Mehar Singh Virk v. Punjab & Sind Bank & Anr.

Mr. J.S.Sathi, Advocate, for the respondents. ----

1. Whether reporters of local papers may be allowed to see the judgment ? Yes. To be referred to the reporters or not ? Yes.

2. 3. Whether the judgment should be reported in the digest ? Yes. ---- K.Kannan, J. (Oral)

1. The writ petition challenges the order of retirement issued on 31.07.2008 to the extent of making the retirement of the petitioner subject to the disciplinary proceedings, even though, according to the petitioner, no such proceedings were pending. The contention of the petitioner was that he had retired on 31.07.2008 and the charge-sheet had been issued subsequent to the retirement nearly 6 months later namely on

15.01.2009. Referring to the regulation of the Bank under Regulation 20 (3)(iii), the contention is that the disciplinary proceedings are said to be pending only when a charge-sheet is filed and a mere show cause notice will not amount to initiation of proceedings or pendency of proceedings. Civil Writ Petition No.5809 of 2009 - 2 - The learned counsel for the petitioner relies on the judgment of the Hon'ble Supreme Court in UCO Bank and another Versus Rajinder Lal Capoor-AIR 2007 Supreme Court 2129 (1) that referred to Regulation 20(3)(iii). The Hon'ble Supreme Court held that when the disciplinary proceedings admittedly had been initiated in terms of Regulation 20(3) (iii), the legal fiction must be extended only to a case where a charge- sheet had been issued on that date. The Hon'ble Supreme Court was holding that in departmental proceedings, it was trite law that it could not be stated to be initiated merely by issuance of show cause notice. It could be stated to be initiated only when the charge-sheet was filed. The decision, according to the learned counsel for the petitioner, is squarely applicable to the facts and, therefore, the issuance of charge-sheet was not valid in law.

2. The learned counsel appearing on behalf of the Bank submits that the said judgment of the Hon'ble Supreme Court has been rendered without reference to yet another clause in the same regulation which constitutes even suspension or notice as constituting a part of the proceedings. The entire regulation 20 with sub-clauses is reproduced as under:- “Regulation 20 of Service Regulations:-

20.3(i) An officer against whom disciplinary proceedings are pending shall not leave/discontinue or resign from his service in the bank without the prior approval in writing of Competent Authority and any notice or resignation given by such an officer before or during the disciplinary proceedings shall not take effect unless it is accepted by the Competent Authority. Civil Writ Petition No.5809 of 2009 - 3 - (ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this regulation if he has been placed under suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him and will be deemed to be pending until final orders are passed by the Competent Authority. (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 contribution to CPF.”

3. It must be noticed that when the Bank passed an order of relieving the petitioner, it did not do so unconditionally. The relieving order reads as follows:- “You hereby stand relieved on attaining the age of superannuation retirement today after working hours except for the purpose of completion of disciplinary case pending against you and your remaining terminal dues shall be settled in terms of clause 3(iii) of regulation 20 of P&B (O) Service Regulation 1982 and regulation 46 of P&B (Employees Pension) regulation 1995, after the disciplinary proceedings against you are completed and final order is passed.”

4. The Bank could, therefore, be understood as allowing the petitioner to be relieved only subject to the regulation that provided a Civil Writ Petition No.5809 of 2009 - 4 - deeming provision of the pendency of the departmental proceedings if a notice to show cause had been issued. In so far as the judgment of the Hon'ble Supreme Court does not make any reference to a clause like the one which is reproduced under Regulation 20(3)(ii) and also a situation where the relieving order clearly spelt out that he was being relieved only subject to Clause 3(i), the petitioner cannot be heard to contend now that the relieving order was wrongly made or that it was in conflict with the regulation. This very clause has come for consideration before a Division Bench of this Court in T.S.Gandhok Versus Punjab & Sind Bank-2003(1) SCT 782, the regulation has been specifically quoted in para 8 and the discussion in relation to that comes through its observation in para 15 which is reproduced. “It is the case of the respondent-Bank that the petitioner had been unauthorisedly absenting himself from duty since

21.7.1995. A telegram dated 8.8.1995 Annexure R1 was issued to the petitioner asking him to join his duty immediately and that his absence was unauthorised and was viewed seriously. Thereafter, the petitioner was also informed vide letter dated 10.1.1996 Annexure R2 instructing him to report for duty otherwise his absence would be treated as unauthorised. This was followed by another telegram dated 10.1.1996 in respect of which confirmation through post was also sent advising the petitioner to join duty. He was informed that his absence was treated as unauthorised and in terms of Regulation 13 it constitutes a misconduct. In this view of the matter, we are of the view that the petitioner was aware of the contemplated disciplinary action against him as he had been continuously absenting himself from duty. The notice of voluntary retirement submitted on 12.1.1997 was only to Civil Writ Petition No.5809 of 2009 - 5 - avoid disciplinary action against him. A reading of Regulation 20(3) also shows the intention of the Regulations that the same have been framed with a view to curb the tendency of the employees to avoid disciplinary proceedings by either resigning or seeking voluntary retirement. The technical plea urged by the petitioner that no disciplinary proceedings were pending on the date of submission of notice on 12.1.1997 is inconsequential in the circumstances as the petitioner was aware of the contemplated disciplinary proceedings. It is for this purpose and to meet such eventualities that Regulation 20(3) has been framed.”

5. The writ petition, in my view, is devoid of merits and is, accordingly, dismissed.

12.03.2010 sanjeev (K.KANNAN) JUDGE