Parminder Singh v. Punjab And Sind Bank

$~9to 12

IN THE HIGH COURT OF DELHI AT NEW DELHI

* Date of decision: August 18, 2015 W.P.(C) 6383/2015, CMNo.l 1633/2015 PARMINDER SINGH + Petitioner Mr.Vivek Singh, Adv.

Through:

versus Respondent Mr.Jagat Arora, Adv. with Mr .Raj at Arora, Adv.

PUNJAB AND SIND BANK Through:

W.P.(C) 6384/2015, CM No.l 1635/2015 NAND LAL PHATNANI + Petitioner Mr.Vivek Singh, Adv.

Through:

versus ....Respondent Mr.Jagat Arora, Adv. with Mr.Raj at Arora, Adv.

PUNJAB AND SIND BANK Through:

W.P.(C) 6385/2015, CM No.l 1637/2015 PARAMJIT SINGH ANAND + Petitioner V Mr.Vivek Singh, Adv.

Through:

versus ....Respondent Mr.Jagat Arora, Adv. with Mr.Rajat Arora, Adv.

PUNJAB AND SIND BANK Through:

W.P.(C) 7298/2015, CM No. 13408/2015 HARVINDER PAL SINGH + Petitioner Mr.Vivek Singh, Adv.

Through:

versus ....Respondent Mr.Jagat Arora, Adv. with Mr.Rajat Arora, Adv.

PUNJAB SIND BANK 5.

Through:

CORAM:

HON'BLE MR. JUSTICE V. KAMESWAR RAO V. KAMESWAR RAO. J tOrall For orders, see W.P.(C) 6382/2015.

Wai ^rao ,J V. KAMES AUGUST 18,2015/akb By:AMULYA

* ^ u $~8 to 12

IN THE HIGH COURT OF DELHI AT NEW DELHI

decision: August 1R 7m < 6382/2015, CM No. 11631/2015 HARPREET SINGH MAKBKAR + Petitioner Through: Mr.Vivek Singh, Adv.'

Tvr versus PUNJAB AND SIND BANK Through: Mr.Jagat-Arora, Adv. with^.Rajlt PARMINDER SINGH + • Petitioner Through: Mr.Vivek Singh. Adv.

T^T -rv versus PUNJAB AND SIND BANK • Respondent with Mr.Raj at Through: Mr.Jagat Arora, Adv'.'

W.P.(C) 6384/2015, CM No 1 lOsSlt''''

NAND LAL PHATNANI + Petitioner Through: Mr.Vivek Singh, Adv'

versus PUNJAB AND SIND BANK - Respondent with Mr.Raj at Through: Mi-.Jagat Arora, Adv.

PAP 6385/2015, CM No. 11637/2015*^^ PARAMJIT SINGH ANAND + ••• Petitioner Through: Mr.Vivek Singh, Adv.

versus PUNJAB AND SIND BANIC Through: Mr.Jagat Arora, Adv.

W.P.(C) 7298/2015, CMNo 13408/2015 HARVINDER pal SINGH + • Petitioner Through: Mr.Vivek Singh, Adv.

versus J'y.P.(C) 6382/2015 & connected matters Page I of 20

PUNJAB & SIND BANIC Through: ^ Jagat Arora, Arora, Adv.

CORAM:

HON'BLE MR.

JUSTICE V. KAMESWAR RAO V.

1.

As these five writ petitions involve identical i issue with more or less similar facts, they are being disposed by this common order.

2. The issue which falls for consideration i m this batch of writ petitions is whefter, in view of third proviso to Regulation 48(1) of the Punjab and Sind Banl< (Employees') Pension Regulations, 1995 ('Pension ^ Regulations, 1995 in short), the respondent could have issued charge sheets to the petitioners on December 26, 2014 after their superannuation/fetirement in place four years before the respect of a cause of action/event which took date of charge sheet.

6384/2015 & 6385/2015 r 3.

are that the petitioners in W.P.{C) Nos. 6382/2015. The common facts were part of a Loan eominittee, recommended the enhancement of bank guarantee from Rs. which 10 Grores to Rs.

20 Crores in respect of one M/s. Zoom Developers Private Ltd. The petitioners in W.P.(C) Nos. 6383/2015 and 7298/2015, while working as Branch Manager/General Manager, on the recommendations of the Loan W.P.(C) 6382/20}5 & connec/ed mailers

i Committee, sanctioned enhancement of bank guarantee limit from Rs. IQ Crores to Rs. 20 Crores to the said M/s ■ Zoom Developers Private Ltd.

Zoom Developers Private Ltd.

4.

defaulted and It is noted that M/s.

lending became sticky leadi ng to litigation. The respondent bank iissued show cause notice(s) to all the petitioners V on September 28, 2013, asking for their comments on the commission of irregularities , committed by them while recommending/sanctioning the enhancement of bank Rs. 10 Crores to Rs. 20 Crores i guarantee from m respect of M/s. Zoom Developers Private Ltd. The petitioners except the petitioner in W.P.(C) 6383/2015, submitted: to the show their comments cause notice in the month of November/December, 2013.

It is noted that the petitioner in W.P.(C) 6383/2015 could not able to submit his comments as he was hot given the requisite documents he had sought for. Be that as i - it may, the petitioners were issued charge sheets on December 26, 2014 i in respect of credit extended to M/s. Zoom Developers Private Ltd. It is the common ground of all the petitioners in.reply to the charge sheet, apart from the merit of the charge, that the event complained about, happened more than four years before the date of charge sheet.

the departmental proceedings cannot be initiated after retirement. It iIS their case that despite pointing the illegality. fV.P.fC) 6382/20J5 & connected matters

'7 the respondent bank did not issued to them, withdraw the charge sheets i instead, appointed Enquiry Officer i in all the When these writ cases.

petitions were listed befo re this Court on July 7, 2015 except in W.P.(C) 7298/2015, this Court noting that the Enquiry Officer has fixed the date of proceeding as July 8, 2015, directed the Enquiry Officer V to defer the proceedings after the next date of hearing i i.e. August 18,2015.

5. Pleadings are complete.

6.

by Mr. Vivek Singh, learned counsel The only submission made •m. ,K. .ukj„ ^ guarantee from Rs. 10 Crores to Rs. 20 Crores i Developers Private Ltd.

m respect of M/s. Zoom on February 6, 2009, which i date/event beyond IS a four years of the date of issuance of charge sheets to the petitioners on'

December 26, 2014, departmental proceedings could have been initiated no against them. In this regard, he would rely upon the judgments of the cases reported as 1996 (9) SCC395, Stale ofU.P. Supreme Court in the and Anr. Vs. Shri Krish Pandey and 2013 (6) SCC SIS, Anant R. Rulkarni na rs. Y.P. Education Society and Ors. to contend that the Rul es governing the service conditions of the petitioners determining factors as to whether a are ^■P.(C) 6382/20J5 cfe connected matters

r departmental enquiry can be held against the petitioners. who stood retired after reaching the age of superannuation or by taking voluntary retirement. Mr. Vivek Singh, learned counsel for During the course of the submission, the petitioners has drawn my attention to a judgment of this Court i - m the case reported as 2014 (140) DRJ162 A marjit Singh Vs. Punjab and Sind Bank, wherein, this Court has held that, when the charge sheet has been issued after the retirement, there cannot be valid departmental proceedings on cause notice as there is no rule in the the basis of only issuance of show bank that departmental proceedings are deemed to have commenced on issuance .of show cause notice and when a charge sheet has been issued after retirement of the employee. I have been informed that the judgment in the case under challenge before the Division Bench of Amarjit Singh (supra) is in LPA No. 774/2014.

Since, he has not urged this point, it may not be r necessary for me to go into that i issue. The issue raised is whether the limitation of four years would be applicable to the facts.

7. Mr. Jagat Arora, learned counsel appearing for the respondent bank would submit that the present petitions are premature inasmuch as the charged officer must await the enquiry outcome of the proceedings in the He would rely on the judgment of the before challenging the same;

W.P.(C) 6382/20J5 d connected matters

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

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 of tlie submissions made;

"43. Withholding authority may, by order in withdrawal of pension The or competent writing, withhold or withdraw a W.P.(C) 6382/2015 & connected matters

V pension or a part thereof, whether permanently or, for a specified period, if the pension i IS convicted of a serious crime or criminal breach of tract or forgery or acting fraudulerttl or IS found guilty of grave misconduct Provided that wfiere a part of pension is withheld or withdrawn, the amount of such pension shall not be reduced below the minimum pension per mensem payable under these regulations.

XXX XXX XXX

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

Appeal) Regulations, 1982 XXX XXX XXX

48. Recovery of Pecuniary loss caused to the Bank (1) The competent authority may withhold or withdraw a pension or a part thereof whether permanently or fo specified period.

r a and order re covery from pension-of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service. Provided that th e Board shall be consulted before any W.P.(C) 6382/2015 & connected matters

XlL 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 were commenced in the same manner as if the employee had continued in service,

(2) No departmental proceedings, fnot 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 employee disciplinary proceedings so instituted shall be in accordance With the procedure applicable to disciplinary proceedings in relation to the employee during the period of his service. (3) Where the Competent Authority orders .

recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding -third of the pension admissible one the date of retirement of employee;

on Provided that where a part of pension is withheld or the amount of pension drawn by a pensioner shall withdrawn.

not be less than the minimum pension payable under these regulations ".

9.

A perusal of Regulations 43 and 45, no doubt, would reveal that they are related to withholding or withdrawal of pension for a grave misconduct, In other words, the departmental proceedings can be initiated for the purpose W.P.(C) 6382/2015 & connected matters

of withholding or withdrawal of pension if the pensioners are convicted for a serious or,me or criminal breach of tmst or forgery or acting fraudulently or is found guilty of grave misconduct.

At the same time, Rdgulation 48 also contemplates withholding or withdrawal of pension, 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 grave misconduct or negligence or criminal breach of trust 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 'no departmental proceedings for any event which took place more than four years before such institution'.

Regulations 43 and 45 have to be read in W.P.fC) 6382/20J5 & connected matters

conjunction with Regulation 48.

Regulation 48 is not specific for recovery of pecuniary loss as urged by Mr. Arora. co counsel for the respondent. It also contemplates withholding or withdrawal of pension or a part thereof, whether I note, the charge sheet permanently or for a specified period.

issued to the petitioners .is in terms of Regulation 43 read with Regulations 45 and 48 of the Pension Regulations lOos u . regulations, 199... hence, the submission of Mr. Arora iIS not sustainable on the face of the provisions under which, the charge sheets have been issued.

10. Insofar as the reliance placed by Mi* • Arora, on the judgment of the Supreme Court in the case of State of West Bengal Vs. Pronab Chakrahorty (supra) i IS concerned, the same relates to a charge sheet issued to the respondent in that case on July 31, 2007 whereas the respondent retired on attaining the age of superannuationon 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 proceedings initiated against him, could not be allowed to proceed further, the High Court accepted the prayer. In the order impugned before the Supreme Court dated December r 22, 2010, the High Court interpreted the Rule 10(1) of the West Bengal Services (Death -cum-Retirement Benefits) W P.(C) 6382/20J5 & connected matters

Rules, 1971, which is reproduced hereunder, that departmental proceedings being conducted against an individual employee could proceed further after 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 to withhold pension in certain cases. - (1) The Governor reserves to himself the right of withholding or withdrawing a pension or any part of it whether 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 caused to Government, if the pensioner is found in a departmental or judicial proceeding to have been guilty of grave misconduct or 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 service, whether before his retirement or during his re-e mployment, shall after the final retirement of the office, be deemed to be a proceeding under this article and shall be continued and concluded by the authority by which it was commenced in the same manner as if the officer had continued iin service;

W.P.(C) 6382/2015 <5: connected matters

1^ (b) Such departmental proceedings, if not instituted while the office M>as in service, whether before his retirement or during his re-employment- (i) shall not be instituted Governor;

save with the sanction of the (ii) shall not be in respect of any event which took place than four years) 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 of dismissal from service could be made in relation to the officer during his service;

(c) no such judicial proceeding, f not 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 four years) 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, of the view that Rule 10(1) stipulates two kinds of punishments. was firstly, W.P.(C) 6382/2015 & connected matters

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, of the 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 can continue after the date of superannuation. An employee be proceeded against, after the date of his retirement, can on account of ... grave misconduct or negligence ... ". Therefore, even in the absence of any pecuniary loss caused to the Government, it is open to the employer to continue the departmental proceedings after the employee has retired from service. Obviously, if such grave misconduct or negligence, entails pecuniary loss to the Government, the loss can also be ordered to be recovered from the concerned employee. It was therefore not right for the High Court, while interpreting Rule 10(1) of the 1971 Rules to conclude, that proceedings after the date of superannuation could continue, only when the charges entailed pecuniary W.P.(C) 6382/2015 & connected matters

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 or for a specified period and the right of ordering the recovery from a pension of the whole part of any pecuniary loss caused to Government, if the pensioner is found in departmental or judicial 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, if not instituted while the officer was on duty either before retirement or during reemploymentW.P.(C) 6382/2015 & connected matters

r i) shall not be i instituted save with the sanction of the Governor, ii) shall be in respect of an event which took place than four years before the institution not more of such proceedings, and Hi) shall be conducted by such authority and V in such place or places as the Governor may direct and i in accordance with the procedure applicable to proceedings on which an order of dismissal from service m.ay be made, b) judicial proceedings, if not instituted while the offi. leer was on or during re-employment, shall have been instituted in accordance with sub-clause (ii) of clause (a) and duty either before retirement c) the Public Si oervice Commission, U.P., shall be consulted before final orders passed. Explanation - For the are purpose of this article - a) departmental proceedings shall be deemed to have been f'- instituted when the charges framed against the pensioner or if the officer has been placed under are issued to him.

suspension from an earlier date, on such date; and i) in the case of criminal 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 of civil proceedings, on the date on which the plaint is presented or, as the case may be, an application is made, to a civil court.

IV.P.(C) 6382/20J5 & connected matters

n Note:- As , soon « proceedings of the nature referred to in this article are iinstituted the authority which i , institutes such Proceedtngs shall without delay intimate the fact to the Audit ujjicer concerned."

12. In the case of Shri Krishna Pand.

ey (supra), the departmental enquiiy was initiated against the respondent for embezzlement of Rs.2,47,779/-^ on attaining the age of superannuation on March 31, 1987, he was allowed to retire from service.

FIR was lodged and investigation was in progress. When no pension was paid to him, he challenged the same before the High Court. The High Court allowed the petition, directing the petitioner to pay pension. The Supreme Court, on an interpretation of the Regulation 35i(A) of Civil Service Regulation, in para 6, has held as under: "6. It would thus be seen that proceedings required to be instituted against a delinquent officer before are retirement. There is no specific provision allowing the ojjicer to continue in service nor any order passed to allow him to continue re-employment till the on enquiry is completed, without allowing him to retire from service, Equally, there is no provision that the proceedings be initiated as disciplinary measure and the action initiated earlier would remain unabated after retirement. If Rule 351- A is to be operative in respect of pending proceedings, W.P.(C) 6382/20J5 & connected matters

by necessary implication, prior sanction of the Governor to continue the proceedings against him i.IS required. On the indicate that if the officer other hand, the rule also would caused pecuniary 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 cause for 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 of four years from the date on which the event of misconduct m etc. had 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 event of embezzlement which caused pecuniary loss to the State took place prior to four years from the date of his 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 the provisions of Rule 351-A of the Rules. This order does not preclude proceeding with the investigation into the offence and taking action thereon W.P.(C) 6382/20J5 & connected matters

Hence, it is suffice to conclude that 3'''^ Proviso would come into play 13.

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. case.

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 14.

Kunisetty Satyanarayana (supra) is concerned, the Suprenie Court in the primarily concerned with facts wherein the challenge was said case 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 amount to any adverse order which affects the rights of any party, unless the V,'.P.(C) 6382/2015 & conmcled matters

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 are not established. It is well settled that a writ lies when a party infringes the right Iof other party. A mere show cause notice or the charge 'sheet does not infringe the right of anyone.

15.

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 of Regulation 48( 1) of Pension Regulations, 1995. 16.

In view of the above discussion, the present writ petitions are allowed. The charge sheet(s) dated December 26, 2014 issued to the petitioners are IV.P.fCJ 6382/2015 & connected matters

« quashed.

17.

No costs.

C^M Nos.l 1631/2015,11633/2015,11635/2015.11637/2015I& 13408/2015 In view of the order passed in the writ petitions, the applications stand disposed of as infructuous.

'M 0^ e V. KAMESW^ RAO, J AUGUST 18, 2015/akb i V \ f;

k W.P.(C) 6382/20] 5 <Sc connected matters Page 20 6f20 j /