Punjab National Bank Vs. M.L. Kalra and Another
[2008] Insc 112 (30
January 2008)
S.B.
Sinha & Harjit Singh Bedi S.B. Sinha, J.
1. The
short question involved in this appeal, is the interpretation of the provisions
of the Punjab National Bank (Officers) Service Regulations, 1979 vis-`-vis
Punjab National Bank (Employees) Pension Regulations, 1995 (in short
Pension Regulations), which arises out of a judgment and order of the
High Court of Delhi at New Delhi passed in LPA No. 336 of 2002.
2.
Respondent herein was an employee of the New Bank of India. On or about 4th September, 1993 the said Bank was amalgamated with
the appellant bank. A charge sheet was issued against the respondent on 19th August, 1993. He reached the age of
superannuation on 30th
November, 1994.
Appellant, however, relying on or on the basis of Regulation 20 (3) (iii) of
the National Bank (Officers) Service Regulations, 1979, continued the
departmental proceedings against him.
The
same was completed after his retirement on 1st August, 1995. An order of punishment was passed
by the disciplinary authority dismissing the respondent from service on 22nd
Mach, 1996, directing :- Provisions of Regulation 20(3)(iii) of Punjab
National Bank Officers Service Regulations, 1979 were invoked vide letter dated
23.11.1994 and it was inter alia made clear to Shri Kalra that though he will
cease to be in service of the bank on 30.11.1994 (on attaining the age of
superannuation) but the disciplinary proceedings initiated against him will
continue as if he was in service until the disciplinary proceedings are
completed and final orders is passed in respect thereof and that he will not be
entitled for payment of retirement benefits till the proceedings are concluded
and final order is passed thereon except his own contribution to CPF. The
payment of terminal benefits to Shri Kalra, if any, will be made keeping in
view the above order of dismissal.
3. An
appeal preferred thereagainst by the respondent before the appellate authority
was dismissed by an order dated 6th March, 1997 stating:- The Board
carefully considered the grounds of appeal preferred by Shri M.L. Kalra along
with records of the case and after detailed discussions observed that the
petitioner has not brought out any case based on the merits, which warrants
interference with the decisions of the Disciplinary Authority. As such, the
Board decided to confirm the punishment of Major penalty of Dismissal
from service which shall be a disqualification for future employment imposed
on Shri M.L. Kalra by the Disciplinary Authority. Shri M.L. Kalra be informed
accordingly.
4. In
the meanwhile, the respondent was paid his provisional pension in terms of
Regulation 46 of Pension Regulations from the date of superannuation till the
date of dismissal i.e. 22nd
March, 1996.
5.
Respondent claimed that he was entitled to payment of the said provisional
pension till 6th March,
1997 i.e. till the
disposal of his appeal by the appellate authority. On the said premise a writ
petition was filed by him. A learned Single Judge of the High Court by an order
dated 22nd February,
2002 directed that the
arrears of provisional pension also be paid for the period during which the
appeal was pending. An intra-court appeal filed by the appellant had been
dismissed by a Division Bench of the High Court by reason of the impugned
judgment.
The
High Court in support of its order relied on a decision of this Court in State
of Maharashtra vs. Chandrabhan Tale : (1983) 3 SCC
387.
6. Mr.
Amarendra Sharan, learned Additional Solicitor General, in support of the
appeal submitted that the order of disciplinary proceeding culminated in an
order passed by the disciplinary authority and in that view of the matter, the
said order cannot be taken into consideration for the purpose of payment of
provisional pension.
7. Mr.
Ambhoj Kumar Sinha, learned counsel appearing on behalf of the respondent, on
the other hand, submitted that a retired person cannot be directed to be
dismissed and a distinction exists between a disciplinary proceeding and a
departmental proceeding. As the Regulation 46, it was urged, refers to
departmental proceedings, the appellant was entitled to payment of provisional
pension till the date of determination of the appeal.
Regulations
42, 45 and 46 of the Pension Regulations if read conjointly, the learned
counsel contended, would clearly show that the delinquent employee was entitled
to payment of provisional pension subject of course to an order which may be
passed by the disciplinary authority only for withholding or revision thereof.
8.
Clause (b) of sub-regulation (2) of Regulation 22 of the Pension Regulations
postulates that the delinquent employee would be entitled to receive pension if
he is permitted to retire or retires on attaining the age of compulsory
retirement while under suspension.
Terms
and conditions of the services of an officer of the appellant- Bank are
governed by the Punjab National Bank (Officers) Service Regulations, 1979
; Regulation 20(3) (iii) whereof reads as under:- 20. Termination of
Service (3) (iii) The officer against whom disciplinary proceedings have been
initiated will cease 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. The
concerned officer will not receive any pay and/or allowance after the date of
superannuation. He will also not be entitled for the payment of retirement
benefits till the proceedings are completed and final order is passed thereon
except his own contribution to CPF. 9, In this case we are not concerned
with the legality or validity of the order of dismissal passed against the
respondent. The issue before us is a short one.
10. On
reading the two Regulations conjointly, the question which arises for
consideration is as to whether a departmental proceeding can be said to be a
disciplinary proceeding. We do not find any distinction in the said term in the
context of the present dispute.
11.
Regulation 22 of Pension Regulations reads as under :- 22. Forfeiture of
service:-
(1)
Resignation or dismissal or removal or termination of an employee from the
service of the bank shall entail forfeiture of his entire past service and
consequently shall not qualify for pensionary benefits;
(2) An
interruption in the service of a Bank employee entails forfeiture of his past
service, except in the following cases, namely:-
(a) authorized
leave of absence;
(b)
suspension, where it is immediately followed by reinstatement, whether in the
same or a different post, or where the bank employee dies or is permitted to
retire or is retired on attaining the age of compulsory retirement while under
suspension;
(c) transfer
to non-qualifying service in an establishment under the control of the
Government or Bank if such transfer has been ordered by a competent authority
in the public interest;
(d) joining
time while on transfer from one post to another.
(3)
Notwithstanding anything contained in sub- regulation (2), the appointing
authority may, by order, commute retrospectively the periods of absence without
leave as extraordinary leave.
(4)(a)
In the absence of a specific indication to the contrary in the service record,
an interruption between two spells of service rendered by a bank employee shall
be treated as automatically condoned and the pre-interruption service treated
as qualifying service;
(b)
Nothing in clause (a) shall apply to interruption caused by resignation,
dismissal or removal from service or for participation in a strike:
Provided
that before making an entry in the service record of the Bank employee
regarding forfeiture of past service because of his participation in strike, an
opportunity of representation may be given to such bank employee.
12.
When an order of dismissal or removal is passed, clause (1) of Regulation 22
would apply. Clause (2) will have application only when an interruption in
service takes place.
13.
Services of an employee can be validly terminated only once.
Only
because an appeal has been provided against an order of dismissal from
services, the same ipso facto would not mean that the same would remain under
animated suspension.
14.
The issue is covered by large number of decisions of this Court. In Syndicate
Bank Ltd. vs. K.R.V. Bhat : [1968] 1 SCR 327 this Court held that an order of
dismissal or discharge can be passed only once irrespective of when the
finality in relation thereto is reached and all that the appellate authority
considers is whether the order of dismissal requires to be sustained or
modified.
In
P.H. Kalyani vs. M/s. Air France Calcutta : [1964] 2 SCR 104 this Court
observed that the operation of order of punishment made by the employer does
not depend on its confirmation by the Court.
16. We
may also notice that in a recent judgment this Court, in Ramesh Chandra Sharma
vs. Punjab National Bank and another: 2007 (8) SCALE 240, upon taking into
consideration both the provisions of the Service Regulations as also the
Pension Regulations, opined :-
17.
Where a proceeding is initiated for withholding or withdrawal of pension,
Regulation 43 of the Pension Regulations would be attracted. But provisions of
the said Regulation if read in its entirety clearly go to show that an officer
would not qualify for pensionary benefits, if inter alia, he is dismissed from
service.
Regulation
48 empowers the Bank to recover pecuniary loss caused to it from the pensionary
benefits. Regulation 20(3)(iii) of the Discipline and Appeal Regulations must
be read in conjunction with the Pension Regulations. Where the employees are
pension optees, Regulation 48(1) shall apply. In any event, if an officer is
removed or dismissed from service under Regulation 4 of the (Discipline &
Appeal) Regulations, the Bank need not take recourse to Regulation 48 of the
Pension Regulations as Regulation 22 thereof would be attracted.
We
are, therefore, of the opinion that the High Court committed a manifest error
in passing the impugned judgment.
17.
The decision of this Court in Chandrabhan Tale (supra) was rendered in an
absolute different fact situation. Therein the question which arose for
consideration was as to whether subsistence allowance is payable even during
the pendency of the appeal. In the facts and circumstances of that case, it was
held that the subsistence allowance should be granted. We do not think that any
ratio was laid down therein.
Upon
dismissal from services, the employee ceases to be in employment with effect
from the date when the original order had been passed and not from the date of
the order of the appellate authority subject, of course, to the condition that
the original order is affirmed.
18.
Reliance has been placed by the learned counsel for the respondent on Union of
India and others vs. J. Ahmed : (1979) 2 SCC 286. We do not find any
application of the said decision in the instant case which is merely an
authority for the proposition as to what would constitute a misconduct.
19.
For the reasons abovementioned the impugned judgment cannot be sustained and it
is set aside accordingly. The Appeal is allowed. But in the facts and
circumstances of the case, there will be no order as to costs.
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