Nago Rao Temburkar vs Central Bank Of India

Proceedings of this matter have been taken-up through video conferencing.

The petitioner herein calls in question legality, validity and correctness of the impugned order dated 20-4-2009 by which the petitioner’s

application for payment of compassionate allowance and pension has been rejected. The petitioner has also sought writ for payment of pension and

gratuity.

A departmental proceeding was instituted against the petitioner, who was the then Assistant Manager of Central Bank of India and thereafter, the

petitioner was inflicted with penalty of dismissal from service by the disciplinary authority by order dated 24-2-1998 and his appeal was also dismissed

by order dated 22-6-1998 and writ petition against that order has also been dismissed by this Court by order dated 7-11-2005 passed in

W.P.No.4749/1999. Thereafter, the petitioner made an application for grant of compassionate allowance as per Regulation 31 of the Central Bank of

India (Employees’) Pension Regulations, 1995 (for short, ‘the Regulations of 1995’) and also claimed pension. By the impugned order, the

petitioner has been communicated that he is not entitled for pension as well as also not entitled for compassionate allowance in view of the gross

misconduct of embezzlement of cash of depositors / borrowers and he is also not entitled for pension in view of Regulation 4(j) of the Central Bank of

India Officer Employees’ (Discipline and Appeal) Regulations, 1976. It is the case of the petitioner that his case for compassionate allowance has

not been considered strictly in the light of Regulation 31 of the Regulations of 1995 and relevant factors laid down by the Supreme Court in the matter

of Mahinder Dutt Sharma v. Union of India and others (2014) 11 SCC 684 have also not been considered and simply in one line it has been dismissed.

It has also been pleaded that only 20% of the gratuity amount has been given and rest of the amount has not been given.

Return has been filed opposing the writ petition stating inter alia that the petitioner has been dismissed from service by the disciplinary authority and

the order of the disciplinary authority has been affirmed by the appellate authority as well as by this Court in the writ petition preferred by the

petitioner and looking to the grave misconduct of embezzlement of cash of depositors / borrowers, the petitioner is not entitled for compassionate

allowance in terms of Regulation 31 of the Regulations of 1995, as such, he is not entitled for any claim.

Mr. Ashok Patil, learned counsel appearing for the petitioner, would submit that though the petitioner was dismissed from service, yet, he is entitled

for pension in terms of Regulation 31 of the Regulations of 1995 which has not been considered by the respondent Bank in its proper perspective and

his application has been rejected on the ground that he was found guilty of grave misconduct of embezzlement of cash of depositors / borrowers which

runs contrary to the decision of the Supreme Court in Mahinder Dutt Sharma (supra). He would further submit that though the petitioner is entitled for

full amount of gratuity, yet, only 20% of the gratuity amount has been given to him and rest of the amount has been withheld for no reasons and

therefore he is entitled for remaining / balance amount of gratuity and as such, appropriate writ / writ(s) / direction be issued to the respondent Bank.

Mr. Anuroop Panda, learned counsel appearing for the respondents, would submit that the petitioner’s case for grant of compassionate

allowance has rightly been rejected by the Bank looking to the grave misconduct of embezzlement of cash of depositors / borrowers. He would further

submit that the petitioner has never raised any issue of gratuity before the competent authority, otherwise, it could have been considered and

appropriate order could have been passed qua the amount of gratuity which the petitioner is claiming, as such, the writ petition deserves to be

dismissed.

I have heard learned counsel for the parties and considered their rival submissions made herein-above and also went through the record with utmost

circumspection.

It is not in dispute that the petitioner was dismissed from service by order dated 24-2-1998 finding the charges proved against him against which he

preferred an appeal which has also been dismissed and order of the disciplinary authority affirmed by the appellate authority has been confirmed by

this Court in the writ petition filed by the petitioner.

It is the case of the petitioner that despite having been dismissed from service, yet, he is entitled for compassionate allowance as per Regulation 31

of the Regulations of 1995 which states as under: -

“31. Compassionate Allowance -

An employee, who is dismissed or removed or terminated from service, shall forfeit his pension:

Provided that the authority higher than the authority competent to dismiss or remove or terminate him from service may, if

(i) such dismissal, removal, or termination is on or after the 1st day of November, 1993, and

(ii) the case is deserving of special consideration, sanction a compassionate allowance not exceeding two-thirds of the pension which would have been

admissible to him on the basis of the qualifying service rendered up to to the date of his dismissal, removal or termination.

The Compassionate Allowance sanctioned under the proviso to sub-regulation (1) shall not be less than the amount of minimum pension payable

under Regulation 36 of these regulations.â€​

A careful perusal of the aforesaid provision would show that despite dismissal or removal from service and forfeiture of pension, the authority

higher than the authority competent to dismiss or remove or terminate the concerned bank officer from service may, if such dismissal, removal, or

termination is on or after the 1st day of November, 1993 and if the case is deserving of special consideration,

that authority can sanction compassionate allowance not exceeding two-thirds of the pension which would have been admissible to him on the basis of

the qualifying service rendered up to the date of his dismissal, removal or termination. This provision contained in Regulation 31 of the

Regulations of 1995 is pari materia to Rule 41 of the Central Civil Services (Pension) Rules, 1972.

Rule 41 of the Central Civil Services (Pension) Rules, 1972 which is pari materia to the instant Regulation i.e. Regulation 31 of the Regulations of

1995 came up for consideration before the Supreme Court in Mahinder Dutt Sharma (supra) in which their Lordships of the Supreme Court laid down

the consideration of the factors underlying therein in paragraph 13 as under: -

“13. We are of the considered view that the adjudication by the courts below with reference to Rule 41 of the Pension Rules, 1972, is clearly

misdirected. The Rule itself contemplates payment of compassionate allowance to an employee who has been dismissed or removed from service.

Under the punishment rules, the above punishments are of the severest magnitude. These punishments can be inflicted only for an act of extreme

wrongdoing. It is on account of such wrongdoing, that the employee concerned has already been subjected to the severest form of punishment.

Sometimes even for being incorrigible. Despite that, the rule contemplates sanction of a compassionate allowance of up to two-thirds of the pension or

gratuity (or both), which would have been drawn by the punished employee if he had retired on compassionate pension. The entire consideration up to

the present juncture, by the courts below, is directly or indirectly aimed at determining, whether the delinquency committed by the appellant was

sufficient and appropriate for the infliction of the punishment of dismissal from service. This determination is relevant for examining the veracity of the

punishment order itself. That, however, is not the scope of the exercise contemplated in the present consideration. Insofar as the determination of the

admissibility of the benefits contemplated under Rule 41 of the Pension Rules, 1972 is concerned, the same has to be by accepting that the delinquency

committed by the punished employee was of a magnitude which is sufficient for the imposition of the most severe punishments. As in the present

case, unauthorized and willful absence of the appellant for a period of 320 days has resulted in the passing of the order of dismissal from service. The

punishment inflicted on the appellant has been found to be legitimate and genuine as also commensurate to the delinquency of the appellant. The issue

now is the evaluation of claim of the punished employee under Rule 41 of the Pension Rules, 1972.â€​

Thereafter, their Lordships also considered, if the case is deserving of special consideration and observed as under in paragraph 14: -

“14. In our considered view, the determination of a claim based under Rule 41 of the Pension Rules, 1972 will necessarily have to be sieved

through an evaluation based on a series of distinct considerations, some of which are illustratively being expressed hereunder:-

14.1 (i) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of moral

turpitude? An act of moral turpitude, is an act which has an inherent quality of baseness, vileness or depravity with respect to a concerned

person’s duty towards another, or to the society in general. In criminal law, the phrase is used generally to describe a conduct which is contrary to

community standards of justice, honesty and good morals. Any debauched, degenerate or evil behaviour would fall in this classification.

14.2 (ii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act of dishonesty

towards his employer? Such an action of dishonesty would emerge from a behaviour which is untrustworthy, deceitful and insincere, resulting in

prejudice to the interest of the employer. This could emerge from an unscrupulous, untrustworthy and crooked behaviour, which aims at cheating the

employer. Such an act may or may not be aimed at personal gains. It may be aimed at benefiting a third party to the prejudice of the employer.

14.3 (iii) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, an act designed for

personal gains from the employer? This would involve acts of corruption, fraud or personal profiteering, through impermissible means by misusing the

responsibility bestowed in an employee by an employer. And would include, acts of double-dealing or racketeering, or the like. Such an act may or

may not be aimed at causing loss to the employer. The benefit of the delinquent could be at the peril and prejudice of a third party.

14.4 (iv) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, aimed at deliberately

harming a third party interest? Situations hereunder would emerge out of acts of disservice causing damage, loss, prejudice or even anguish to third

parties, on account of misuse of the employee’s authority to control, regulate or administer activities of third parties. Actions of dealing with similar

issues differently, or in an iniquitous manner, by adopting double standards or by foul play, would fall in this category.

14.5 (v) Was the act of the delinquent, which resulted in the infliction of the punishment of dismissal or removal from service, otherwise unacceptable,

for the conferment of the benefits flowing out of Rule 41 of the Pension Rules, 1972? Illustratively, any action which is considered as depraved,

perverted, wicked, treacherous or the like, as would disentitle an employee for such compassionate consideration.â€​

Reverting to the facts of the present case in the light of the decision of their Lordships of the Supreme Court in Mahinder Dutt Sharma (supra) in

which their Lordships have delineated the parameters and the factors to be considered while considering the claim of the concerned employee officer,

who has been dismissed or removed from service, for compassionate allowance, it is quite vivid that in the instant case, the impugned order would

show that the competent authority has only considered the fact that the petitioner has been subjected to punishment of severest magnitude and thereby

rejected his case for compassionate allowance, whereas it ought to have considered the relevant factors in determining the entitlement of the

employee of the benefit of compassionate allowance under the rule, but it has not considered and it has been rejected summarily without application of

mind. Merely because the petitioner has been subjected to severe punishment upon the departmental proceeding, his request for compassionate

allowance cannot be rejected that too by non-speaking and unreasoned order. Accordingly, the impugned order dated 20-4-2009 to this extent is set

aside. The matter is remitted to the respondent Bank to consider the case of the petitioner for compassionate allowance in accordance with law

keeping in view the principle of law laid down by the Supreme Court in Mahinder Dutt Sharma (supra) by a reasoned and speaking order within 45

days from the date of receipt of a copy of this order. The petitioner is at liberty to submit additional representation.

Now, the question of payment of gratuity comes in. It is the case of the petitioner that 20% of the gratuity amount has been disbursed to him and

rest of the amount has not been disbursed to which he is fully entitled, whereas it is the case of the respondent Bank that the petitioner has never

approached the respondent Bank for grant of remaining amount of gratuity and if proper application is made, it will be considered in accordance with

law. Payment of gratuity to the officer of the Bank is governed by Regulation 46 of the Central Bank of India (Officers’) Service Regulations,

1979 (for short, ‘the Regulations of 1979’) which states as under: -

(1) Every officer, shall be eligible for gratuity on:-

a) Retirement

b) Death

c) Disablement rendering him unfit for further service as certified by a Medical Officer approved by the bank.

d) Resignation after completing ten years of continuous service; or

e) Termination of service in any other way except by way of punishment after completion of 10 years of service.

(2) The amount of Gratuity payable to an officer shall be one month’s pay for every completed year of service, subject to a maximum of 15

months pay.

Provided that where an officer has completed more than 30 years of service, he shall be eligible by way of gratuity for an additional amount at the rate

of one half of a month’s pay for each completed year of service beyond 30 years.

Provided further that pay for the purpose of Gratuity for an officer who ceases to be in service during the period 1.7.1993 to 31.10.1994 shall be with

regard to scale of pay as specified in sub-regulation (1) of Regulation 4.

Provided also that pay for the purpose of Gratuity of an officer who ceased to be in service during the period 1.4.1998 to 31.10.1999 shall be with

regard to scale of pay as specified in sub-regulation (2) of Regulation 4.â€​

Since the issue of gratuity has not been decided by the respondent Bank, the matter is left open and it is for the petitioner to claim the amount of

gratuity either in accordance with the provisions contained in the Regulations of 1979 or under the provisions of the Payment of Gratuity Act, 1972. If

any application for payment of gratuity is made by the petitioner either before the Bank or before the controlling authority under the Payment of

Gratuity Act, 1972, same will be considered and decided within two months from the date of receipt of application by reasoned and speaking order, as

the case is old one and the petitioner has been terminated from the service of the Bank on 24-2-1998. However, the question of pension has not been

pressed by learned counsel for the petitioner and in that view of the matter, the issue of pension is not being considered by this Court.

The writ petition is allowed in part to the extent indicated herein-above. No order as to cost(s).