Kerala High Court
Philipose vs State Bank Of Hyderabad on 5 July, 2001
Author: J.B. Koshy
Bench: J.B. Koshy
JUDGMENT J.B. Koshy, J.
1. A classic example of unfairness is manifested int eh facts of this case illustrating how thanklessly an employee who served an establishment till his retirement for four decades with meritorious promotions and extension of time for retirement can be victimized and harassed by unexplained prolonged proceedings for seven and a half years and delayed payment of retirement benefits. Petitioner served the 1st respondent public sector bank for about 40 years, out of which 17 years as Manager in various branches in the State. he reached the age of superannuation on 7.5.1981. But since his service was very much useful to the Bank, considering his efficiency he was given five years extension and he retired on 31.5.1986 after a credit worthy unblemished service for more than 4 decades. A charge sheet was issued to him just before the extended date of retirement with undue hurry raising various allegations. As per service conditions even though no charge sheet can be issued after the date of retirement, if charges are issued before the date of retirement, proceedings can be continued. He gave explanation. A fresh charge sheet dated 3.6.86 was issued admittedly after the retirement. He gave explanation to that charge also. There was undue delay in proceeding with the enquiry. No enquiry or proceedings were conducted in pursuant to the charge sheet and no retirement benefits were also given until he approached this court by filing a Writ Petition O.P. No. 2687/87 which was disposed of on 5.10.1988 by Ext. P6 judgment. This Court held that if the second charge sheet contain new allegations, it will not lie as it was issued after retirement. With regard to the first charge sheet this Court observed as follows:
"Nevertheless petitioner, who has served for a long time under the respondents, cannot be kept away from his retirement benefit indefinitely by prolonging the disciplinary proceedings. Respondents will take all steps to ensure that the disciplinary enquiry is completed and orders are passed without any delay".
After disposal of the above Writ Petition only, steps were initiated to appoint an Enquiry Officer and proceedings were started. The enquiry was also a prolonged one and Enquiry Officer submitted a report on 5.7.1991, three years after the judgment and five years after the retirement. According to the petitioner the log unexplained delay in completing the enquiry proceedings itself vitiated the enquiry and victimization and mala fides is implicit in the prolonged tragedy. To add to the misery of the petitioner, after retirement, petitioner was asked to stay at Hyderabad, till the enquiry proceedings are over and enquiry prolonged beyond reasonable limit. Being a retired employee without any subsistence allowance or benefit he was compelled to hang over at Hyderabad without allowing him to have a peaceful stay at his home State by prolonging the disciplinary proceedings without any valid reasons whatsoever.
2. The Enquiry Officer after considering the evidence clearly found that petitioner was not guilty on any of the charges alleged against him. Ext. P7 is the enquiry report. it would show that the entire evidence adduced by both sides were considered elaborately and meticulously by the Enquiry Officer. The petitioner was given Ext. P8 letter dated 27th July, 1991 forwarding the enquiry proceedings. It states as follows:
"Please refer to our letter No. DPC/324 dated the 27th June, 1989, advising the decision to conduct the enquiry into the charges alleged against you and communicated to you vide charge sheet No. DPC/543 dated the 29th April, 1986 and appointing Shri. A. Subramanyan, Officer, SMGS-V, as the Inquiring Authority to conduct the enquiry.
2. On conclusion of the enquiry, the Inquiring Authority has submitted his report dated the 5th July, 1991, a copy of the same is enclosed. A copy of Enquiry Report which is now made available to you is without prejudice to the Special Leave Petition filed by the Bank and pending before the Supreme Court and subject to the decision that may be pronounced by the Supreme Court.
3. You are, hereby, advised to submit your representation, if any, thereon within 15 days from the date of receipt of this letter.
4. Please note that, incase we do not receive any submissions before the above stipulated time, it will be deemed that you have no submissions to make and the Disciplinary Authority will take a suitable decision".
In the above letter it is not stated that disciplinary authority is not agreeing with the findings of the Enquiry Officer in any of the points. It is simple notice forwarding the enquiry proceedings to the party. Even thereafter about two years no orders were passed and no retirement benefits were paid. Hence, petitioner filed this Original Petition. On getting the notice, disciplinary authority passed Ext. P5 order dated 14.9.1993 disagreeing with the findings of the Enquiry Officer on certain minor charges only and then imposing a retrospective punishment of compulsory retirement on the actual date of the retirement. This type of order passed by a public sector undertaking is a suggestive of victimization and even after Ext. P5 order, his full pension or retirement benefits were not granted till intention orders were passed by this Court to make mala fides writ large. In the counter affidavit filed by the bank no attempt was made to explain the reason for delay in completing the enquiry or issuing Ext. P5 after two years of submission of enquiry report or delay in payment of retirement benefits.
3. In fact Ext. P5 order was passed after filing this Original Petition alleging that even though Enquiry Officer has finalised proceedings and exonerated him as per the direction of this Court petitioner was not given any retirement benefits. After getting notice of this Original Petition and after two years of the submission of enquiry report absolving petitioner of all charges, Ext. P5 order was passed. Then on the basis of the interim direction of this Court gratuity and other benefits were paid. This Court again directed the respondents to pay the arrears of pension by interim order dated 22.12.1993 and that was also paid. Even though respondent is a Bank doing finance business and working in public sector, it needed an order from this Court to release the arrears of pension as well as DCRG due to the petitioner.
4. It is true that if the charge sheet was issued before the retirement, the respondent Bank may be able to continue the proceedings in view of the service Rule. But retrospective dismissal or retirement order in the nature as in Ext. P5 cannot be passed as petitioner has completed the full years of service and again another five years extended service because of his efficiency and he completed the extended period also. The matter is covered by a Supreme Court decision in Jeevaratnam v. State of Madras (AIR 1966 SC 951). There it is stated that if a retrospective dismissal order is passed, it is severable and it will act only prospectively. Here Ext. P5 order was passed only after 7.5 years of actual retirement of the petitioner, that too after the extended period of service. Therefore, retrospective compulsory retirement will not be justified in any facts of the case.
5. The next contention is that Ext. P5 cannot be sustained because disciplinary authority has not accepted the Enquiry Officer's report and took a different view without complying with the principles of natural justice. It has been repeatedly held by the Supreme Court that disciplinary authority can differ from the findings of the Enquiry Officer provided points of difference are put to the employee concerned and only after explanation is received on the show cause notice issued to the employee the disciplinary authority can pass the order. But here no show cause notice was given when the petitioner who was found not guilty by the Enquiry Officer stating the reasons for disagreement of the disciplinary authority. Findings of the Enquiry Officer was forwarded to the petitioner for a representation. No show cause notice was issued proposing a different view. It is not stated in Ext. P8 that disciplinary authority is differing from any of the points specifically found by the Enquiry Officer and petitioner was not asked to give any explanation to those points. But simply findings were forwarded for his representation. Since he was not found guilty, there was nothing for the petitioner to represent against the enquiry report. But in fact petitioner has filed four representations seeking mainly to release his due pension and other retirement benefits without delay. The bank did not adhere to the principles of natural justice and disciplinary authority differed from the findings of the Enquiry Officer without giving opportunity to him. On that ground also Ext. P5 is liable to be set aside (See Ram Kishan v. Union of India ((1995) 6 SCC 157 at page 161) and S.B.I. v. Arvind K. Shukla (2001 AIR SCW 2472)).
6. It is submitted by learned counsel appearing for the Bank that because of the compulsory retirement, there is no monetary loss to the petitioner. Ext. P5 will seriously affect the reputation of the petitioner after his trust worthy service for four decades and extended service. The disciplinary action was completed and Ext. P5 order was passed only after more than 7 years. Arrears of pension as well as DCRG was paid by the Bank only after the interim directions issued by this Court putting the petitioner into untold difficulties, loss of reputation and mental agony. Now it is submitted that the petitioner is terminally bed ridden due to Cancer in an aggravate stage.
7. The petitioner after long years of efficient service had to approach this Court for getting arrears of pension as well as DCRG. Learned counsel for the petitioner pressed for granting 18% interest as respondent bank will charge much higher interest if the payments to it are delayed. It is submitted by the counsel for the respondents that there is no prayer for interest. Prayer No. (iv) of the Writ Petition is as follows:
"(iv) a Writ of Mandamus or any other appropriate Writ, Order or directions commanding the respondents to pay adequate compensation to the petitioner for harassing him with the enquiry proceedings for the last more than 7 years since retirement."
Petitioner was unnecessarily compelled to stay at Hyderabad pending completion of disciplinary proceedings, compelling to incur heavy expenditure. However, I am not ordering separate compensation, but gratuity and pension are his right earned by him. Even according to the respondents, punishment of compulsory retirement will not deprive him any of monetary benefits including pensionary benefits. Therefore, award of interest from the date of retirement is only a natural consequence. In the totality of circumstances, the petitioner is entitled to get 12% interest for the arrears of DCRG as well as arrears of pension from the respective due dates till its payment, even though taking into account the sufferings of the petitioner he is entitled to more compensation that the interest as directed to be paid.
8. The Original Petition is allowed with cost of Rs. 10,000.00. The amount of interest and cost ordered shall be paid within three months from today. Bank will be free to realise the amount from the officers who are responsible for delay in completion of its proceedings.