Andhra HC (Pre-Telangana)
P. Ch. Jogi Raju vs The State Bank Of India, Rep. By Its ... on 26 April, 1996
Equivalent citations: 1996(3)ALT166
ORDER G. Bikshapathy, J.
1. To retire peacefully or to continue reluctantly is the predicament of the petitioner. As the three Writ Petitions are inter-related, they are decided under common order.
2. The facts are in short compass. In W.P.No. 23990/95 the petitioner is seeking writ of Mandamus declaring the action of the respondents in not retiring him from 31-1-1990 or alternatively from 1-5-1990 as illegal and arbitrary and for consequential reliefs.
3. The petitioner joined the State Bank of India (SBI) as Cashier on 7-2-1958. Subsequently, he was promoted to the Officer cadre with effect from 15-4-1972. On 31-1-1990 he submitted application seeking voluntary retirement in accordance with Regulation 19 of the State Bank of India Officers (Determination and Terms and Conditions of Service) Order, 1979, hereinafter called the Service Regulations for brevity. At the relevant time the petitioner was in the grade of Middle Management Grade-II attached to Region II, Zonal Office, Hyderabad. The petitioner did not receive any reply. He stopped attending office from 10-7-1990 as he completed 3 months notice period also.
4. While so, the petitioner was issued with a charge Memo dated: 12-10-1990 alleging certain irregularities. Thereafter an enquiry was held and finally the petitioner was imposed with the punishment of deferment of increments for a period of three years with cumulative effect by orders dated: 2-1-1992. On appeal the punishment of deferment of increments was reduced to 2 years instead of 3 years. The said punishment is challenged by the petitioner in W.P.No. 24006/95.
5. The petitioner again addressed letter dated: 5-2-1992 seeking for his release from service under voluntary retirement scheme. On 12-3-1992 a reply was issued by State Bank of India stating that the requisite notice of 3 months was not given and therefore called upon the petitioner to deposit 3 months pay or the bank will deduct the same from terminal benefits. To another letter dated: 13-7-1992 of the petitioner the bank sent a reply on 23-7-1992 stating that the matter was receiving attention of the authorities. On 24-8-1992 the petitioner was directed to report for duty as he was absent from 10-7-1990 and that the request for voluntary retirement was rejected. To a further representation dated: 16-9-1993 of the petitioner, the Bank replied on 28-9-1993 stating that the matter of voluntary retirement was taken up with the Dy. General Manager and he should await for the communication.
6. As the matters stood thus, the Bank for the second time issued another charge memo dated: 25-11-95 alleging irregularities said to have been committed in 1983. He submitted the explanation recording his objections for initiating successive disciplinary proceedings. Thereupon he filed W.P.No. 27654/95 challenging initiation of disciplinary proceedings. This Court while admitting Writ Petition granted interim stay of further proceedings. The petitioner submits that it is a case of mala fide action on the part of the Bank. Instead of permitting the petitioner to go on voluntary retirement, the Bank had initiated disciplinary proceedings to harass him.
7. In the counter filed by the bank it is stated that the petitioner was unauthorisedly absent from 10-7-1990. The disciplinary proceedings were being contemplated against the petitioner in respect of certain irregularities committed by him while working at Chirag Ali Branch and hence the question of accepting voluntary retirement would not arise. While referring to Regulation 19, the bank states that the petitioner did not complete 30 years of pensionable service as on31-l-1990 as he joined the fund only on 15-6-1990 (sic. 15-5-1960) when a charge Memo was issued to the petitioner on 12-10-1990, and he fully participated until the final proceedings are conducted. Therefore, it is not open for the petitioner to presume that he is deemed to have been retired. It is also the case of the bank that he could not have submitted leave application for the period from 10-7-1987, when he sought retirement with effect from 31-1-1990. Thus, it is established that the petitioner continued in service by waiving his right of voluntary retirement. In any event it is the discretion of the Bank to accept or reject the request for voluntary retirement and the process is not automatic. The petitioner was imposed with the punishment in respect of irregularities committed by him while working at Chirag Ali Branch. The Bank also found on investigation that the petitioner had committed irregularities at Market Street Branch also for which memo was issued on 25-11-95 which is challenged by him. The petitioner has filed the Writ Petitions only with a view to avoid punishments. It is also submitted by the bank that the services of the petitioner were being extended by the bank on its own from 1989 onwards as certain disciplinary proceedings were pending. The Bank is entitled to extend the service upto 60 years when the disciplinary proceedings were pending.
8. The principal contention of the petitioner is that as per Regulation 19, he fulfils the criteria laid down for the voluntary retirement. The petitioner had completed 30 years of pensionable service and also 30 years of regular service. As on 31-1-1990 when the petitioner submitted his application for voluntary retirement, no disciplinary proceedings are pending. Therefore there was no impediment in accepting the request. For proper appreciation of the case it is necessary to extract Rule 19 of the Service Regulation:
"19. (1) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty years 'service or thirty years' pensionable service if he is a member of the pension Fund, whichever occurs first.
Provided that the competent authority may, atits discretion, extend the period of service of an officer who has attained the age of fifty-eight years or has completed thirty years 'service or thirty years' pensionable service as the case may be, should such extension be deemed desirable in the interest of the Bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension.
Provided further that an officer may, at the discretion of the Executive Committee, be retired from the Bank's service after he has attained 50 years of age or has completed 25 years' service or 25 years' pensionable service as the case may be, by giving him three months' notice in writing or pay in lieu thereof.
Provided further that an officer who has completed 25 years service or 25 years' pensionable service, as the case may be, may be permitted by the Executive Committee to retire from the Bank's service, subject to this giving three months' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived.
(2) Notwithstanding anything to the contary in this order, no officer who has ceased to be in the Bank's service by the operation, of, or by virtue of, any provision shall be deemed to have retired from the Bank's service for the purpose of the Imperial Bank of India Employees' Pension and Guarantee Fund Rules or the State Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said pension fund rules as may be applicable to him.
(3) In case disciplinary proceedings under the relevant rules of service have been initiated against an officer before the ceases to be in the Bank's service by the operation of, or by virtue of, any of the said rules or the provisions of this order. The disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purpose of the continuance and conclusion of such proceedings.
Explanation: An Officer will retire on the last day of the month in which he completes the stipulated service or age of retirement"
9. The petitioner submits that he entered the service on 7-2-1958 and he had completed 30 years of service on 7-2-1988. He was also member of pension fund from 7-8-1958 and on 6-8-1988 he completed 30 years of pensionable service. It is not in dispute that the petitioner had submitted his application on 30-1-1990 seeking voluntary retirement. Under proviso (1) the right is vested with the bank to retire the officer by giving three months notice provided the officer has attained 50 years or completed 25 years service /pensionable service. Similarly the officer is also permitted to retire from service if he has completed 25 years of service or 25 years of pensionable service; provided he gives 3 months notice or pay in lieu unless the requirement is wholly or partly waived. Under Sub-regulation (3) if the disciplinary proceedings are initiated against the officer before he ceases to be in bank service, the same shall be continued at the discretion of the Managing Director. However from proviso to Regulation 19, the authority may extend the same beyond 58 years or 30 years of service/ pensionable service provided the extension was deemed desirable, in the interest of the Bank.
10. The learned counsel for the petitioner contends that the petitioner had given notice of retirement on 31-1-1990. He also requested for waiver of three months notice. Since there was no communication upto 30-4-1990, it shall be deemed that the retirement of petitioner is accepted and he shall accordingly be deemed to be ceased to be in service. No further communication accepting the retirement is necessary as the regulation does not provide such a method. The bank had categorically accepted the receipt of request of retirement notice dated: 31-1-1990, but a contention is sought to be raised by the learned counsel for the bank that since the disciplinary proceedings were being contemplated the retirement of the petitioner was not accepted. Moreover, the petitioner having continued in service beyond 1-5-1990 upto 9-7-1990 and having participated in the disciplinary proceedings, it shall be deemed that the petitioner had waived his right to proceed on retirement by virtue of his conduct. Therefore, the petitioner cannot agitate for the retirement. It is also the case of the bank that the services of the petitioner were extended from 15-5-1989 to 14-5-1994 and from 15-5-1994 to 14-5-1996 in the interest of bank and therefore the question of acceptance of retirement does not arise.
11. Let us decide the issue of extension of service. It is for the first time in the counter the Bank has taken such a stand. It has been the contention of the bank that since the disciplinary proceedings were contemplated the retirement was not accepted. Even in the letters dated: 23-7-92 and 28-9-1993 issued to the petitioner in response to his request for his voluntary retirement, it was only stated that the matter has been referred to Dy. General Manager/Zonal Office and that he may await their advice. At no point of time was it the contention of bank that since the services of the petitioner were extended upto 1994/1996, the retirement was not acceptable. The service extension sheet prepared in 1989, was never brought to the notice of the officer. Nothing could have prevented the authorities from replying to his application dated: 31-1-1990 in the above terms. I am therefore unable to accept the theory of extension of service. Further the issue can be tested from another angle. Under proviso (2) the bank may retire the officer after 50 years of service or 25 years of service by giving the three months notice. No such notice was given. Therefore necessarily the officer shall continue in office till he reaches 58 years of age or 30 years of service/ pensionable service. The pensionable service limit is fixed at 30 years as he will get full pension under the Pension Rules. Regulation 19(1) dearly stipulates that the officer who is not a member of Pension Fund shall retire at 58 years or 30 years of service, while in case of member of Pension Fund, he shall retire at 58 years of age or 30 years of pensionable service whichever occurs first. The petitioner attains 58 years on 14-5-1997 while he had already completed 30 years of pensionable service. Therefore the effect of Regulation 19(1) is that the officer shall retire and cease to be in service beyond the time fixed except where the extension is granted in the interest of the bank. It is not the case of bank that extension was granted after the petitioner completed 30 years of pensionable service. There is yet another reason. Proviso (3) gives choice to the petitioner to retire voluntarily after he completes 25 years of service as mere is no question of voluntary retirement after 30 years of service. Thus by operation of law the officer ceases to be in service after 30 years of pensionable service. The petitioner submits that he had completed 30 years of pensionable service on 7-2-1988. On the other hand the bank states that the petitioner joined the pension fund on 15-5-1960 and he completed the requisite time as on 14-5-1990 and therefore the question of retiring before completion of 30 years does not arise. As already noticed by me as in the case of Bank where it can retire after 20 years but before 30 years of service, so is the case with the officer who can retire after completion of 25 years service but before the completion of 30 years of service. The reason being when once the officer completes 30 years of service he automatically ceases to be in service.
12. The learned Counsel submits that the petitioner continued in service beyond the notice period, which expired on 30-4-1990 and he continued to treat himself in service till he worked upto 9-7-1990 in a bonafide impression that the bank would pass appropriate orders. His understanding was fortified by the letters of the bank dated: 23-7-1992 and 28-9-1993 when it is stated that the matter was referred to the Zonal Office. He submits that period beyond 31-1-1990 or 1-5-1990 should be treated as on day to day basis and relies on the judgment of the Supreme Court reported in State of Assam and Ors. vs. Padma Ram Borah, AIR 1996 SC 473. He also submits that the petitioner is automatically deemed to have retired from service after expiry of 3 months notice period i.e. with effect from 1-5-1990. The regulation do not provide acceptance or rejection, and hence in the absence of contemplation of any specific order he shall be deemed to have retired with effect from 1-5-1990. He relies on the following decisions:
2. Dinesh Chandra Sangma v. State of Assam and Ors., 1978 (1) SLR 25.
3. B.J. Shelat v. State of Gujarat and Anr., 1978 (2) SLR 88.
4. Dr.Mrs. Santosh Gupta v. The State of Punjab and Ors., 1991 (2) SLR 145.
5. )yotirmoy Banerjee v. State of Orissa and Ors., 1991 (8) SLR 319.
6. Khushiratn v. Punjab State Electricity Board and Ors., 1994 (1) SLR 446.
7. Union of India and Ors. v. Sayed Muzajfar Mir, 1994 (5) SLR 567.
8. Devi Dayal Shastri v. State of Punjab and Ors., 1984 (1) SLR 728.
13. I need not burden this order with the above decisions. As on 31-1-1990 when the notice was given, the petitioner did not complete 30 years of pensionable service according to the bank. The petitioner need not give any notice of retirement after 30 years of pensionable service, and it is only after he completes 25 years and before he completes 30 years of pensionable service, he is required to give notice of three months. Therefore he is entitled to opt for voluntary retirement and in the ordinary course three months would have expired on 1-5-1990. Since the petitioner continued beyond 1-5-1990 till 9-7-1990, I am not inclined to decide whether the request of the petitioner is deemed to have been accepted as it pales into insignificance. Even accepting the contention of the bank that the petitioner continued beyond 1-5-1990 as he physically worked upto 9-7-1990 still the petitioner shall be deemed to have retired on 31-5-1990 as the petitioner completed 30 years of service on 15r5-1990 (taking the date of joining the pension fund given by the bank) and applying the note to Regulation 19. As per Regulation 19(1) the Officer shall retire on completion of 30 years pensionable service and thus he ceases to be in service by the operation of law. The Regulations were framed by the Central Board of State Bank of India in exercise of power conferred by Sub-section (1) of Section of State Bank of India Act, 1955. Therefore the said regulations have the force of law. Though this is not pleaded by the petitioner nor referred to by the Bank, but when once the statutory provision is identified, it is open for this Court to decide the service condition of the officer in accordance with the said regulation.
14. Thus, I hold that by virtue of Regulation 19(1) of Service Regulations of the Bank, the Petitioner shall be deemed to have retired from service with effect from 31-5-1990 and he ceased to be in service thereafter. Consequently, the pension, gratuity and other retiral benefits in accordance with the relevant rules or administrative instructions are required to be paid. The Respondents are directed to settle the above benefits within a period of two months. Since the retiral benefits which could have been invested by the petitioner were with held by the bank, the petitioner is also entitled for interest @ 18% per annum on the amounts from 1-6-1990 till the date of payment. The W.P. 23990/95 is ordered accordingly.
15. Now the other issues that fall for consideration is whether the bank can initiate disciplinary proceedings against the officer after his retirement from service. The learned counsel for the petitioner submits that there is no provision in the service Regulations providing for initiation of disciplinary proceedings after retirement, though it may be open for the Bank to continue the proceedings if they are pending as on the date of retirement in accordance with Regulation 19(3). The enquiry conducted and punishment imposed vide orders dated 2-1-1992 as modified by the appellate authority are wholly incompetent and without jurisdiction. The learned counsel for respondent bank also very fairly conceded that the regulation do not provide for initiation of disciplinary proceedings after retirement, though they can be continued if pending on the date of retirement. Admittedly the proceedings were commenced after 31-5-1990. Thus, I have to necessarily hold that the disciplinary proceedings commenced after 31-5-1990 are incompetent and without jurisdiction.
16. In view of foregoing the Writ Petition Nos. 24006/95 and 27654/95 are allowed. No costs.