B N BHARDWAJ Vs. B K MARUTHI

JUDGEMENT

(1.) Heard learned counsel for the parties. The petitioner challenges by way of this petition show cause notice dated 15.7.1998 issued by respondent No.1 following his conviction by judicial court under section 5(1)(d) of Prevention of Corruption Act, 1947 on 30.12.1996. The main plank of the petitioner in his petition as is apparent from the pleadings in the petition as well as the contention of the petitioner noticed at the time of issuing notice in order dated 29.7.1998 is that for the same charges for which petitioner has been convicted, a departmental enquiry was held and major penalty has already been inflicted of reduction in time scale of pay by order dated 18.9.1991. With this premise it was contended that once the petitioner was retired, order of dismissal subsequent thereto on the basis of order of conviction on the very same charges cannot be passed inasmuch as no order of dismissal can be made with retrospective effect and that too for the same charges for which the petitioner already has suffered departmental enquiry. New punishment by the department on conviction on the same charges cannot be once again inflicted on the petitioner. The very same contentions have been urged at the time of hearing on behalf of the petitioner. Learned counsel for the petitioner also drew the attention of the Court to Regulation 20 of the Bank of Baroda Officers Services Regulations 1979 (hereinafter called `Service Regulations') for urging that Regulation 20(3)(iii) does not aruthosrise the respondents to initiate any disciplinary proceedings after retirement on the basis of post retirement conviction on a criminal charge.

(2.) It was pointed out by learned counsel for the respondents, replying to contentions raised by learned counsel for the petitioner, that the very foundation of the petitioner's case that the charges under trial before the court under the provisions of Prevention of Corruption Act and the charges enquired into the departmental enquiry are same is not correct. Though neither the charge sheet served on the petitioner in connection with which he was awarded punishment of reduction in time scale of pay nor the charge sheet presented to the court for the purpose of criminal trial by the prosecuting agency has been produced by the petitioner and he has rest contented with his deposition on oath, both documents have been filed along with reply affidavit, copy of which was served on the learned counsel for the petitioner on 9.8.1998 for the purpose of showing that the charges under the criminal trial were distinct from the charges that formed the subject matter of departmental enquiry. Learned counsel for the respondent relied not only on the provisions of Regulation 20 of Service Regulations for the purpose of initiation of post retirement proceeding against an incumbent on the basis of conviction but also on Regulation 43 of the Bank of Baroda Employees Pension Regulations, 1995 (hereinafter called `Pension Regulations') which inter alia provided that the competent authority may by order in writing withhold or withdraw a pension or a part thereof, whether permanently or for a specific period if the petitioner is convicted of a serious crime or criminal breach of trust or forgery or acting fraudulently or is found guilty of gross misconduct, provided that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the minimum pension per mensum payable under these regulations.

(3.) It was urged by Mr. Parikh that it is implicit in the Pension in the Regulation that action for withholding or withdrawing a pension can only be made after the retirement of a person on the basis of conviction that may have come later to retirement and withdrawing of a pension as a whole which is ordinarily a concomitant of dismissal or removal from service of the incumbent the show cause notice in question is directly relatable to said Regulation 43 of Pension Regulations. If the court comes to that conclusion that Regulation 20 of Service Regulations does not apply, it should not result in its invalidation merely because of reference to wrong source of power, when in fact power to initiate such proceedings exist otherwise under the Regulations governing pension as conditions of service between the bank and its employees.