Parminder Singh v. Punjab and Sind Bank

7. Mr. Jagat Arora, learned counsel would submit that the appearing for the respondent bank present petitions are premature inasmuch outcome of the proceedings in the as the charged officer must await the enquiry Vs. Kunisetty Satyanarayana, Regulation 48 has applicable when the recovety of pecuniaty loss caused to the bank i to be recovered. According to hint, in terms of Regulations 43 and 45, the respondent bank is within its right to proceed departmentally case reported as 2007 (1) LLN 773, Union ofIndio That apart, it is his submission that no application in the facts of these cases! as the sarnie is IS sought 'v.against the petitioners for the purpose of pension, even though they have retired attaining the age of superannuation/voluntary retirement would rely upon the judgment of the Supreme Labour Industrial Cases on. In this regard, he Court reported as 2015 685 Stale of West Bengal Vs. Pronab Chakraborty. He would also state that the guidelines issued by the CVC very clear; the limitation fraud; other criminal offences; are of four years shall not be applicable in cases of cases where mala fide are inferable and be observed.

8. Having considered the submissions made by the learned counsel for the parties, insofar as the submission that Regulation 48 has no applicability in view of Regulations 43 and 45 is concerned, I reproduce hereunder the said Regulations for a better understanding oftlie submissions made; V pension or a part thereof, whether specifiedperiod, ifthe pension i or criminal breach of tract orforgery or actingfraudulerttl or ISfound guilty ofgrave misconduct Provided that wfiere a part ofpension is withheld or withdrawn, the amount ofsuch pension shall not be reduced below the minimum pensionper permanently or, for a IS convicted ofa serious crime mensempayable under these regulations.

XXX XXX XXX

45. Pension guilty ofgrave misconduct In a case not falling under regulation 44 ifthe Competent Authority considers that the pensioner is shall, before passing prima facie guilty of grave misconduct, it order, follow the procedure specified in Punjab & Sind Bank Officer Employees Appeal) Regulations, 1982 an (Discipline & or in Settlement as the case may be.

XXX XXX XXX

48. Recovery ofPecuniary loss caused to the Bank (1) competent authority may withhold or withdraw part thereof whether permanently or fo and order re The apension or a specified period. r a coveryfrom pension-ofthe whole or part ofany pecuniary loss caused to the Bank ifin any departmental or judicial proceedings the pensioner is found guilty of grave or criminal breach of trust or misconduct or negligence X final orders are passed. Provided further that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be proceedings under these regulations and shall be and concluded by the continued authority by which they same manner as if the employee had (2) No departmental proceedings, fnot employee were commenced in the continued in service, instituted while the instituted in ^^as in service, shall be respect of an event which took place more than four years before such institution: Provided that the disciplinary proceedings so instituted shall be in accordance With the procedure applicable to disciplinary proceedings in relation to the employee during the period ofhis Where the Competent Authority orders. loss from the pension, the recovery shall service. (3) recovery ofpecuniary not ordinarily be made at a rate exceeding -third ofthe pension admissible one the date ofretirement ofemployee; on Provided that where a part of pension is withheld or the amount ofpension drawn by a pensioner shall not be less than the minimum pension payable under these withdrawn. regulations ”.

9. A perusal of Regulations 43 and 45, are related to withholding or withdrawal of pension for no doubt, would reveal that they of withholding or withdrawal ofpension ifthe pensioners are convicted for a or,me or criminal breach of tmst or forgery or acting fraudulently or is found guilty of grave misconduct. serious At the same time, Rdgulation 48 also contemplates withholding or withdrawal ofpension, whether peimanently or for specified period, and order recoveiy from pension of the whole or part of pecuniary loss caused to a bank if in a departmental or judicial proceedings, the pensioner is found guilty of negligence or criminal breach of trust grave misconduct or or forgery or acts done fraudulently during the period of service. Regulation 43 stipulates, withholding or withdrawal of pension for the ^reasons stated therein. Regulation 45 prescribes the procedure to be followed before it is concluded that pensioner is guilty of grave misconduct. Regulation 48 contemplates withholding or withdrawal of pension and additionally, order recovery from, pension of the whole or part of pecuniary loss, in the eventuality, the pensioner is found guilty of grave negligence or a misconduct. or criminal breach of trust, or forgery or acts done fraudulently/ done during the period of service. Proviso (3) thereto is a clause relating to limitation inasmuch it stipules for departmental proceedings for any event which took place ‘no more than four conjunction with Regulation 48. ofpecuniary loss as urged by Mr. Arora. co contemplates withholding or withdrawal of whether Regulation 48 is not specific for recovery counsel for the respondent. It also pension or a part thereof, I note, the charge sheet permanently or for issued to the petitioners.is in a specified period. terms of Regulation 43 read with Regulations 45 and 48 of the Pension Regulations lOos u. regulations, 199... hence, the submission of Mr. Arora i IS not sustainable on the face of the provisions under which, the charge sheets have been issued.

10. Insofar as the reliance placed by Mi* Chakrahorty (supra) i to the respondent in that case retired on • Arora, on the judgment of the case of State of West Bengal Vs. Pronab IS concerned, the same relates to a charge sheet issued on July 31, 2007 whereas the respondent attaining the age of superannuatio non January 31,2008. On the contention of the respondent before the High Court th at he having retired on attaining the age of < superannuation on January 31, 2008 departmental could not be allowed to proceed further, prayer. In the order impugned before the proceedings initiated against him, the High Court accepted the Supreme Court dated December r 22, 2010, the High Court interpreted the Rules, 1971, which is being conducted against an individual reproduced hereunder, that departmental proceeding employee could proceed further afte the employee’s retirement, only when allegations contained in the charges levelled against him depict pecuniary loss to the St ate Govemment:- V..

10. Right of the Governor certain cases. - (1) The Governor right ofwithholding or withdrawing a pension or anypart of it whether to withhold pension in reserves to himself the permanently or for a specified period, and the right of ordering the recovery from a pension of the whole or part of any pecuniary loss Government, if the pensioner is found or judicial proceeding to have been guilty of grave misconduct or caused to in a departmental negligence, during the period of his service, including service rendered re-employment on after retirement: Provided that- (a) such departmental proceeding if instituted while the officer was in during his of the office, be deemed article and shall be service, whether before his retirement or mployment, shall after thefinal retirement to be a proceeding under this continued and concluded by the authority by which it was commenced in the re-e same manner 1^ (b) Such departmentalproceedings, ifnot instituted while the office M>as in service, whether before his retirement or during his re-employment-

(i) shall not be instituted

(ii) shall not be in respect ofany event which tookplace than fouryears) before such institution; more and (ui) shall be conducted by such authority and in such place as the Governor may direct and in accordance with the procedure applicable to departmental proceedings in which an order ofdismissalfrom service could be made in relation to the officer during his service;

(c) no suchjudicial proceeding, fnot instituted while the officer was in service, whether before his retirem,ent or during his re-employment shall be instituted in respect of a cause of action which arose or an event which took place more than fouryears) before such institution.... ” The High Court further was of the view that the charges levelled against the respondent, did not depict any pecuniary loss to the State Government, the proceedings against the respondent could not be continued after January 31.

2008. The Supreme Court, in appeal against the order of the High Court, IX the right of withholding or withdrawal the pension, which the delinquent employee is entitled to, permanently or for specified period and secondly, the right of ordering the recovery from a pension, ofthe whole or part of any pecuniary loss caused to the Government. The Supreme Court held, that, the above two punishments can be inflicted on a delinquent, even after his attaining the age of superannuation, provided he is found guilty of grave misconduct or negligence during the period of service. Further, the Supreme Court in para 5 has held as under: “5. It is therefore apparent, that it is not only for pecuniary loss caused to the Government that proceedings continue after the date ofsuperannuation. An employee be proceeded against, after the date ofhis retirement, on account of... grave misconduct or negligence... ”. Therefore, even in the absence ofanypecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retiredfrom service. Obviously, ifsuch grave misconduct or can can negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the concerned employee. It was therefore not rightfor the High Court, while interpreting Rule 10(1) of the 1971 Rules to n loss to the Government”.

11. The abovesaid judgment as relied upon by Mr. Arora, is distinguishable as the question which falls for consideration in the present cases is different from the one which fell for consideration before the Supreme Court. The issue which falls for consideration is covered by the judgment of the Supreme Court in the case of Shri Krishna Pmdey (supra), wherein, the Supreme Court was considering Regulation 351(A) of Central Civil Services (Pension) Rules, 1972,.which reads as under: "The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it, whether permanently orfor a specified period and the right ofordering the recoveryfrom a pension ofthe whole part of any pecuniary loss caused to Government, ifthepensioner is found in departmental orjudicial proceedings to have been guilty of grave mis-conduct, or to have caused pecuniary loss to Government by misconduct or negligence, during his service, including service rendered on re-employment after retirement: Provided that a) such departmental proceedings, ifnot instituted while the officer was on duty either before retirement or during rer i) shall not be i Governor, ii) shall be in instituted save with the sanction of the respect ofan event which tookplace than four years before the institution and not more of such proceedings, Hi) shall be conducted by such authority and or places as the Governor may direct and i with the procedure applicable to proceedings order ofdismissalfrom service m.ay be made, b)judicialproceedings, ifnot instituted while the offi. duty either before retirement V in such place in accordance on which an leer was on or during re-employment, shall have been instituted in accordance with sub -clause (ii) ofclause (a) and c) the Public Si before final orders purpose ofthis article oervice Commission, U.P., shall be consulted passed. Explanation - For the are a) departmental proceedings shall be deemed instituted when the charges framed against the are issued to him. to have been f'pensioner or if the officer has been placed under suspensionfrom an earlier date, on such date; and i) in the case ofcriminal proceedings, on the date on which a complaint is made, or a charge sheet is submitted, to a criminal court; and li) in the case ofcivilproceedings, on the date on which the n Note:- As, this article soon « proceedings ofthe nature referred to in, institutes such Proceedtngs shall without delay intimate thefact to the Audit ujjicer concerned." are i instituted the authority which i

12. In the case ofShri Krishna Pand. ey (supra), the departmental enquiiy embezzlement of Rs.2,47,779/-^ on on March 31, 1987, he was allowed to FIR was lodged and investigation was in progress. challenged the same before the High petition, directing the petitioner to pay on an interpretation ofthe Regulation 35i(A) ofCivil Service Regulation, in para 6, has held as under: initiated against the respondent for attaining the age of superannuation retire from service. was When no pension was paid to him, he Court. The High Court allowed the pension. The Supreme Court, “6. It would thus be seen that proceedings required to be instituted against a delinquent officer before retirement. There is no ojjicer to continue in service are specific provision allowing the nor any orderpassed to allow him to continue re-employment till the on enquiry is to retire from service, the proceedings be measure and the action initiated completed, without allowing him Equally, there is no provision that initiated as disciplinary by necessary implication, prior sanction ofthe Governor to continue the proceedings against him i. IS required. On the indicate that if the officer other hand, the rule also would causedpecuniary loss or committed embezzlement etc. due to misconduct or negligence or dereliction of duty, then proceedings should also be instituted after retirement against the officer as expeditiously as possible. But the events of misconduct etc. which may have resulted in the loss to the Government or embezzlement, i.e. the causefor the institution of proceedings, should not have taken place more than four years before the date of institution of proceedings. In other words, the departmental proceedings must be instituted before lapse offour years from the date on which the event ofmisconduct taken place. Admittedly, in this case the officer had retired on March 31, 1987 and the proceedings were initiated on April 21, 1991. Obviously, the m etc. had event of embezzlement which causedpecuniary loss to the State tookplace prior to four yearsfrom the date ofhis retirement. Under these circumstances, the State had disabled itself by their deliberate omissions to take appropriate action against the respondent and allowed the officer to escape from provisions ofRule 351-A ofthe Rules. This order does not preclude proceeding with the investigation into the the Hence, it is suffice to conclude that 3’''^ Proviso would come into play in the facts of these cases inasmuch as the enhancement of bank guarantee from Rs. 10 Crores to Rs. 20 Crores was effected on February 6, 2009. The show cause notice(s) was issued on September 28, 2013, which was after the retirement of the petitioners as well as beyond a period of four years. In any the show cause notice(s) is not initiation of a departmental proceeding. Be that as it may, even the charge sheets have been issued on December 26, 2014, which is also beyond a period of four years from the date of the event i.e. February 6, 2009. Hence, the respondent is precluded frbm taking any action against the petitioners. Insofar as the judgment referred to by Mr. Arora in the case of Kunisetty Satyanarayana (supra) is concerned, the Suprenie Court in the primarily concerned with facts wherein the challenge was made to the charge sheet alleging that he does not belong to Konda Kapu community which was an ST community and as such, was not entitled to reservation under ST category. The Supreme Court was of the view that the challenge to the charge sheet was premature as a mere charge sheet or show cause notice, does not give rise to any cause of action because it does not

13. case.

14. said case was same has been issued by a person, who has no jurisdiction to do so. According to the Supreme Court, it is quite possible, after considering the reply to the show cause notice or after holding the enquiry, the authority concerned, may drop the proceedings or hold that the charges established. It is well settled that a writ lies when a party infringes the right of other party. A mere show cause notice or the charge 'sheet does not infringe the right of anyone. In the cases in hand, it is the stand of the petitioners that the charge sheets issued are without jurisdiction and not permitted under the Rules, and since, no response was received, they have approached this Court. It is clear, the issue raised in the present petitions goes to the root, on the maintainability of the charge sheets in violation of 3'''* Proviso to Regulation 48(1) and the same could be challenged by the petitioners at the threshold so as to avoid rigours of a departmental proceedings, which in law, are not maintainable. Thus, the submission of Mr. Arora needs to be rejected. The plea of Mr. Arora on the circular of CVC also needs to be rejected in view of statutory nature ofRegulation 48(1) ofPension Regulations, 1995. In view of the above discussion, the present writ petitions are allowed. are not I-

15.

16. « quashed.

17. No costs. C^M Nos.l1631/2015,11633/2015,11635/2015.11637/2015I& 13408/2015 In view ofthe order passed in the writ petitions, the applications stand disposed of as infructuous. ‘M 0^ e

V. KAMESW^ RAO, J