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Judgment
Hon'Ble Garima Prashad, J.
Heard Sri A.M. Shukla, learned counsel for the petitioner, Sri Vijay Kumar Yadav, learned counsel holding brief of Sri Sharad Kumar Shukla, learned counsel for the respondent Bank.
The Writ Petition was instituted in the year 2000. The petitioner initially questioned the charge sheet and the disciplinary proceedings and sought a direction that he be treated as voluntarily retired from the service of the Bank of Baroda with effect from 27.02.1995 with consequential retiral benefits. During the pendency of the Writ Petition, the Deputy General Manager, acting as the disciplinary authority, dismissed him from service by order dated 20.12.2000. The amended pleadings on record also challenge that order. The petitioner died during the pendency of the proceedings and is represented by his legal representative.
The petitioner had entered the service of the Bank as a clerk on 16.05.1969 and was appointed as an officer on 07.01.1970. He was later placed in the Middle Management Grade Scale II. On 29.10.1993, the Indian Banks' Association entered into a settlement concerning the introduction of pension in lieu of the employer's contribution to provident fund. The Bank thereafter issued Circular No. CO:BR:86:58 dated 04.05.1994, circulating the salient features of the proposed pension regulations.
On 27.11.1994, the petitioner exercised his option for pension and addressed a letter to the competent authority seeking voluntary retirement and permission to take up commercial employment. The letter requested curtailment of the notice period and also asked that it be treated as notice for voluntary retirement. The petitioner later maintained that the three-month period had expired on 27.02.1995.
The Senior Manager of the Baskhari Branch first sought particulars of the proposed commercial employment by letter dated 07.12.1994. By a further letter dated 09.02.1995, he informed the petitioner that higher authorities had rejected the request for voluntary retirement and called upon him to report for duty with a medical fitness certificate. The petitioner reiterated his request on 01.03.1995 and through later representations. By letter dated 26.07.1995, the Bank again stated that the request had been rejected because the pension regulations had not come into operation.
The Bank of Baroda Employees Pension Regulations 1995 were notified in the Official Gazette on 29.09.1995. The Bank's circular dated 08.11.1995 stated that the salient features substantially followed those circulated on 04.05.1994 and that an option for pension already exercised need not be renewed. The petitioner again sought voluntary retirement by letter dated 15.11.1995. The Bank required him to resume duty and answer the queries concerning his absence. Its letter dated 20.03.1996 stated that the competent authority had decided to initiate disciplinary action and that his request for voluntary retirement could not be processed while such action remained pending.
In the meantime, the petitioner had joined Pravara Sahakari Bank Limited as Chief Executive Officer on 27.05.1995 and worked there until 30.09.1997. He later worked with the Nasik Merchants Cooperative Bank Limited from April 1998 until 17.08.1998. These engagements form a material part of the disciplinary charges against him.
A communication of the Indian Banks' Association dated 27.11.1997 permitted individual banks to consider specified cases afresh where an employee had sought voluntary retirement between 01.11.1993 and 29.09.1995 but the request had been declined because the Regulations were not then in force. The Bank consequently asked the petitioner by communications dated 24.10.1998 and 31.10.1998 to submit a fresh application under the 1995 Regulations.
The Directorate of Public Grievances also informed the petitioner by letter dated 07.01.1999 that the Bank had decided to consider voluntary retirement after obtaining a fresh application and requested him to submit one within fifteen days. The record states that this letter reached the petitioner at his changed address only in the first week of April 1999. On 11.04.1999, he submitted to the appointing authority a fresh application giving three months' notice under the 1995 Regulations. He expressly stated that the fresh application was without prejudice to his claim under the earlier notice.
A charge sheet was served upon the petitioner on 12.04.1999. It charged him with prolonged unauthorised absence, failure to comply with directions of his superior authorities, and acceptance of employment with other banks while he continued on the rolls of the respondent Bank. The petitioner replied and participated in the enquiry. The enquiry officer held the charges proved. After the enquiry report was supplied and further opportunity was granted, the disciplinary authority passed the order of dismissal dated 20.12.2000.
Learned counsel for the petitioner submits that the communication dated 09.02.1995 was signed by the Branch Manager, and no order of the appointing authority refusing the notice dated 27.11.1994 has been produced. The petitioner therefore claims retirement with effect from 27.02.1995 under Regulation 29. In the alternative, it is submitted that the fresh notice dated 11.04.1999 became effective after three months because the appointing authority did not refuse or withhold it within that period. Reliance is placed upon UCO Bank and others v. S.K. Shrivastava and others 2026 INSC 328.
Learned counsel for the respondent Bank submits that no enforceable pension scheme existed when the petitioner made the request dated 27.11.1994 and that the request was expressly rejected on 09.02.1995 and 26.07.1995. The fresh application dated 11.04.1999 in fact proves that the petitioner had not retired earlier. It is further submitted that disciplinary proceedings were already pending, that the petitioner had remained absent without authority and had taken employment with two other banking institutions, and that the proved misconduct justified dismissal. The Bank relies upon Bank of India v. O.P. Swarnakar (2003) 2 SCC 721, A.K. Bindal v. Union of India (2003) 5 SCC 163 and Punjab National Bank v. P.K. Mittal 1989 Supp (2) SCC 175.
The Bank also raises objections founded on the petitioner's failure to prefer a departmental appeal, the delay in challenging the dismissal order, and alleged suppression of the outside employment. Reliance is placed upon Thansingh Nathmal v. Superintendent of Taxes AIR 1964 SC 1419, Nivedita Sharma v. Cellular Operators Association of India (2011) 14 SCC 337, State of Madhya Pradesh v. Nandlal Jaiswal (1986) 4 SCC 566 and Chennai Metropolitan Water Supply and Sewerage Board v. T.T. Murali Babu (2014) 4 SCC 108.
The issues that arise for determination are: (i) whether the request dated 27.11.1994 resulted in the petitioner's retirement on 27.02.1995 under Regulation 29 of the 1995 Regulations; (ii) whether the fresh notice dated 11.04.1999 became effective on expiry of three months despite pendency of the disciplinary proceedings; and (iii) what is the legal effect of that retirement upon the subsequent enquiry, dismissal and claim for retiral benefits.
Regulation 1 provides that, except where the Regulations expressly state otherwise, they came into force on their publication in the Official Gazette. Regulation 29 governs pension on voluntary retirement. Its material part reads as follows:
“29.Pension on Voluntary Retirement.—(1) On or after the 1st day of November, 1993, at any time after an employee has completed twenty years of qualifying service he may, by giving notice of not less than three months in writing to the appointing authority, retire from service; … (2) The notice of voluntary retirement given under sub-regulation (1) shall require acceptance by the appointing authority: Provided that where the appointing authority does not refuse to grant the permission for retirement before the expiry of the period specified in the said notice, the retirement shall become effective from the date of expiry of the said period.”
In UCO Bank and others v. S.K. Shrivastava and others (supra), the Supreme Court considered a materially identical Regulation 29. It held that the notice becomes effective on expiry of the period stated in it unless the appointing authority passes and communicates a positive order of refusal or withholding within that period. The Court further held that, even where the service regulations permit an employee to be retained because disciplinary proceedings are pending, the existence of those proceedings does not by itself stop the operation of Regulation 29. The competent authority must act within the notice period. The Supreme Court further held that, once retirement has taken effect, subsequent disciplinary action and dismissal are legally untenable.
The request dated 27.11.1994 was made while the Bank had circulated only the proposed regulations. The circular itself stated that the special dispensation for voluntary retirement would become effective upon introduction of the Regulations. The Bank communicated its rejection on 09.02.1995 and again on 26.07.1995 because the Regulations had not come into operation. The later communication of the Indian Banks' Association dated 27.11.1997 did not treat every such earlier request as having matured automatically. It permitted specified cases to be considered afresh on a fresh application under the 1995 Regulations.
The petitioner accepted that course when he submitted the fresh notice dated 11.04.1999, although he preserved his earlier contention. The earlier request and the communications rejecting it therefore do not establish retirement on 27.02.1995. The first issue is therefore answered against the petitioner.
The fresh notice dated 11.04.1999 stands on a different footing. It was addressed to the appointing authority after the 1995 Regulations had come into force. It gave three months' notice and was submitted in response to the Bank's own request and the communication of the Directorate of Public Grievances. The counter affidavit admits receipt of the fresh application. It does not identify any order by which the competent authority refused or withheld that notice between 11.04.1999 and 11.07.1999.
The Bank relies on the letter dated 20.03.1996, which stated that the earlier request could not be processed pending disciplinary action. That letter preceded the fresh notice by more than three years and dealt with the request arising from the petitioner's letter dated 15.11.1995. It cannot serve as a refusal of a later notice which the Bank itself invited in October 1998. The charge sheet and the pendency of the enquiry were circumstances upon which the competent authority could have refused or withheld the fresh notice. Under Regulation 29 and the law declared in UCO Bank (supra), they did not dispense with the need for such an order within the notice period.
The decisions in Bank of India v. O.P. Swarnakar (supra) and A.K. Bindal v. Union of India (supra) concerned voluntary retirement schemes operating through offer and acceptance. They do not displace the express proviso to Regulation 29 under which retirement takes effect when the appointing authority does not refuse permission in time. The later and direct pronouncement in UCO Bank and others v. S.K. Shrivastava and others (supra) governs the present question.
The fresh notice dated 11.04.1999 therefore became effective by operation of Regulation 29 on 11.07.1999. The second issue is answered in favour of the petitioner.
The charge sheet was issued before 11.07.1999 and was not without jurisdiction when issued. The Bank could have retained the petitioner for the pending proceedings by a timely order under the governing regulations. It did not do so. Once the notice dated 11.04.1999 became effective, the relationship of employer and employee ceased. The continuation of the enquiry after 11.07.1999 and the order of dismissal dated 20.12.2000 cannot be sustained.
The Court is not reappreciating the findings of the enquiry or substituting a view on punishment. However, once the petitioner stood retired on 11.07.1999, the disciplinary authority could not thereafter impose a service penalty unless the applicable regulations expressly permitted it to do so.
Regulation 50 also does not sustain the dismissal. It governs commercial employment accepted by a pensioner within two years after retirement and prescribes its own procedure and consequences. The outside employment relied upon by the Bank preceded 11.07.1999. It formed part of the disciplinary charge but does not amount to an order under Regulation 50.
The objection concerning suppression is not borne out from the amended Writ Petition. The petitioner disclosed his appointment with Pravara Sahakari Bank Limited and the later employment with the Nasik Merchants Cooperative Bank Limited. The fresh application dated 11.04.1999 also stated that he was then looking after family businesses. Whether that conduct constituted misconduct is distinct from whether the material was concealed from the Court.
The availability of a departmental appeal does not require the Court to decline relief at this stage. The Writ Petition was already pending when the dismissal order was passed, and the challenge concerns the disciplinary authority's jurisdiction after statutory retirement. Relegating the petitioner's legal heir to a departmental appeal more than two decades later would not serve the interests of justice.
Although the challenge to the dismissal order was introduced belatedly, the dismissal itself occurred during the pendency of the Writ Petition, which had already questioned the disciplinary proceedings and sought voluntary retirement with consequential benefits. The amendment now stands incorporated, and both parties have filed pleadings on the dismissal. The Bank has shown no evidentiary prejudice in deciding the jurisdictional issue on the existing record. The claim for retiral benefits was present from the outset and is not a new claim raised by the amendment.
The petitioner is accordingly to be treated as having voluntarily retired with effect from 11.07.1999. The disciplinary proceedings insofar as they were continued after that date and the dismissal order dated 20.12.2000 are quashed. The claim for retirement with effect from 27.02.1995 is declined.
Since the petitioner is treated as having voluntarily retired under Regulation 29 with effect from 11.07.1999, his monetary entitlement shall be governed by the applicable voluntary-retirement scheme and the 1995 Pension Regulations. The quashing of the subsequent dismissal shall not, by itself, confer any right to salary or back wages for the period during which he did not render service to the Bank. The treatment of that period for the purposes of qualifying service and pension shall be determined strictly in accordance with the applicable scheme and Regulations.
The respondent Bank shall calculate and release the admissible retiral and pensionary benefits within three months from the date on which a certified copy of this judgment is served. The amount payable to the deceased petitioner until his death and the family pension thereafter shall be released to the person entitled under the applicable Regulations. Delayed amounts shall carry interest at the rate applicable under the governing pension rules.
The Writ Petition is allowed in part in the above terms. All pending applications stand disposed of. There shall be no order as to costs.