Allahabad High Court
Mahesh Chandra vs Managing General Director And 3 Others on 16 April, 2024
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:66564 Court No. - 34 Reserved Case :- WRIT - A No. - 13546 of 2023 Petitioner :- Mahesh Chandra Respondent :- Managing General Director And 3 Others Counsel for Petitioner :- R.K. Singh. Rajput Counsel for Respondent :- A.S.G.I.,Pashupati Nath Tripathi Hon'ble J.J. Munir,J.
1. The petitioner was a Class-IV employee with the Allahabad Bank, appointed on 02.07.1986. He was promoted as a Clerk-cum-Cashier on 23.10.2006. When posted with the Bank's Babai Branch at Jalaun, he was charged with embezzling a sum of Rs.11,000/- deposited by a certain customer, Smt. Vineeta Devi in her Savings Bank Account. He was said to have effected the embezzlement by issuing the cardholder a cash receipt, which was not posted in her account. He was served with a show cause notice dated 05.06.2009, asking him to show cause why disciplinary proceedings be not initiated against him. A charge-sheet was issued to the petitioner on 31.05.2010, carrying the following charges:
"1) आपने दिनांक 01 मई 2008 को श्रीमती विनीता देवी पत्नी श्री सर्वेश कुमार के बचत खाता संख्या 2908 में रू0 11000/- (ग्यारह हजार मात्र) की राशि का गबन किया तथा खाता धारक को उक्त राशि की जमा रसीद (counterfoil) जारी की एवं पासबुक में संबंधित प्रविष्टि दर्ज की परन्तु इस राशि की बैंक की बहियों / नकद अवशेष रजिस्टर में प्रविष्टि दर्ज नहीं की। आपके इस कृत्य से बैंक की छवि पर प्रतिकूल प्रभाव पड़ा।
2) बाबई शाखा के निम्नलिखित ऋणियों ने शिकायत प्रेषित की है कि उन्हें उनके नाम के सम्मुख वर्णित ऋण खाते से संबंधित धनराशि का भुगतान नहीं किया गया है उक्त समस्त शिकायतों की मुख्य विषयवस्तु ऋणों की फर्जी तरीके से स्वीकृति/ वितरण/ भुगतान है। चूँकि निम्न शिकायतकर्ताओं से संबंधित ऋणों के भुगतान की अवधि में कैश विभाग का कार्य अपनी पदस्थापना की तिथि से आपके द्वारा ही संपादित किया जाता रहा। इन शिकायतों से संबंधित पुलिस में दर्ज की गई 02 प्राथमिक सूचनाओं (FIR) में आपका नाम भी सम्मिलित है।
उक्त शिकायतकर्ताओं के विवरण निम्नलिखित हैंः-
क्रम सं0 नाम पता खाता सं0 1 शिवराम पुत्र अतपाल सिंह नीम गाव केसीसी 300937 केएसवाई 287
2. The petitioner has said that there was some delay in posting the customer's account in the books of the Bank, because some of the bank notes were old and torn, which had been returned and Smt. Vineeta Devi deposited these later on. The petitioner was suspended from service on 04.07.2009 and had thereafter never been reinstated. While under suspension, the petitioner submitted an application form dated 28.02.2023, requesting to join the pension scheme, which was duly received. It is pleaded that while the petitioner was suffering suspension pending inquiry, the Allahabad Bank amalgamated with the Indian Bank under the Indian Bank Scheme, 2020 w.e.f. 1st April, 2020. In terms of paragraph No.2 of the Scheme of Amalgamation, the transferee Bank means the Indian Bank and the transferor Bank means the Allahabad Bank.
3. The petitioner attained the age of superannuation on 18.02.2023, but the pending inquiry against him has not been concluded. It is the petitioner's case that despite attaining the age of superannuation, suffering a suspension from 04.07.2009 to 28.02.2023, the inquiry proceedings against the petitioner have not been concluded and are still pending. The petitioner, therefore, sought his post retiral dues, including pension, arrears of increment, medical facilities, arrears in terms of the bipartite settlement, dues on account of leave encashment, gratuity and payment of his emoluments during the period of suspension. The petitioner says that he has been paid Rs.8,65,651/- on account of his provident fund, out of which, the respondent Bank deducted a sum of Rs.7,07,452/- incorrectly. The petitioner, by an order dated 28.02.2023 passed by the Assistant General Manager (Human Resource), Indian Bank, was intimated of his 'separation from services of the Bank' w.e.f. 28.02.2023, not amounting to retirement upon attaining the age of superannuation. This separation from services was directed because disciplinary proceedings are pending against the petitioner and the Bank did not intend to retire him, perhaps to retain their disciplinary jurisdiction.
4. The aforesaid order dated 28.02.2023 indicates that he would be paid a provisional pension, equivalent to his regular pension, pending disciplinary proceedings, in accordance with Regulation 46 of the Indian Bank (Employees') Pension Regulations, 1995. However, no gratuity would be payable. The other terminal benefits would also be withheld, except the petitioner's contribution to the provident fund. As it transpires, the petitioner was paid his own contribution to the provident fund and nothing else, because he had not opted for the pension scheme, as the Bank say. The order dated 28.02.2023 was followed, close on heels by the impugned order dated 02.03.2023, intimating the petitioner that as per records available with the Bank, he had not opted for pension during the period of his service. He was not a pension optee, and, therefore, not eligible for provisional pension, as per Pension Regulations, 1995 last mentioned. The petitioner has challenged the said order through the present writ petition.
5. It is the petitioner's case that he submitted an application form for pension showing his particulars, but the respondent Bank have declined to accept it. It is the petitioner's case that the respondent Bank had demanded the petitioner's option for pension in the year 2010 and he submitted an application form for commutation of pension with medical examination on 28.02.2023, but to no avail. The petitioner says that he filled up the said pension form on the basis of his pensionable service from 02.07.1986 to 2023, a total period of 37 years. It is also his grievance that he has not been considered for promotion during all these years or paid increments. He has been in receipt of very low emoluments during the said period of time, perhaps subsistence allowance, and yet the respondent Bank did not conclude the inquiry from 2009 to 2023, until his age of superannuation. The petitioner urges that a disciplinary inquiry should be concluded under the Banks Rules within a maximum period of three years, but here it has remained pending for fifteen years. He has pleaded his innocence on the charge of embezzling the sum of Rs.11,000/-. In sum and substance, now he has demands all his post retiral benefits, including pension.
6. A notice of motion was issued on 17.08.2023 and a counter affidavit dated 27.08.2023 was filed on behalf of the Bank, to which the petitioner has filed a rejoinder dated 15.09.2023. This petition was formally admitted to hearing on 18.10.2023, which proceeded forthwith. Judgment was reserved.
7. Heard Mr. R. K. Singh Rajput, learned Counsel for the petitioner and Mr. P. N. Tripathi, learned Counsel appearing on behalf of respondent nos. 1, 2 and 3.
8. The respondents' case in the counter affidavit is not at variance with the petitioner that he was suspended pending inquiry for his misdemeanour while posted at the Bank's Babai Branch. In addition, it is said that apart from the disciplinary proceedings pending against the petitioner, some sixteen FIRs were lodged by customers against one Sher Singh, the then Branch Manager of Babai Branch, who had financed KCC and KSY advance fraudulently. In five out of these sixteen FIRs, the petitioner is also a co-accused for his involvement in facilitating irregular/ fraudulent financing by the Branch. The petitioner was arrested and remained in judicial custody from 19.05.2008 to 29.04.2009. The Bank too lodged an FIR against the petitioner on 02.02.2011 being Crime No.09 of 2011 with Police Station Churkhi, District Jalaun in the matter involving embezzlement of the customers' money, subject matter of the disciplinary proceedings. The following five criminal cases are pending against the petitioner:
"1. Crime No.289 of 2007, under Sections 420, 467, 468 IPC, P.S. Churkhi, District Jalaun;
2. Crime No.286 of 2007, under Sections 420, 467, 468 IPC, P.S. Churkhi, District Jalaun;
3. Crime No.295 of 2007, under Sections 420, 467, 468, 506 IPC, P.S. Churkhi, District Jalaun;
4. Crime No.288 of 2007, under Sections 420, 467, 468 IPC, P.S. Churkhi, District Jalaun; and,
5. Crime No.76 of 2007, under Sections 420, 467, 468, 471, 406 IPC, P.S. Churkhi, District Jalaun."
9. The last FIR was lodged by the Senior Manager of the Allahabad Bank, the respondent Bank's predecessor. At the preliminary hearing in the departmental inquiry held on 27.01.2011, proceedings were adjourned to 24.02.2011. On the said date, the defence assistant, appearing for the petitioner, requested that the departmental proceedings be stopped pending conclusion of criminal proceedings in accordance with the Memorandum of Settlement on Disciplinary Action Procedure for Workmen dated 10.04.2002 (for short, 'the Memorandum of Settlement). Accordingly, vide letter dated 29.06.2011, a decision was taken to stay departmental proceedings pending criminal trial.
10. It is the respondents' case that the departmental proceedings were kept pending till conclusion of trial invoking Clause 4 of the Memorandum of Settlement. Pending the departmental proceedings and the criminal trial, the petitioner attained the age of superannuation on 28.02.2023. Therefore, by an order of that date, he was separated from Bank's service, not amounting to retirement. The petitioner is not entitled to gratuity till proceedings against him are over and the Bank's contribution to the provident fund has been withheld. However, the petitioner's own contribution, being a sum of Rs.8,65,651.02 has been credited to his account on 27.03.2023, after adjusting the provident loan balance of Rs.35,783.92. In addition, there was an outstanding loan balance along with interest to the tune of Rs.7,07,452/- in the staff overdraft, which was adjusted on 28.03.2023. The respondent Bank say that the petitioner has received subsistence allowance as per his eligibility while under suspension.
11. So far as the award of regular increment is concerned, according to service rules, an employee under suspension is not entitled to earn increments. In sum and substance, the submission of the respondent is that so far as the delay in concluding the departmental proceedings is concerned, it is on account of the petitioner himself asking for a stay of those proceedings, relying on the Memorandum of Settlement. About the petitioner's claim for payment of post retiral benefits, the Bank's stand is clear. They say that the petitioner could be paid provisional pension, provided he opted for the pension scheme. He has not. Out of his provident fund, the petitioner could be paid his own contribution, but not the employer's, pending disciplinary proceedings. He has been paid his own contribution after adjusting an outstanding loan/ overdraft. Gratuity and other terminal benefits are not payable until the disciplinary proceedings come to an end. So far as the increments are concerned, these are not earned during the period of suspension. It is on the basis of these facts pleaded that the respondent Bank seek to resist the petitioner's case.
12. Upon hearing learned Counsel for the parties, this Court is of opinion that the petitioner's case is one of hardship, but he is largely to blame himself for the circumstances he is placed in. The petitioner could be in enjoyment of a provisional pension, equivalent to his pension, in accordance with the Pension Regulations of the Bank, but he did not opt for the pension scheme in time. The only record about exercising the option that the petitioner has brought before this Court is the one dated 28.02.2023, which was the date of his superannuation. The petitioner has not been able to produce any evidence to show that he opted for the pension scheme, whenever he might have been called upon, during the long course of his service, much of it was spent under suspension pending disciplinary proceedings.
13. It is true that a suspension from service continuing for a period of 15 years is absolutely unacceptable in view of the settled position of the law in Ajay Kumar Choudhary v. Union of India through its Secretary and another, (2015) 7 SCC 291. But, in this case, the petitioner has virtually opted for this position. He has requested the disciplinary proceedings to be stayed pending trial. Now, a trial is a matter over which the parties do not have control. The petitioner is facing prosecution in five criminal cases and what time the Court would take to conclude the trial is certainly not in the hands of the Bank, or for that matter, the petitioner largely. The petitioner seems to have avoided conclusion of the disciplinary proceedings against him by invoking the protection of Clause 4 of the Memorandum of Settlement between the Bank and their workmen. This does provide vide Clause 4 that if during the pendency of disciplinary proceedings, the employee is put on trial, such proceedings shall be stayed pending completion of the trial, after which the provisions mentioned in Clause 3 above, shall apply. This Clause in any case would govern the pending disciplinary proceedings, inasmuch on the same charge, that is subject matter of the disciplinary proceedings, the Bank have lodged an FIR against the petitioner, which after investigation, has led the petitioner being put on trial. Moreover, in this case, the petitioner has specifically invoked the aforesaid clause of the terms of settlement and got the disciplinary proceedings against him stayed. If the petitioner is ultimately acquitted, the disciplinary proceedings against him shall follow what is provided in Clause 3 of the Memorandum of Settlement. Pending the disciplinary proceedings, which have now to await conclusion of the trial, the petitioner cannot be paid his other post retiral benefits, except his own contribution to the provident fund. We have already remarked that he could be paid provisional pension equivalent to his pension, but the petitioner has not exercised the option to receive a retirement pension.
14. In the circumstances, no relief for the present can be granted to the petitioner in the present writ petition. It would be open to the petitioner to seek an expeditious conclusion of the pending trial or trials against him. Of course, upon conclusion of the trial, the petitioner's case ought to be dealt with by the respondents in accordance with Clause 3 of the Memorandum of Settlement and final orders passed expeditiously.
15. This writ petition is, accordingly, disposed of in terms of the aforesaid orders.
16. There shall be no order as to costs.
Order Date :- 16.04.2024 Anoop (J.J. Munir, J.)