@JUDGMENTTAG-ORDER
S. Rajeswaran, J.@mdashThe case of the petitioner is as follows:
When the petitioner was working as an officer in the respondent bank, he was issued with a memo dated 21.08.2008, alleging certain irregularities in the loans sanctioned. On 27.08.2008., the petitioner submitted his explanation. He was to retire on 30.08.2008. On 27.08.2008 the impugned order was passed by the second respondent reserving their right to initiate departmental proceedings. It was also stated therein that the petitioner would not receive any retirement benefits till the disciplinary proceedings are completed and the final order is passed thereon. On 22.04.2009 charge sheet was issued asking him to give his explanation within 7 days. Challenging the charge sheet, the writ petitioner has filed the above petition for the above said prayer.
2. This Court on 14.05.2009 directed the respondent Bank not to proceed further pursuant to the issuance of charge sheet dated 22.04.2009.
3. I have heard the learned Counsel for the petitioner and the learned Counsel for the respondents. I have also gone through the documents available on record.
4. Learned Counsel for the petitioner while reiterating the averments made in the affidavit would submit that in the recent judgment reported in
5. Per contra the learned Counsel for the respondent Bank would contend that initiation of departmental proceedings would mean that issuance of show cause notice only and not issuance of charge sheet as contended by the learned Counsel for the petitioner. He has very much relied on Clause 20(3)(ii) of Union Bank of India (Officers) Service Regulations 1979 in this regard.
6. I have considered the rival submissions carefully with regard to facts and citations.
7. From the records, it is made clear that on 21.08.2008, a notice was issued by the second respondent to the petitioner alleging irregularities in the advances sanctioned by the petitioner for tractor loans, housing loans and Union mortgage loans. The petitioner was called upon to give his reply within five days. The petitioner submitted his reply dt.27.08.2008 stating that what he did was only for the interest of the Bank and also to achieve the business parameters as fixed by the Bank and considering the fact that he would be retiring from service on 31.8.2008, further action could be dropped.
8. On the very same day, i.e., 27.8.2008, the second respondent issued an order informing the petitioner that in terms of Regulation 20(3)(iii) of the Union Bank of India Officers Employees Service Regulation 1979, he would cease to be in the service of the Bank from the date of his superannuation i.e. with effect from 01.09.2008, but the disciplinary proceedings would continue as if he is in the service till the proceedings are concluded and final order is passed. It is made clear in the order dt.27.08.2008 that the petitioner would not receive any pay or allowances after the date of superannuation and he would also be not entitled to for the payment of retirement benefits till the departmental proceedings are completed and final order is passed except his own contribution to C.P.F. Consequently, the petitioner was allowed to retire from the service of the Bank on and from 01.09.2008. Thereafter, the petitioner has been making representation to the respondents to release his retirement benefits and also to stop further action. In fact, on 16.02.2009, he made a representation to the respondents stating that the issuance of memorandum dt.27.08.2008 is not legal as no disciplinary proceedings were initiated against him by issuing the charge sheet before his retirement. Thereafter, the respondent/Bank issued Articles of charge dt.22.04.2009 to the petitioner and challenging the same along with the Memo dt.27.08.2008, the above writ petition has been filed for the aforesaid relief.
9. The learned Counsel for the petitioner has very much placed his reliance on the decision of the Hon''ble Supreme Court reported in
10. In
11. In the light of the facts and circumstances of the case, the Hon''ble Supreme Court in
18. The fact that charge-sheet was issued only on 13-11-1998 is not in dispute. It also stands admitted that the respondent attained the age of superannuation on or before 1-11-1996. Disciplinary proceedings admittedly were initiated against the respondent in terms of Regulation 20(3)(iii) of the UCO Bank Officer Employees'' Services Regulations, 1979 which reads as under:
20. (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 officer concerned 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 contributions to CPF.
19. A bare perusal of the said provision would clearly show that by reason thereof a legal fiction has been created. We are not oblivious of the legal principle that a legal fiction must be given full effect but it is equally well-settled that the scope and ambit of a legal fiction should be confined to the object and purport for which the same has been created.
21. The aforementioned Regulation, however, could be invoked only when the disciplinary proceedings had clearly been initiated prior to the respondent''s ceasing to be in service. The terminologies used therein are of seminal importance. Only when a disciplinary proceeding has been initiated against an officer of the bank despite his attaining the age of superannuation, can the disciplinary proceeding be allowed on the basis of the legal fiction created thereunder i.e. continue "as if he was in service". Thus, only when a valid departmental proceeding is initiated by reason of the legal fiction raised in terms of the said provision, the delinquent officer would be deemed to be in service although he has reached his age of superannuation. The departmental proceeding, it is trite law, is not initiated merely by issuance of a show-cause notice. It is initiated only when a charge-sheet is issued (see Union of India v. K.V. Jankiraman). This aspect of the matter has also been considered by this Court recently in Coal India Ltd. v. Saroj Kumar Mishra wherein it was held that date of application of mind on the allegations levelled against an officer by the competent authority as a result whereof a charge-sheet is issued would be the date on which the disciplinary proceedings are said to have been initiated and not prior thereto. Pendency of a preliminary enquiry, therefore, by itself cannot be a ground for invoking Clause 20 of the Regulations. Albeit in a different fact situation but involving a similar question of law in Coal India Ltd.12 this Court held: (SCC p. 631, paras 12-13).
12[13]. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the Vigilance Department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge-sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise.
13[14].The circular letters issued by the appellants put restrictions on a valuable right of an employee. They, therefore, are required to be construed strictly. So construed, there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard.
It was furthermore observed that: (SCC p. 632, para 18)
18[20]. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
(See also Union of India v. Sangram Keshari Nayak.)
22. The respondent, therefore, having been allowed to superannuate, only a proceeding, inter alia, for withholding of his pension under the Pension Regulations could have been initiated against the respondent. Discipline and Appeal Regulations were, thus not attracted. Consequently the charge-sheet, the enquiry report and the orders of punishment passed by the disciplinary authority and the appellate authority must be held to be illegal and without jurisdiction.
12. The UCO Bank filed a Review petition and in that petition also the Hon''ble Supreme Court in (2008)2 SCC (L&S) 263 (cited supra) observed as under:
13. Sub-regulation (1) of Regulation 20 of the 1979 Regulations, thus, deals with termination of service where the performance of an officer is unsatisfactory or inadequate or where there is a bona fide suspicion about his integrity or where his retention in the Bank''s service is prejudicial to interests of the disciplinary procedure Other sub-regulations of Regulation 20 provide for the mode and manner in which such termination may be effected as also his entitlement to prefer an appeal thereagainst and other benefits to which he would be otherwise entitled to.
14. Sub-regulation (2) of Regulation 20 of the 1979 Regulations places an embargo on an official to leave or discontinue his service of the Bank without giving a notice in writing. It prescribes a period of notice.
15. Sub-regulation (3) of Regulation 20, however, places an embargo on an officer to leave or discontinue or resign from service without the prior approval in writing of the competent authority and a 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. Clause (ii) of Sub-regulation (3) of Regulation 20 must be considered from that aspect of the matter. It raises a legal fiction. Such legal fiction has been raised only for the purpose of "this Regulation" and for no other, which would mean Regulation 20(1). The final orders which are required to be passed by the competent authority although indisputably would be in relation to the disciplinary proceedings but evidently it is for the purpose of accepting resignation or leaving or discontinuing of the service by the employee concerned or grant of approval thereof. Clause (ii) of Sub-regulation (3) of Regulation 20 in effect and substance acts as a proviso to Clause (i) thereof.
16. Clause (iii) of Sub-regulation (3) of Regulation 20 is an independent provision. It provides for continuation of the disciplinary proceedings. Such disciplinary proceedings indisputably for the purpose of applicability of Sub-regulation (3) must have been initiated in terms of the 1976 Regulations.
17. It is worth noticing the distinction between terminologies "proceeding pending" or "proceeding initiated". Clause (ii) of Sub-regulation (3) of Regulation 20 defines what would be pending viz. for the purpose of attracting Clause (i) thereof.
18. A disciplinary proceeding is initiated in terms of the 1976 Regulations, which are applicable only in a case where a proceeding is initiated for the purpose of taking disciplinary action against a delinquent officer for the purpose of imposing a punishment on him. Disciplinary proceedings, thus, are initiated only in terms of the 1976 Regulations and not in terms of the 1979 Regulations.
19. It is worth noticing that the 1979 Regulations would be attracted when no disciplinary proceeding is possible to be initiated. The 1976 Regulations, however, on the other hand, would be attracted when a disciplinary proceeding is initiated. Both operate in separate fields. We do not see any nexus between Regulations 20(1) and 20(2) of the 1979 Regulations and the 1976 Regulations.
20. The 1976 Regulations provide for the mode and manner in which a disciplinary proceeding is initiated. It expressly provides for service of charge-sheet. Service of charge-sheet is a necessary ingredient for initiation of disciplinary proceedings. A preliminary enquiry is not contemplated under the 1976 Regulations. If such an enquiry is held, the same is only for the purpose of arriving at a satisfaction on the part of the disciplinary authority to initiate a proceeding and not for any other purpose.
21. If it is found that a disciplinary proceeding can be and should be initiated, recourse to the 1976 Regulations would have to be taken, if not, the 1979 Regulations may be resorted to if the conditions precedent therefore are satisfied. It is only with a view to put an embargo on the officer to leave his job, Clause (ii) of Sub-regulation (3) of Regulation 20 of the 1979 Regulations has been made. It''s scope is limited.
22. We have noticed hereinbefore that each regulations operate in different fields. When a proceeding is initiated for the purpose of taking any disciplinary action on the ground of any misconduct which might have been committed by the officer concerned indisputably the procedures laid down in the 1976 Regulations are required to be resorted to.
23. The 1979 Regulations would be attracted only for the purpose of termination of service. Had the intention of the regulation-making authority been that the legal fiction created under Clause (ii) of Sub-regulation (3) of Regulation 20 would cover both Clauses (i) and (iii), the same should have been placed only after Clause (iii). In such an event, Clause (ii) of Sub-regulation (3) of Regulation 20 should have been differently worded. Some non obstante clause would have been provided for making an exception to the applicability of the 1976 Regulations when a legal fiction is created, although it is required to be taken to the logical conclusion (see East End Dwellings Co. Ltd. v. Finsbury Borough Counci), but the same would not mean that the effect thereof would be extended so as to transgress the scope and purport for which it is created.
28. All the regulations must be given a harmonious interpretation. A court of law should not presume a casus omissus but if there is any, it shall not supply the same. If two or more provisions of a statute appear to carry different meanings, a construction which would give effect to all of them should be preferred. (See Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd.)
29. In terms of the 1976 Regulations drawing up of a charge-sheet by the disciplinary authority is the first step for initiation of a disciplinary proceeding. Unless and until, therefore, a charge-sheet is drawn up, a disciplinary proceeding for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge-sheet, therefore, is the condition precedent for initiation of a disciplinary proceeding. We have noticed in para 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceeding despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings.
13. Now, it is an admitted fact that the Regulations of respondent Bank are similar and identical to that of the UCO Bank, which were dealt with by the Hon''ble Supreme Court in the aforesaid two decisions. The Regulations were also enclosed by the petitioner in the typed set and I have also gone through them.
14. I am satisfied that both the Regulations are identical in nature and therefore, the law laid down by the Hon''ble Supreme Court in the above said decisions would apply to the facts of this case in all force.
15. Therefore, I have no hesitation to hold that the respondent Bank has no jurisdiction to issue the order dt.27.08.2008 as well as the charge sheet dt.22.04.2009, having allowed the petitioner to retire from the services of the Bank on and from 31.08.2008 without issuing any charge sheet and thereby without issuing any disciplinary proceedings. Consequently, the petitioner is entitled to get all the terminal benefits and the respondents are directed to release all the retirement benefits to the petitioner within a period of six weeks from the date of receipt of a copy of this order. It is open to the Bank to proceed against the petitioner if it is permitted under the law.
16. In the result, writ petition is allowed in the above terms. No costs. Consequently, connected miscellaneous petitions are closed.
