3 to the writ petition are patently illegal, arbitrary, discriminatory and violative of Article 14,16 and 21 of the Constitution of India so those are not sustainable in the eyes of law.
50. Accordingly the writ petition is allowed.
51. The order dated 4.7.2020, 23.4.2020 passed by the opposite party no. 2 and the resolution of 91st Governing Body meeting of SGPGI, Lucknow dated 17.4.2020 as contained in Annexure nos. 1 to 3, so far as it relates to the petitioner are hereby set aside / quashed.
52. A writ in the nature of mandamus is issued commanding the opposite parties to reconsider the application of the petitioner dated 5.5.2020 whereby the petitioner has sought voluntary retirement within a period of two months ignoring the earlier impugned orders, as aforesaid, and intimate the petitioner such decision forthwith.
53. The petitioner shall also be entitled for all consequential service benefits admissible as per law.
54. Till the appropriate decision is taken the petitioner shall neither be compelled to submit his joining at S.G.P.G.I. nor any coercive action shall be taken against him.
55. Before parting with, I put a note of appreciation for Ms. Shama Parveen, Law Clerk of this Court, for her useful assistance.
Order Date :- 09. 09.2021 Om (Rajesh Singh Chauhan, J.)