H. No.86 B M Block, Sector 23 Sanjay Nagar Ghaziabad P.O. & P.S. – v. 1. The Bank of India through Zonal Manager, Band of India Building, Main Road
Case Details
- 1 - IN THE HIGH COURT OF JHARKHAND AT RANCHI L.P.A. No.182 of 2018 ---- Akhtari Begum, aged about 60 years, wife of Late Md. Akhtar Hussain R/o Village: H. No.86 B M Block, Sector 23 Sanjay Nagar Ghaziabad P.O. & P.S. – Ghaziabad, District – Ghaziabad (Uttar Pradesh) … … Appellant Versus 1. The Bank of India through Zonal Manager, Band of India Building, Main Road, Bistupur, P.O. & P.S. – Bistupur, Jamshedpur, District – East Singhbhum at Jamshedpur. 2. The Zonal Manager, Bank of India, Hazaribagh Zone & Disciplinary Authority, Hazaribagh Zonal Officer, P.B. No.34, Vidya Niwas, Zulu Park, Hazaribagh, P.O. & P.S. and District – Hazaribagh. 3. The Regional Manager, Bank of India, Regional Officer, P.B. No.8, Vidya Niwas, Raja Ram Mohan Road, Zulu Park, Hazaribagh, P.O. & P.S. and District – Hazaribagh. … … Respondents ------- CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SUBHASH CHAND For the Appellant For the Respondents: Mr. A. Allam, Senior Advocate : Mr. Saurav Arun, Advocate ------ Mr. A.K.Sahay, Advocate Ms. Asfia Sultana, Advocate -------- ORAL JUDGMENT Order No.10 : Dated 1st May, 2023 Per Sujit Narayan Prasad, J. I.A. No. 3828 of 2023 This interlocutory application has been filed for substituting the name of the appellant through his legal heirs, since, he has died during pendency of the writ petition, as per the detail furnished in paragraph no. 6 of the instant application. 2. There is no objection on part of the respondents. 3. Considering the reason assigned in the instant - 2 - interlocutory application, the same is, hereby, allowed. 4. The office is directed to make necessary correction in the cause title of the instant appeal as furnished in paragraph no. 6 of the instant interlocutory application. 5. Accordingly, I.A. No.3828 of 2023 is allowed. 6. Mr. Saurabh Arun, the learned counsel appearing for the appellant has submitted that the substituted appellant has sought for leave of this Court to implead the name in the body of appeal in course of the day. 7. Let him do so. L.P.A. No.182 of 2018 8. The instant intra-court appeal, preferred under Clause 10 of the Letters Patent, is directed against the order/judgment dated 08.03.2018 passed by learned Single Judge of this Court in W.P.(S) No.5890 of 2008 whereby and whereunder the learned Single Judge has refused to interfere with the impugned orders dated 18.07.2007 and 02.06.2008 as also has denied the prayer for salary and other allowances after dismissal. 9. Brief facts of the case as per the pleadings made in the writ proceeding, which are required to be enumerated herein, read as under :- The petitioner was initially appointed as Cashier-cum- Accounts Clerk in Bank of India on 13.12.1976. - 3 - The petitioner was suspended from service on 20.06.1994 for the charges of misconduct during the course of duty as Special Assistant at Ramgarh Cantt. Branch of the Bank. After the petitioner was suspended for misconduct, Memorandum of charges was issued to the petitioner on 17.11.1994 and altogether three charges were levelled against the petitioner. Pursuant to issuance of Memorandum of charges, the petitioner filed detail reply to the charges and denied the charges as leveled against him. The inquiry was held against the petitioner and inquiry report was submitted on 15.9.1995 against the petitioner where the enquiry officer has found some charges to be proved. After the enquiry report was submitted, the petitioner replied accordingly and thereafter, order of penalty was passed vide order dated 17.11.1995 by the disciplinary authority, imposing punishment of dismissal from service. Against the order of dismissal from service, the petitioner preferred an appeal and the appellate authority vide order dated 30.07.96 rejected the appeal so preferred by the petitioner against the order of dismissal. Against the appellate order dated 30.07.96, the petitioner invoked the jurisdiction of Industrial Tribunal - 4 - before the Central Industrial Tribunal (No. II) at Dhanbad and the learned Tribunal vide order dated 17.5.2004 held that dismissal of petitioner by the respondent-Bank authority is justified. Thereafter, against the order of dismissal, order of appellate authority as well as order passed by learned Tribunal, the appellant preferred writ application being W.P(S) No. 5927 of 2004 and the learned Single Judge vide order dated 08.05.2007 has held that punishment awarded to the petitioner does not commensurate with the charges leveled against him and remitted the matter back to respondents to consider the quantum of punishment afresh and pass appropriate orders in accordance with law. After the order passed by the learned Single Judge in the writ petition, the matter was remitted back to the respondents. The respondent Bank, after considering the matter, has passed the impugned order of compulsory retirement dated 18.07.2007 with superannuation benefits. Again the writ petitioner preferred appeal against the said order of punishment dated 18.07.2007 but the same was dismissed vide order dated 02.06.2008. Thereafter, the appellant again approached this Court challenging the order of punishment dated 18.07.2007 and appellate order dated 02.06.2008 by filing writ petition being W.P.(S) No.5890 of 2008 which has been dismissed by - 5 - refusing to interfere with the impugned orders, hence, the instant intra-court appeal has been filed. 10. It appears from the factual aspect referred herein that
Decision
the writ petitioner was appointed under the respondent Bank on 13.12.1976 on the post of Cashier-cum- Accounts Clerk and while posted as such, was put under suspension on 20.06.1994. The charge memo dated 17.11.1994 has been served leveling the following allegations:- ―I. During your tenure at Bank's Hunterganj Branch you permitted withdrawals to a third party in S/B A/C No. 3611 of Md. Shariff in contravention of the banking norms and unauthorizedly allowed transfer entries from the above account of the account holder. (a) on 25.06.97 you permitted a withdrawal of Rs. 10,000/ from S/B A/C No. 3611 of Md. Shariff to a third party by means of a withdrawal slip, without accompanied by the pass book, violating the rules of the bank, (b) on 16.10.1987 you permitted a withdrawal of Rs. 12,000/ from the same S/B A/C No. 3611 of Md. Shariff to a third party by means of a withdrawal slip without any supporting pass book, violating the rules of the bank, (c) On 08.08.1987 you prepared a set of transfer voucher of Rs. 3,000/ from S/B A/C No. 3611 of Md. Shariff to S/B A/C No. 197 of Md. Tahir Hussain, son of the account holder. The above transfer transactions were allowed by you on the strength of a letter of authority purportedly signed by the account holder Md. Shariff. Subsequently, it was reported that the same authority letter was neither signed by the account holder not were you - 6 - authorised for that transfer entry transaction. The account holder had subsequently denied having signed the said authority letter and sign there on the said authority letter bear certain variations when compared with specimen signature of the account holder. Thus you unauthorisedly allowed transfer entries from the above account no. 3611 of the account holder. II. During your tenure at Bank’s Ramgarh Cantt Branch on 16.02.94 you deposited a cheque bearing No. 046539 dated 16.02.94 of United Bank of India, Ramgarh Cantt. Branch for Rs. 16,616.70 in the S/B Joint Account of your wife and children (S/B A/C No. 7798). The cheque was sent for collection through clearing house, However, on the same day i.e. on 16.02.94 you posted a withdrawal slip for Rs. 15,000/ in the same account and allowed withdrawal from the same Joint Account without the permission of the Manager. As per normal rules and practice, Bank does not allow any withdrawal against clearing cheque on the same day without the specific permission of the Manager. Thus you exceeded you authority and extended undue accommodation to your wife in the matter of effecting withdrawal from her account against the clearing cheque on same day it is deposited and sent for collection, and violated the norms and practices of Bank III. During your tenure at Bank’s Ramgarh Cantt. Branch, you have entered into fraudulent transactions and have withdrawn money unauthorisedly from the customer’s account on different occasions, dishonestly, in the following manner : (i) S/B A/C No. 6696 of Md. Ataul Haque : You issued a cheque book containing leaves bearing nos. from 93781 to 93790 in the captioned account of Md. Ataul Haque without obtaining the - 7 - requisition slip from the account holder Shri Haque. Thereafter, you used the first leaf of the cheque book i.e. cheque no. 93781 and handed over the same to one of your relatives Mustaq Ahmad who in turn collected the above fraudulent amount of Rs. 15,000/ through his S/B A/C No. 5829 with Central Bank of India on 06.04.1994. The above cheque was cancelled by you, when it came for collection from Central Bank of India. The signature of the drawer on the said cheque considerably differs when compared with Ataul Haque’s specimen signature appearing on Bank’s records. Thus you involved yourself in fraudulent transaction and defrauded bank’s account holder Shri Ataul Haque. (ii) S/B A/C No. 7463 of Md. Tahseem (Minor) S/o Md. Ataul Haque : You issued a cheque book containing leaves bearing nos. from 948851 to 948875 in the captioned account of Md. Tahseem without obtaining the requisition slip from the account holder. You handed over a cheque no. 948851 for Rs. 10,000/ fraudulently drawn on the above account to your relative Mustaq Ahmad who in turn collected the cheque through his S/B A/C No. 5829 with Central Bank of India, Ramgarh Cantt. Branch and the date of withdrawal was 24.08.1992. Similarly you have used two other cheque leaves from the above cheque book fraudulently issued, and you have withdrawn Rs. 10,000/ through cheque no. 948855 dated 11.01.93 and 650/ through cheque no. 948856 dated 10.03.93 and directly obtained the proceeds of the cheques in two occasions by signing on the reverse of the cheque leaves. The account holder had neither applied for the cheque book nor had issued the above stated three cheques as referred above, on any occasion. Thus you have entered into fraudulent transactions in connivance with outsiders i.e. your relatives and withdrawn money from the Bank’s - 8 - customer’s account dishonestly in utter disregard to the norms of the Bank.‖ The enquiry officer, after conclusion of enquiry, has submitted the enquiry report finding the charges I(a), I(b) and II not proved whereas charge nos. I(c), III(i) and III(ii) were found proved. The disciplinary authority passed the order of dismissal from service on 17.11.1995. The writ petitioner had preferred an appeal against the order of dismissal but was rejected vide order dated 30.07.1996. The writ petitioner, being aggrieved with the order of dismissal, has raised a dispute basis upon which the matter was referred by way of a reference being Reference Case No. 100 of 1997. The Award was passed answering the reference as on 17.05.2004. The Tribunal has found the action of the respondent Bank in dismissing the petitioner from service justified. The aforesaid order passed by the Tribunal has been challenged by filing the writ petition being W.P.(S) No.5927 of 2004. The aforesaid writ petition was disposed of vide order dated 08.05.2007 by setting aside the punishment of dismissal of the petitioner from service and the matter was remitted back to the Regional Manager, Bank of India, Hazaribagh Area to consider the quantum of punishment afresh and pass appropriate orders in accordance with law within a period of eight weeks from the date of receipt/production of a copy of the judgment and after giving - 9 - chance of hearing to the petitioner. The disciplinary authority, on remand, has inflicted the punishment of compulsory retirement with superannuation benefit vide order dated 18.07.2007. The order of punishment reads hereunder as :- ―Punishment of 'Compulsory Retirement with superannuation benefits i.e. Pension and/or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment’, is hereby imposed on Mr. Md. Akhtar Hussain, ExSpecial Assistant of Ramgarh Cantt. Branch, in terms of clause 6(c) of the Bipartite Settlement dated 10.04.2002, for the acts of gross misconduct proved against him in the departmental enquiry pursuant to the chargesheet bearing Ref. No. RO: IR: 9495/181 dated 17.11.1994.‖ The writ petitioner had filed an appeal against the order of punishment dated 18.07.2007 but the same was dismissed vide order dated 02.06.2008. The appellant, by taking the ground that the judgment of compulsory retirement with superannuation benefit is not a punishment provided under the Settlement of 1966 under Clause 19.6 which enumerates the punishments which can be imposed upon an employee who has been found guilty of gross misconduct. The appellant, in consequence thereof, has made prayer for his reinstatement along with consequential benefits but - 10 - having not accepted by the respondent authority, the writ petition being W.P.(S) No.5890 of 2008 has been filed seeking therein the following directions :- (i) For quashing of impugned order dated 18.07.2007 and 02.06.2008. (ii) The salary for the period of dismissal. (iii) The superannuation benefit in terms of the order passed by the writ Court dated 08.05.2007. However, while dismissing the writ petition the learned Single Judge has passed order on the question of payment of superannuation benefits by directing the respondents to pay the same with interest within a period of two weeks, if already not paid, failing which, proceeding under Contempt of Courts Act, 1971 shall be initiated against the Zonal Manager, Bank of India, Hazaribagh. 11. Learned counsel appearing for the appellant has submitted that the order passed by the learned Single Judge to the effect whereby and whereunder the impugned order dated 18.07.2007 and 02.06.2008 have been declined to be interfered with as also denial of the salary and allowances has been questioned by way of instant intra-court appeal. Learned counsel for the appellant has taken the ground that the order of punishment of compulsory retirement dated 18.07.2007 is not sustainable in the eyes of law, reason being that, under the Bipartite Settlement, 1966, there is no - 11 - punishment of compulsory retirement and, as such, the order of punishment of compulsory retirement is fit to be quashed and in consequence thereof, the writ petitioner is entitled for the salary and other allowances for the aforesaid period. 12. Mr. A. Allam, learned Senior counsel appearing for the respondent Bank has submitted that it is incorrect on the part of the appellant to take the ground that the punishment of compulsory retirement cannot be imposed, rather, the said punishment has been imposed in terms of the order dated 08.05.2007 passed by the Co-ordinate learned Single Judge of this Court in W.P.(S) No.5927 of 2004. The ground which is being taken that under the 2002 Bipartite Settlement, the punishment of compulsory retirement has come and was not available in the Bipartite Settlement of 1966 and hence, the contention of the appellant that order of punishment of compulsory retirement is unjustified cannot be said to be justifiable argument, reason being that the order of punishment has been passed on the basis of the direction passed by this Court on quantum of punishment, since on earlier occasion, the writ petitioner was dismissed from service vide order dated 17.11.1995, but this Court while disposing of the writ petition being W.P.(S) No.5927 of 2004, has set aside the order of punishment by remitting the matter back to the - 12 - Regional Manager of the respondent Bank to consider the quantum of punishment afresh and pass appropriate orders. The contention has been raised that the Bipartite Settlement of 2002 is by way of substitution and in supersession to the earlier Bipartite Settlement which suggests that the order is required to be passed on remand by this Court on the basis of the Bipartite Settlement which is available on the day when the order has been passed. Herein, the day when the order of compulsory retirement was passed, the provision of compulsory retirement is there in the Bipartite Settlement of the year 2002 and hence, the same cannot be considered to be an illegal order. It has been contended that the learned Single Judge has considered the aforesaid fact and has come to the conclusive finding that the quantum of punishment is within the exclusive domain of the disciplinary authority and courts should interfere with the quantum of punishment only in cases where major punishment like dismissal from service or compulsory retirement has been inflicted on trivial charges. It has further been observed in this regard that the punishment of compulsory retirement from service is not mentioned in the 1966 Bipartite Settlement but it provides punishment of dismissal without notice as one of the punishment which admittedly is a grave punishment than - 13 - the punishment of compulsory retirement with superannuation benefits and in that view of the matter when the compulsory retirement has been considered to be lesser in gravity to that of the punishment of dismissal, hence it cannot be said that the authority has acted improperly. Learned counsel for the Respondent Bank has further submitted that the question of salary which has been denied by the learned Single Judge also cannot be said to suffer from an error reason being that when the judgment of punishment has been passed on quantum, meaning thereby, the misconduct as has been found by the enquiry officer is intact and in that view of the matter, it is not available for the writ petitioner to claim the salary for the period of dismissal. The contention has been made that so far as the superannuation benefit is concerned, the same has been directed to be paid within the period of two weeks failing which a proceeding under the Contempt of Courts Act shall be initiated against Zonal Manager, Bank of India, Hazaribagh and if the writ petitioner is having any grievance, it is available for him to file a contempt case. 13. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order. - 14 - 14. The issue which has been raised on behalf of the appellant that the order of compulsory retirement vide order of punishment dated 18.07.2007 passed by the disciplinary authority and the appellate order dated 02.06.2008 cannot be said to be justified since the same has been passed on the day when the Bipartite Settlement of 2002 was in existence in which there is punishment of compulsory retirement but the departmental proceeding since was initiated the day when the Bipartite Settlement of 1966 was in existence wherein there is no provision of compulsory retirement and, as such, imposing punishment of compulsory retirement is considered to be without jurisdiction. 15. This Court is now proceeding to examine the aforesaid fact but before that the factual aspect which is not in dispute is required to be referred herein. Admittedly, as would appear from the material available on record that the writ petitioner is an employee of the respondent Bank and is to be dealt with for the purpose of inflicting punishment on the basis of the Bipartite Settlement of the year 1966 which has been amended from time to time. The aforesaid Bipartite Settlement has been substituted and superseded by new Bipartite Settlement of the year 2002, for ready reference Clause I thereof is required to be referred herein which reads hereunder as :- “TERMS OF SETTLEMENT I. The provisions of the said Awards, the First - 15 - Bipartite Settlement dated 19.10.1966 and/or other subsequent Settlements dated 11.11.1966, 14.12.1966, 23.12.1966, 31.10.1979, 28.11.1981, 8.9.1983, 17.9.1984 and 14.2.1995 hereinafter collectively referred to as the said Settlements shall stand superseded and substituted by and in the manner detailed hereunder.‖ It is evident from the stipulation made, as quoted and referred hereinabove, that the settlement of the year 2002 has been substituted and superseded in supersession of the earlier Bipartite Settlement. The Settlement of the year 2002 contains a Clause as under ―Date of effect‖ wherein it has been stipulated that this Bipartite Settlement will be applicable from the date of settlement, for ready reference, the same is being referred hereunder as :- ―Date of effect 1. The provisions under this Memorandum of Settlement shall come into effect from the date of the Settlement and shall continue to govern and bind the parties until the Settlement is terminated by either party giving to the other a statutory notice as prescribed in law for the time being in force.‖ The Bipartite Settlement of the year 1966 contained the punishment under the major head, the punishment of discharge and removal. For ready reference, the Clause 19.6 of the Settlement of 1966 is quoted and referred hereunder as:- ―19.6 An employee found guilty of gross misconduct may (a) be dismissed without notice; or - 16 - (b) be warned or censured or have an adverse remark entered against him; or (c) (d) (e) be fined; or have his increment stopped; or have his misconduct condoned and be merely discharged.‖ However, in the Bipartite Settlement of the year 2002 following punishments have been prescribed for gross misconduct :- ―6. An employee found guilty of gross misconduct may : (a) (b) be dismissed without notice; or be removed from service with superannuation benefits i.e. Pension and / or Provident Fund and Gratuity, as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (c) be compulsorily retired with superannuation benefits i.e. Pension and / or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (d) be discharged with superannuation benefits i.e. Pension and / or Provident Fund and Gratuity as would be due otherwise under the Rules or Regulations prevailing at the relevant time and without disqualification from future employment; or (e) be brought down to lower stage in the scale of pay up to a maximum of two stages; or (f) have his increments stopped with or without cumulative effect; or (g) (h) have his special pay withdrawn; or be warned or censured, or have an adverse remark entered against him; Or (i) be fined.‖ - 17 - 16. Learned counsel appearing for the appellant has submitted that in view of the condition stipulated under the caption ―Date of effect‖, the said Bipartite Settlement is to be applicable from the date of Settlement and hence the same will be applicable from 10th April, 2002. It has been contended that in the Settlement of the year 2002, there is punishment of compulsory retirement, but in the Bipartite Settlement of the year 1966, there is no punishment of compulsory retirement. But the punishment of compulsory retirement has been imposed even though the punishment, on remand by this Court dated 08.05.2007, ought to have been made on the basis of the Bipartite Settlement of the year 1966, since, the departmental proceeding was initiated on the basis of the Bipartite Settlement of the year 1966. 17. This Court is of the view that what has been contended, as referred hereinabove, is not acceptable, reason being that the stipulation made under the caption heading ―Terms of Settlement‖ wherein it has been stipulated that the earlier settlement, i.e., 1966, will be superseded and substituted by the Bipartite Settlement of the year 2002. However, it has also been stipulated that the Settlement will be applicable from the date of settlement. If the substitution by way of Settlement of the year 2002 has to be accepted from the date of its issuance then the - 18 - question would be that if the services of the delinquent employee has been dismissed which suggests that the service of such employee is not required due to commission of proved misconduct and in that view of the matter and in absence of the punishment of compulsory retirement, the disciplinary authority will have no option but to keep the concerned employee in service and that is the reason, considering from this angle, the punishment of compulsory retirement since has been inserted in the settlement of the year 2002 by way of substitution, hence the same will be held to be applicable from the year 1966. 18. The supersession of a statute or regulation which has got the statutory fervor, will have its implication of repealment of the earlier condition and once there is repealment of the earlier basis of taking decision, there cannot be any order on the basis of such repealment. It requires to refer herein that the Bipartite Settlement is having the statutory fervor since the parties have come out with a settlement with respect to its terms and conditions after passing of Award which means that the said settlement is within the meaning of Section 18 of the Industrial Disputes Act, 1947 and hence, the moment it has been treated under Section 18 of the Industrial Disputes Act, 1947, it will have the statutory fervor and, as such, the moment the Settlement of the year 1966 has been superseded and substituted by the - 19 - 2002 Settlement, the implied meaning of the same would be that for any purpose whatsoever, the disciplinary authority is to take decision on the basis of the settlement available and not on the basis of the settlement which has lost its force. Further it is settled connotation of law that if there is both repeal and introduction of another provision in place thereof by a single exercise the expression ―substituted‖ is used. Such deletion has effect of repeal of the existing provision and also provides for introduction of new provision. As per the judgment rendered by the Hon‘ble Apex Court in the case of Koteshwar Vittal Kamath v. K. Rangappa Baliya and Co., reported in (1969) 1 SCC 255, the process of substitution consists of two steps. First the old rule is made to cease to exist and, next, the new rule is brought into existence in its place. As per the Judgment rendered by the Hon’ble Apex Court in the case of Government of India v. Indian Tobacco Association reported in (2005) 7 SCC 396 wherein the question fell for consideration was as to what would be the effect of subsequent notification substituting the list of places specified in the original notification. The Hon’ble Apex Court in the said judgment has observed at Paragraph-15 : ―15.The word ―substitute‖ ordinarily would mean ―to put (one) in place of another‖; or ―to replace‖. In Black’s Law Dictionary, 5th Edn., at p.1281, the - 20 - word ―substitute‖ has been defined to mean ―to put in the place of another person or thing‖, to ―to exchange‖. In collins English Dictionary, the word ―substitute‖ has been defined to mean ―to serve or cause to serve in place of another person or thing‖; ―to replace (an atom or ground in a molecule) with (another atom or group)‖; or ―a person or thing that serves in place of another, such as a player in a game who takes the place of an injured colleague‖. 19. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., pro tanto repeal. Reference in this regard be made to the Judgment rendered by the Hon‘ble Apex Court in the case of State of Uttar Pradesh v. Hirendra Pal Singh, reported in (2011) 5 SCC 305 wherein their Lordships have held at paragraphs-22 & 24 which are being quoted hereinbelow: ―22. It is a settled legal proposition that whenever an Act is repealed, it must be considered as if it had never existed. The object of repeal is to obliterate the Act from the statutory books, except for certain purposes as provided under Section 6 of the General Clauses Act, 1897. Repeal is not a matter of mere form but is of substance. Therefore, on repeal, the earlier provisions stand obliterated/abrogated/wiped out wholly, i.e., pro tanto repeal. 24. Thus, there is a clear distinction between repeal and suspension of the statutory provisions and the material difference between both is that repeal removes the law entirely; when suspended, it still exists and has operation in other respects except - 21 - wherein it has been suspended. Thus, a repeal puts an end to the law. A suspension holds it in abeyance.‖ The issue of repealment and saving was also the subject matter before the Hon’ble Apex Court in the case of Manas Purohit v. The State of Odisha, in Special Leave Petition (Civil) Diary No(s). 1706 of 2019 wherein a three judges Bench of Hon’ble Apex Court has been pleased to hold at paragraph 23, 24 & 25, which reads hereunder as: 23. In Principles of Statutory Interpretation, 14th Edition by Justice G.P. Singh, following observation has been made: ―The distinction between what is, and what is not a right preserved by the provisions of Section 6, General Clauses Act is often one of great fineness. What is unaffected by the repeal of a statute is a right acquired or accrued under it and not a mere ‗hope or expectation of‘, or liberty to apply for, acquiring a right. A distinction is drawn between a legal proceeding for enforcing a right acquired or accrued and a legal proceeding for acquisition of a right. The former is saved whereas the latter is not. In construing identical provisions of section 10 of the Hong Kong Interpretation Ordinance, LORD MARRIS speaking for the Privy Council observed:―It may be, therefore, that under some repealed enactment, a right has been given, but that, in respect of it, some investigation or legal proceeding is necessary. The right is then unaffected and preserved. It will be preserved even if a process of quantification is necessary. But there is a manifest distinction between an investigation in respect of a right and an investigation which is to decide whether some right should or should not be given. On a repeal, the former is preserved by the - 22 - Interpretation Act. The latter is not. The LORD CHANCELLOR’S (LORD HERSCHELL’S) observations in an earlier Privy Council case, that ―mere right to take advantage of an enactment without any act done by an individual towards availing himself of that right cannot property be deemed a right accrued‖, are not to be understood as supporting the view that if steps are taken under a statute for acquiring a right, the right accrues even if the steps taken do not reach the stage when the right is given, nor do the said observations support the view that if no steps are taken for enforcement of a right come into existence, the right is not an accrued right. As explained by SINHA, C.J. the observations of LORD HERSCHLL are only authority for the proposition that ―the mere right, existing at the date of a repealing statute to take advantage of provisions of the statute repealed is not a right accrued. Inchoate or contingent rights and liabilities, i.e., rights and liabilities which have accrued but which are in the progress of being enforced or are yet to be enforced are unaffected for clause (c) clearly contemplates that there will be situations when an investigation, legal proceeding or remedy may have to be continued or resorted to before the right or liability can be enforced. Such a right or liability is not merely a ‗hope‘ which is destroyed by the repeal. It is submitted that as pointed out by SIMON BROWN, L.J., the two expressions are generally used in saving legislations to convey the same idea and are not mutually exclusive. Yet a possible distinction may be made between cases where some step, after the Act comes into force, is needed to be taken by the claimant for getting the right and cases where the Act, without anything being further done by the claimant confers the right. In the former class of cases, it would be a right acquired after the necessary step is taken whereas in the latter class of - 23 - cases it would be a right accrued by mere force of the Act. The right of a tenant, who has the land for a certain number of years and who has personally cultivated the same for that period ‗to be deemed to be protected tenant‘ under the provisions of a statute has been held to be an accrued right which will survive the repeal of the statute. Similarly, a right conferred by an Act that every lease shall be deemed to be for a period of ten years is a right acquired and will be unaffected by repeal of the Act. But the so- called right of a statutory tenant to protection against eviction under a Control of Eviction Act is mere advantage and not a right in the real sense and does not continue after repeal of the Act. Similarly on the reasoning that the right of a tenant to get standard rent fixed and not to pay contractual rent in excess of standard rent under a Rent Control Act is only a protective right and not a vested right, it has been held that when during the pendency of an application for fixation of standard rent, the Act is amended and it ceases to apply to the premises in question, the application is rendered incompetent and has to be dismissed as infructuous. The option given to a grantee to make additional purchases of Crown land on fulfilment of certain conditions under the provisions of the statute was held to be not an accrued right when the statute was repealed before the exercise of the option. The privilege to get an extension of a licence under an enactment is not an accrued right and no application can be filed after the repeal of the enactment for renewal of the licence. The right of privilege to claim benefit of condonation of delay is not an accrued right under a repealed provision when the delay had not occurred before the repeal of the said provision. The right of pre-emption conferred by an Act it is remedial right or in other words a right to take - 24 - advantage of an enactment for acquiring a right to land or other property and cannot be said to have been acquired or accrued until a decree is passed and does not survive if the Act is repealed before passing of the final decree. The right of a Government servant to be considered for promotion in accordance with existing rules is not a vested right and does not survive if the Government takes a policy decision not to fill up the vacancy pending revision of the rules and the revised rules with repeal the existing rules do not make him eligible for promotion. General savings of rights accrued, and liabilities incurred under a repealed Act by force of section 6, General Clauses Act, are subject to a contrary intention evinced by the repealing Act. In case of a bare repeal, there is hardly any room for a contrary intention; but when the repeal is accompanied by fresh legislation on the same subject, the provisions of the new Act will have evinces a contrary intention affecting the operation of section 6, General Clauses Act. ……When a saving clause in a new Act is comprehensively worded and is detailed, it may be possible to infer that it is exhaustive and expresses a intention not to call for the application of section 6, General Clauses Act. 24. It is apparent from the aforesaid discussion that what is unaffected by the repeal of a statute is a right acquired or accrued and not mere hope or expectation of or liberty to apply for acquiring a right. There is a distinction in making an application for acquiring a right. If under some repealed enactment, a right has been given, but on investigation in respect of a right is necessary whether such right should be or should not be given, no such right is saved. Right to take advantage of a provision is not saved. After repeal, an advantage available under the repealed Act to apply and obtain relief is not a right which is saved when the application was necessary and it was discretionary to - 25 - grant the relief and investigation was required whether relief should be granted or not. The repeal would not save the right to obtain such a relief. The right of pre- emption is not an accrued right. It is a remedial right to take advantage of an enactment. The right of a Government servant to be considered for promotion under repealed rules is not a vested right unless repeal provision contains some saving and right has been violated earlier. 25. In general savings of the rights accrued under Section 6 of the General Clauses Act are subject to a contrary intention evinced by the repealing Act. It depends upon the repealing provisions what it keeps alive and what it intends to destroy when repeal and saving clause is comprehensively worded, then the provisions of Section 6 of the General Clauses Act are not applicable.‖ 20. On the basis of discussion made hereinabove It is evident that once the statutory provision has been repealed, there cannot be any decision by the authority concerned on the basis of the repealed provision and applying the said principle herein also, since the Bipartite Settlement of the year 1966 has already been superseded which impliedly means that the Bipartite Settlement of the year 1966 has been repealed and since it has been substituted by Bipartite Settlement of the year 2002, as such, if the disciplinary authority has passed order on the basis of the Settlement of the year 2002 inflicting the punishment of compulsory retirement with the superannuation benefits, the same according to our considered view, cannot be said to suffer from an error. - 26 - The learned Single Judge has negated the said argument of the writ-petitioner/appellant by making an observation that inflicting punishment is in the domain of the disciplinary authority. 21. We, however, do not dispute such observation but the domain is to be exercised well within its jurisdiction and if the domain is being exercised beyond its jurisdiction, such decision taken by the disciplinary authority, according to our considered view, will be said to be illegal. 22. Law is well settled that punishment if not enshrined in the list of punishment, cannot be imposed, reference in this regard by made to the judgment rendered by Hon‘ble Apex Court in the case of Vijay Singh v. State of U.P., reported in (2012) 5 SCC 242. The relevant paragraph of the said judgment is quoted hereunder as:- ―11. Admittedly, the punishment imposed upon the appellant is not provided for under Rule 4 of the 1991 Rules. Integrity of a person can be withheld for sufficient reasons at the time of filling up the annual confidential report. However, if the statutory rules so prescribe, it can also be withheld as a punishment. The order passed by the disciplinary authority withholding the integrity certificate as a punishment for delinquency is without jurisdiction, not being provided under the 1991 Rules, since the same could not be termed as punishment under the Rules. The Rules do not empower the disciplinary authority to impose ―any other‖ major or minor punishment. It is a settled proposition of law that punishment not prescribed under the Rules as a result of disciplinary proceedings cannot be awarded. - 27 - 12. This Court in State of U.P. v. Madhav Prasad Sharma dealt with the aforesaid 1991 Rules and after quoting Rule 4 thereof held as under: (SCC p. 216, para 16) ―16. We are not concerned about other rule. The perusal of major and minor penalties prescribed in the above Rule makes it clear that ‗sanctioning leave without pay‘ is not one of the punishments prescribed, though, and under what circumstances leave has been sanctioned without pay is a different aspect with which we are not concerned for the present. However, Rule 4 makes it clear that sanction of leave without pay is not one of the punishments prescribed. Disciplinary authority is competent to impose appropriate penalty from those provided in Rule 4 of the Rules which deals with the major penalties and minor penalties. Denial of salary on the ground of ‗no work no pay‘ cannot be treated as a penalty in view of statutory provisions contained in Rule 4 defining the penalties in clear terms.‖ (emphasis added) 15. Imposing the punishment for a proved delinquency is regulated and controlled by the statutory rules. Therefore, while performing the quasi-judicial functions, the authority is not permitted to ignore the statutory rules under which punishment is to be imposed. The disciplinary authority is bound to give strict adherence to the said rules. Thus, the order of punishment being outside the purview of the statutory rules is a nullity and cannot be enforced against the appellant.‖ 23. Here, in the instant case, the same ground is being agitated that the punishment of compulsory retirement was not available in the Settlement of the year 1966 and the day when the order of punishment of compulsory retirement was passed, the Settlement of the year 1966 was not in force. - 28 - Learned counsel for the appellant, in that respect, is correct but herein the fact is otherwise since after the supersession of 1966 Settlement, the same has been substituted by the Bipartite Settlement of the year 2002, therefore, the disciplinary authority is competent enough to take decision on the basis of the Settlement of the year 2002, the day when such decision was taken, the Settlement of the year 2002 was in existence and in view of the discussion made hereinabove, based upon the judgment rendered by Hon‘ble Apex Court that the effect of the amendment by way of substitution will go to the original settlement. As such, it cannot be said that if on the basis of remand order passed by this Court in W.P.(S) No. 5927 of 2004 by quashing the impugned order of dismissal, the punishment of order of compulsory retirement has been passed, which is lesser in quantum to that of the order of dismissal, the same is without any authority/jurisdiction. 24. This Court, in that view of the matter, is of the view that the observation so made by the learned Single Judge to the effect that to impose a punishment is within the domain of the disciplinary authority, cannot be considered to be proper and justified on the basis of reason aforesaid. Even though the said observation is not proper, but the same will have no bearing with the outcome of the decision by the learned Single Judge as per the discussion made - 29 - above. 25. The order of punishment, if enshrined, is definitely within the domain of the disciplinary authority and the same can only be interfered with by the High court in exercise of power of judicial review conferred under Article 226 of the Constitution of India but the power of judicial review is very limited and to be exercised as per the guidelines given by the Hon‘ble Apex Court in the case of Union of India v. P. Gunasekaran reported in AIR 2015 SC 545 wherein at paragraph 13 thereof, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision which reads hereunder as: ―13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re- appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry is held according to the procedure prescribed in that behalf; c. there is violation of the principles of natural justice in conducting the proceedings; d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; - 30 - e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; i. the finding of fact is based on no evidence. Under Article 226/227 of the Constitution of India, the High Court shall not: (i). re-appreciate the evidence; (ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; (iii). go into the adequacy of the evidence; (iv). go into the reliability of the evidence; (v). interfere, if there be some legal evidence on which findings can be based. (vi). correct the error of fact however grave it may appear to be; (vii). go into the proportionality of punishment unless it shocks its conscience.‖ The Hon‘ble Apex Court in the case of Central Industrial Security Force and Ors. v. Abrar Ali reported in AIR (2017) SC 200, wherein the following guidelines have been laid down, showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, the same extract of para 8 thereof, is referred hereinbelow: ―8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High - 31 - Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported