C R SATYANARAYANAN Vs. INDIAN OVERSEAS BANK CHENNAI

JUDGEMENT

(1.) IN this writ petition, the petitioner is challenging the order dated 13-1-1998 passed by the Disciplinary Authority removing the petitioner from service and the order of the Appellate Authority dated 12-5-1998 rejecting the appeal and confirming the penalty imposed.

(2.) PETITIONER is an officer of the respondent-Bank who has retired from service on attaining the age of superannuation on 31-10-1995. On certain allegations of misconduct, just prior to the date of retirement, the petitioner was placed under suspension by order dated 7-10-1995. A charge-sheet dated 30-10-1995 alleging that the petitioner has committed certain acts of misconduct was served on him on 31-10-1995. The charges pertained to several acts of omission and commission on the part of the petitioner while working as Chief Manager of the Jayanagar 5th Block Branch, Bangalore. An additional charge-sheet dated 31-10-1995 came to be issued which was served on the petitioner on 3-11-1995. The additional charge-sheet also dealt with similar allegations pertaining to the act of omission and commission on the part of the petitioner while working in the Jayanagar 5th Block Branch as chief Manager. The respondent-Bank passed an order dated 4-11-1995 ordering that the petitioner will cease to be in the services of the respondent-Bank after his superannuation on 31-10-1995 without prejudice to the disciplinary proceedings initiated against him in respect of the charge-sheet dated 30-10-1995. Petitioner denied the charges. An enquiry was held under the provisions of the Indian Overseas Bank officer Employees' Discipline and Appeal Regulations, 1976. The enquiry Officer submitted a report holding that all the charges in the charge-sheet dated 30-10-1995 and the additional charge-sheet dated 31-10-1995 except charge No. 6 (c) of the charge-sheet dated 30-10-1995 and first part of Charge No. IV (i) of the additional charge-sheet dated 31-10-1995 stood proved. The Disciplinary Authority issued notice dated 4-1-1997 enclosing copy of the Enquiry Officer's report and calling upon the petitioner to offer his explanation regarding the findings of the enquiry Officer. The petitioner submitted a reply dated 29-1-1997. The disciplinary Authority passed an order dated 13-1-1998 accepting the findings of the Enquiry Officer and imposing penalty of removal from service in terms of Regulation 4 (g) of the Discipline and Appeal regulations. Petitioner filed an appeal before the Appellate Authority. By order dated 12-5-1998, the Appellate Authority dismissed the appeal file by the petitioner and confirmed the order of the Disciplinary authority. Aggrieved by the order passed by the Disciplinary Authority, as confirmed by the Appellate Authority, the petitioner has presented this writ petition.

(3.) LEARNED Counsel appearing for the petitioner Sri P. S. Rajagopal, has advanced the following contentions: (i) That the petitioner was not paid the provisional pension payable to him every month soon after his retirement and during the period when the enquiry was conducted. The petitioner was also not paid any other allowance and was therefore deprived of his means and source of livelihood resulting in deprivation of a reasonable opportunity to defend himself In this regard, the learned Counsel has placed reliance on various decisions of this Court and the Apex Court. He has placed reliance on Motor Industries Company Limited v Presiding Officer, additional Labour Court, Bangalore, to highlight that a starving workman cannot defend himself properly. He has also relied on the decision in the case of K. S. Vasudeva Tatachar v State Bank of Mysore, head Office, Bangalore and Another. Inviting the attention of the Court to paragraphs 7 and 8, learned Counsel has submitted that provisional pension is necessary to keep the body and soul together and non-payment of the same has resulted in the enquiry being vitiated. He has also placed reliance on the decision in Capt. M. Paul Anthony v bharat Gold Mines Limited and Another. Drawing the attention of the court to the observations made in paragraph 29, he contends that suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has an unpropitious effect on the life of an employee. It is further contended by the learned Counsel in this connection that the petitioner was constrained to approach this Court by filing W. P. 6131 of 1997, DD: 5-3-1997, seeking for a direction for payment of petitioner's own contribution to CPF and for payment of provisional pension. This Court directed notice to the respondent-Bank on 21-3-1997. Thereafter, the respondent-Bank submitted that arrears of provisional pension was credited to the account of the petitioner on 12-6-1997. But the Bank did not pay the petitioner's own contribution to provident Fund and finally this Court, passed an order dated 16-3-1998 allowing the writ petition insofar as the claim for provisional pension and the pensioner's own contribution to PF were concerned. In this background, the petitioner submits that the entire disciplinary proceedings have been vitiated as the petitioner was driven to starvation condition by denying the statutory payment that he was entitled to receive. (ii) The next contention of the petitioner is that the disciplinary proceedings are initiated under the Bank's Conduct, Discipline and appeal Regulations which have come into effect from 1-10-1976. The entire proceedings initiated under these regulations are without authority of law and are vitiated lacking in jurisdiction and competency is what is contended by the petitioner's learned Counsel. He draws the attention of this Court to Regulation 2 to contend that the regulations in question apply to 'officer employee' as denned in Regulation 2 (i ). Regulation 2 (i) states that an Officer employee means a person who holds supervisory, administrative or managerial post in the Bank or other person who has been appointed and is functioning as an Officer of the Bank and he thus contends that what is important to make these regulations applicable is that the Officer concerned must be holding the post or functioning as such. If the Officer is no longer in service or has retired from service, he does not fall within the purview of the definition of Officer employee is what is contended. Referring to Regulation 4 which provides for the nature of penalties to be imposed, the learned counsel states that even in Regulation 4, the penalties which may be imposed are referable to an officer employee for his acts of misconduct or for any other good and sufficient reasons. The penalty of removal which is specified as one of the major penalties in Regulation 4 (i) can only be imposed on an Officer employee as defined under the regulations is what is contended by the petitioner. As regards imposition of penalty, drawing the attention of the Court to Regulation 7, learned Counsel submits that action on the report of the enquiry submitted by the Enquiry Officer can be taken as per sub-clause (3) of Regulation 4. Thus, the learned counsel submits that the entire proceedings having been initiated under the Discipline and Conduct Regulations which can be made applicable only to officer employees, no penalty could be imposed against the retired employee under these regulations. Hence, he contends that the impugned orders are vitiated. In this regard, elaborating his contention as to how the term 'officer employee' has to be understood, learned counsel has placed reliance on the decision of Food Corporation of India v Bant Singh and Another. Reliance is also placed on an unreported judgment of this Court in B. Ramesh v Vijaya Bank. (iii) It is next contended by the learned Counsel that the other set of rules namely the Indian Overseas Bank (Officers') Services Regulations, 1979 (for short, 'officers Service Regulations') which also provides for termination of service of an employee are inapplicable to the instant case. He draws the attention of the Court to clause (3) of Regulation 20 which provides for continuation of a disciplinary proceedings even after the retirement of an officer. Learned Counsel submits that there is no provision in these regulations to impose any penalty. It is his submission that though sub-clause (3) (iii) of Regulation 20 provides that an Officer against whom disciplinary proceedings have been initiated ceased 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 without receiving any pay and allowance after the date of superannuation including the payment of retiral benefits till the proceedings are completed and final order is passed thereon excepting his own contributions to CPF that there is no provision made in these regulations to disallowing the benefits payable to the petitioner after his retirement by way of penalty. Hence, he submits that the continuation of the disciplinary enquiry and the penalty imposed against the petitioner cannot also be justified with reference to the regulations. (iv) It is next contended by the learned Counsel that the other set of regulations, namely, the Indian Overseas Bank (Employees') Pension regulation, 1995 which have come into effect 29-9-1995 cannot also be invoked by the Bank for the purpose of justifying its action. In this regard, the learned Counsel brings to the notice of this Court Regulation 41 in Chapter VIII and Regulations 42 to 50 in Chapter IX. Placing particular emphasis on Regulation 43, learned Counsel submits that withholding or withdrawing pensions and part thereof whether permanently or for a specified period is permissible only if the officer is found guilty of grave misconduct. Regulation 45 provides that before passing an order holding that the pensioner is guilty of 'grave misconduct', the Competent Authority has to follow the procedures specified in the Discipline and Appeal Regulations, 1976. So far as the expression 'grave misconduct' is concerned learned Counsel for the petitioner referring to sub-clause (b) of Regulation 46 contends that 'grave misconduct' includes communication or disclosure of any secret official code or password or any sketch, plan, model, article, note, as mentioned in Section 5 of the Official Secrets Act, 1923 which was obtained while holding office in the Bank so as to prejudicially affect the interest of the general public or the security of the State. Though the definition of the expression 'grave misconduct' is an inclusive definition, the learned Counsel submits that what amounts to grave misconduct has to be understood with reference to what has been referred to in sub-clause (b), of Regulation 46 and if so understood it can only be such acts of misconduct which are akin to the one's that are mentioned in the inclusive definition of sub-clause (b) of Regulation 46. If it is so understood, the Counsel submits the allegations made against the petitioner do not amount to 'grave misconduct' and therefore no proceedings under these regulations can be initiated for withdrawing or withholding the pensionary benefits. Relying on Regulation 46 of the pension Regulations, the learned Counsel submits that even if disciplinary proceedings are instituted, provisional pension equal to the maximum pension which would have been admissible to him should have been allowed subject to adjustment against final retirement benefits upon conclusion of the proceedings as provided under regulation 46 (1 ). By placing reliance on Regulation 48, learned Counsel contends that for the purpose of imposing penalty of withholding or withdrawing the pension or part thereof upon the pensioner being found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of service, the authority shall have to consult the Board before any final order is passed. In the instant case, the Board having not been consulted before the final orders are passed, the impugned order is vitiated, being in contravention of first proviso of Regulation 46 is what is strongly contended by the learned Counsel for the petitioner. Yet another aspect canvassed is that even if the Pension Regulations are made applicable the only penalty that could be imposed is under Regulation 48, of withholding the pension or withdrawal of the same that too in consultation with the Board. No penalty of removal could be imposed as per these regulations. Hence, the impugned order imposing the punishment of removal is unsustainable is what is contended. He farther contends that there is no finding by the Disciplinary Authority to hold the petitioner guilty of 'grave misconduct'. He states that the penalty that can be imposed against retired employees cannot be dismissal or removal from service. Substantiating his contention as to what penalties can be imposed against the retired employees, learned counsel for the petitioner relies on upon the following judgments: (1) State of Uttar Pradesh v Brahm Datt Sharma and Another; (2) State of Maharashtra v M. H. Mazumdar, (3) High Court of Punjab and Haryana v Amrik Singh; (4) Bhagirathi Jena v Board of Directors, O. S. F. C. and Others; (5) B D. Luthra v Chairman and Managing Director, PNB5. Taking support from all these judgments, the learned Counsel submits that once the employee retires from service, there is no serving relationship between the employer and the employee and the relationship that survives is only with regard to the payment of pension and other retirement benefits and therefore the question of imposing penalty of removal from service was wholly impermissible. (v) Learned Counsel for the petitioner lastly contends that the disciplinary Authority has not acted independently while imposing penalty. It has acted on the dictates of the Central Vigilance commission (for short, 'cvc' ). The major penalty of the removal from service is imposed only at the instance of CVC is what the learned counsel contends. The CVC directives were not made available to the petitioner. Therefore, the procedure followed and the power exercised in this regard is vitiated is what is contended. In this regard, the learned counsel relies on the decision of this Court in W. P. No. 22155 of 1998, dd: 14-12-2004. Court's attention is drawn to paragraphs 10, 11 and 12 of the said judgment.