AI Structured Summary
Not yet generated for this judgment
Judgment
Madhuresh Prasad, J.:
Heard the learned advocates representing the writ petitioner/appellant and the respondent Bank.
The writ petitioner while working as a Senior Manager (MMG Grade-III) was due to retire on 31.10.2024. Two days prior thereto on 28.10.2024 a letter was written to him whereby and whereunder he was communicated regarding alleged lapses in respect of five loan accounts sanctioned by him. A charge memo in respect of the same allegation was served on him on 04.02.2025. The same led to issuance of an order of punishment dated 13.03.2025. The punishment awarded was reduction of basic pay by 1 (one) stage lower in the time scale of pay to which he belonged to as Officer Scale-III, with retention of FPP, PQP, Stagnation increment, if any, on and inclusive the date of his superannuation.
The learned advocate representing the writ petitioner submits that there was no provision in the service regulation which may be invoked for issuing a charge memo on 04.02.2025, post retirement of the writ petitioner. He submits that the disciplinary proceeding founded on a charge memo dated 04.02.2025, after his superannuation on 31.10.2024 was, therefore, without jurisdiction. The Hon’ble Single Judge according to the learned advocate for the appellant has glossed over this aspect of the matter.
It is submitted that the entire action founded on the charge memo is dehors the regulation governing disciplinary action in respect of the officers of the Bank. Under these circumstances the punishment founded on such an action is unsustainable under the Bangiya Gramin Vikas Bank (Officers and Employees) Service Regulations, 2010. Read with amendments from time to time (for short ‘2010 Regulation’).
The learned advocate for the respondent Bank has drawn attention of the Court towards the letter dated 28.10.2024. It is submitted that since the alleged irregularity committed by the writ petitioner was discovered few days prior to his retirement, and since issuance of a charge memo involves a procedure which was likely to take some time, authorities communicated the alleged irregularities to the writ petitioner prior to his superannuation on 28.10.2024. The proceedings, therefore, were initiated by the letter dated 28.10.2024, prior to his superannuation. The consequence of the proceeding is also a very minor punishment involving reduction of basic pay by one stage, lower in the time scale of pay to which he belonged. The petitioner had an alternative remedy of appeal available under the 2010 Regulation. The Hon’ble Single Judge, therefore, rightly declined to interfere with the departmental proceeding and punishment.
We have considered the rival submissions and perused the record.
The 2010 Regulation prescribes the procedure for conducting departmental proceedings against officers of the Bank. The same contemplates issuance of a charge memo in case of a proposed penalty. The procedure for imposition of penalties is specified in Regulation 39 of the 2010 Regulation. The Regulation contemplates that a minor penalty as specified therein shall not be imposed unless the officer is given a notice in writing. The notice is required to contain the grounds on which it is proposed to impose the penalties. The notice must also afford a reasonable opportunity for making a statement of defense and the statement of defense submitted is required to be taken into consideration.
The 2010 Regulation further prescribes that a major penalty shall not be imposed except by an order signed by the competent authority and that no such order shall be passed without a charge or charges being framed in writing and giving to the officer. The 2010 Regulation further contemplates conduct of an enquiry giving reasonable opportunity to defend the charge/s. Regulation 40 of the 2010 Regulation specifies the circumstances under which the procedure for imposition of penalties in Regulation 39 can be waived/dispensed with. Regulation 45 (3) and (4) are relied upon by the learned advocate for bank to sustain the action taken against the writ petitioner. We, therefore, consider it apposite to reproduce Regulation 45 of the 2010 Regulation which reads:
“45. Disciplinary proceedings after retirement. –
(1)An officer or employee who is under suspension on a charge of misconduct and who attains the age of superannuation, shall be deemed to be in service even after the age of superannuation for the specific purpose of continuation and conclusion of the disciplinary proceedings and issue of final order thereon.
(2)The officer or employee who is under suspension shall not be eligible for any subsistence allowance for the period beyond the date of superannuation.
(3)The officer or employee against whom disciplinary proceeding has been initiated shall cease to be in service on the date of superannuation but the disciplinary proceeding shall continue as if he was in service until the proceedings are concluded and final order is passed in respect thereof.
(4)The officer or employee against whom disciplinary proceedings has been initiated shall not receive any pay and/or allowances after the date of superannuation and also not be entitled for the payment of retirement benefits till the proceeding is completed and final order is passed thereon except his own contribution to Contributory Provident Fund (CPF).
Explanation: For the purposes of this regulation, the normal retirement benefits such as encashment of privilege leave and Gratuity may be withheld till the completion of the disciplinary proceeding and passing of final order by the Competent Authority and the release of benefits shall be as per the final order of the Competent Authority.”
A plain reading of the regulation/s reveals that the same contemplates issuance of a notice in writing communicating the grounds for the proposed minor penalty. And affording a reasonable opportunity for making statement of defense in writing and consideration of such statement.
For major penalties the Regulation contemplates a charge memo being served. In the present case neither notice as contemplated in the proviso to Regulation 39 (1)(b) was served on the petitioner, nor a charge memo as contemplated in the proviso to Regulation 39 (2)(b) of the Regulation. The learned Advocate for the bank has also not pointed out any order to show that the petitioner was placed under suspension prior to his retirement.
A plain reading of Regulation 45 relied upon by the learned Advocate for the bank reveals that the same contemplates continuation and conclusion of the disciplinary proceeding only if the officer/employee is under suspension on a charge of misconduct. The regulation, therefore, contemplates a suspension and issuance of charge memo prior to the date of superannuation for continuance of the proceedings post retirement.
In the present case the submission of the learned advocate for the Bank that proceeding was initiated prior to his superannuation is made with reference to the letter dated 28.10.2024. The letter relied upon is neither a charge memo, nor notice for minor penalty as contemplated in the 2010 Regulation. The date of the charge memo is specifically mentioned as 04.02.2025, in the order of punishment dated 13.03.2025. The charge memo, therefore, was issued about four months after the petitioner retired. No suspension order was brought to our notice of a date prior to the petitioner’s superannuation.
Under these circumstances, keeping in background the provisions contained in the 2010 Regulations, there was no justification for proceeding against the petitioner, by charge memo dated 04.02.2025, even if the consequences were minor. Once the regulation specifies the manner in which a proceeding can be conducted against a person likely to retire, the authorities of the Bank are bound by such procedure and no discretion is left in the authorities to proceed dehors the regulation.
It is by now a settled law that when the Statute/Rule/Regulation lays down a procedure for doing a particular thing, the authority vested with power is bound by such procedure. Our conclusion in this regard is fortified by decision of the Apex Court in the case of CIC v. State of Manipur, reported in (2011) 15 SCC 1. The judgment reads:
“40.It is well known that when a procedure is laid down statutorily and there is no challenge to the said statutory procedure the Court should not, in the name of interpretation, lay down a procedure which is contrary to the express statutory provision. It is a time-honoured principle as early as from the decision in Taylor v. Taylor [(1875) 1 Ch D 426 (CA)] that where a statute provides for something to be done in a particular manner it can be done in that manner alone and all other modes of performance are necessarily forbidden. This principle has been followed by the Judicial Committee of the Privy Council in Nazir Ahmad v. Emperor [(1935-36) 63 IA 372 : AIR 1936 PC 253 (2)] and also by this Court in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527 : (1961) 2 Cri LJ 705] , AIR at para 9 and also in State of U.P. v. Singhara Singh [AIR 1964 SC 358 : (1964) 1 Cri LJ 263 (2)] reported in AIR at para 8.”
In view of our consideration above, the entire action founded on the letter dated 28.10.2024 and charge memo dated 04.02.2025, was without jurisdiction.
The order of the Hon’ble Single Judge dismissing the writ petition also took note of existence of alternative remedy of appeal available to the writ petitioner.
We would observe that the law in this regard is well settled, exhaustion of alternative remedy before invocation of writ jurisdiction under Article 226 of the Constitution of India is a rule of discretion. The jurisdiction of the Writ Court is not completely barred but discretion is required to be exercised having regard to the facts and circumstances of each case.
The Hon’ble Supreme Court of India in the case of Magadh Sugar & Energy Ltd. v. State of Bihar, reported in (2022) 16 SCC 428 has stated the law as regards exercise of writ jurisdiction when there is an alternative remedy. The Apex Court held that existence of an alternative remedy does not by itself Bar the High Court from exercising its jurisdiction in certain contingencies. The law was stated by the Apex Court in paragraph 20 of the judgment in the following terms:
"20.While a High Court would normally not exercise its writ jurisdiction under Article 226 of the Constitution if an effective and efficacious alternative remedy is available, the existence of an alternative remedy does not by itself bar the High Court from exercising its jurisdiction in certain contingencies. This principle has been crystallised by this Court in Whirlpool Corpn. v. Registrar of Trade Marks [Whirlpool Corpn. v. Registrar of Trade Marks, (1998) 8 SCC 1] and Harbanslal Sahnia v. Indian Oil Corpn. Ltd. [Harbanslal Sahnia v. Indian Oil Corpn. Ltd., (2003) 2 SCC 107] Recently, in Radha Krishan Industries v. State of H.P. [Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771] a two-Judge Bench of this Court of which one of us was a part of (D.Y. Chandrachud, J.) has summarised the principles governing the exercise of writ jurisdiction by the High Court in the presence of an alternative remedy. This Court has observed : (Radha Krishan Industries case [Radha Krishan Industries v. State of H.P., (2021) 6 SCC 771] , SCC p. 795, para 27)
“27.The principles of law which emerge are that:
27.1.The power under Article 226 of the Constitution to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well.
27.2.The High Court has the discretion not to entertain a writ petition. One of the restrictions placed on the power of the High Court is where an effective alternative remedy is available to the aggrieved person.
27.3.Exceptions to the rule of alternative remedy arise where : (a) the writ petition has been filed for the enforcement of a fundamental right protected by Part III of the Constitution; (b) there has been a violation of the principles of natural justice; (c) the order or proceedings are wholly without jurisdiction; or (d) the vires of a legislation is challenged.
27.4.An alternative remedy by itself does not divest the High Court of its powers under Article 226 of the Constitution in an appropriate case though ordinarily, a writ petition should not be entertained when an efficacious alternative remedy is provided by law.
27.5.When a right is created by a statute, which itself prescribes the remedy or procedure for enforcing the right or liability, resort must be had to that particular statutory remedy before invoking the discretionary remedy under Article 226 of the Constitution. This rule of exhaustion of statutory remedies is a rule of policy, convenience and discretion.
27.6.In cases where there are disputed questions of fact, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interfered with.” (emphasis supplied)”
The law by now is well settled. A person is bound by the norms of discipline and subject to being proceeded against for misconduct only during the course of his employment. Till such time a person continues in employment he is covered by the rules/ regulations governing his conduct; and for taking action in cases of misconduct. Once the petitioner retired the master servant relationship was severed. Post retirement an employer normally, cannot proceed against a person, unless there is a specific provision clothing the authority with such discretion retaining jurisdiction to proceed against an employed employee.
The Hon’ble Supreme Court of India, in the case of Chairman-cum-Managing Director, Mahanadi Coalfields Limited vs. Rabindranath Choubey, reported in (2020) 18 SCC 71 stated the law in this regard with reference to earlier decisions of the Hon’ble Apex Court, that “… relevant rules governing the service conditions of an employee are the determining factor as to whether or not the domestic enquiry can be held against an employee who stood retired after reaching the age of superannuation”.
In the present case no such provision in any rule/ regulation is brought to our notice, whereby and whereunder the respondents could exercise such discretion/ jurisdiction to proceed against the writ petitioner, post retirement. The charge memo dated 04.02.2025 and the entire action founded thereupon, therefore, was legally, having no legal force or validity, and is a nullity in the eyes of law.
The petitioner’s post retiral dues have been adversely affected by such a charge memo and punishment order which was dehors the regulation and without jurisdiction, in such facts and circumstances of the present case, we are of the view that mere existence of an alternative remedy by itself did not divest the writ Court of its powers under Article 226 of the Constitution of India.
We, therefore, set aside the order of the Hon’ble Single Judge and allow the writ petition. The charge memo dated 04.02.2025 and the order of punishment dated 13.03.2025 are hereby quashed.
The writ petition is allowed in these terms.
The petitioner would be entitled to consequential benefits as a result of quashing of the charge memo and the punishment order.
Pending application stands disposed of.
Urgent certified copy of this judgment, if applied for, be supplied to the parties, expeditiously after complying with all necessary legal formalities.
I agree.