State Bank of India & Ors. v. Kamal Kishore

STATE BANK OF INDIA & ORS. v. KAMAL KISHORE PRASAD (Civil Appeal No. 175 of 2023) JANUARY 09, 2023 [KRISHNA MURARI AND BELA M. TRIVEDI, JJ.] Service Law – SBIOSR, 1992 – Rules 19(1) & 19(3) – Dismissal from Service – Respondent was dismissed from se rvice as per order dated 11.08.1999 by the Appointing Author ity – Writ petition by the respondent – Single Bench of the Hi gh Court by order dated 26.03.2003 set aside the order of the d ismissal – Division Bench of the High Court stayed the operati on of order passed by the Single Bench, however, finally the LPA was dismissed on 22.04.2010 – Meanwhile, respondent attained the age of superannuation on 30.11.2009 – SLP filed by the app ellant-bank was allowed with the direction to the Appointing Autho rity to take appropriate decision – Pursuant thereto, the Appoin ting Authority issued a show-cause notice to the respondent – Afte r granting personal hearing, the penalty of dismissal from ser vice from

11.08.1999 was imposed – Respondent again approache d High Court, which allowed the petition and set aside the order of dismissal – On appeal, held: Order dated 26.03.2003 of Single Bench setting aside the order of dismissal passed by the Appointi ng Authority having been stayed by the Division Bench, the respo ndent could not be deemed to have continued in service, and also when he had attained the age of superannuation on 30.11.2009 – Thereafter, the order of Division Bench dated 22.04.2010 passed in the LPA was set aside by Supreme Court while allowing the appeal fi led by the Appellant-Bank vide the order dated 25.11.2013, again it cou ld not be said that the respondent was continued in se rvice, till he attained the age of superannuation – Order of Appointing Authority dismissing the respondent from service after granti ng opportunity of hearing to the respondent was in consonance with t he direction given by Supreme Court and could not be said to be arbitrary illeg al or in violation of Rule 19(3) of the said Rules – Impugned order of the High Court setting aside the order of dismissal se t aside. Allowing the appeal, the Court HELD: 1. The disciplinary proceedings against the respondent were already initiated and had stood con cluded, culminating into dismissal from service as per the o rder dated

11.08.1999 passed by the Appointing Authority. The said order was challenged by the respondent by filing the Writ Petition, which came to be allowed by the Single Bench on 26. 03.2003 whereby the order of dismissal was set aside, nonet heless the Appellant-Bank having preferred the LPA No. 378 of 2003, t he Division Bench had stayed the operation and implementation of the said order passed by the Single Bench on 09.05. 2003. The said LPA came to be dismissed on 22.04.2010, in the meantim e on 30.11.2009, the respondent attained the age of superannuation i.e., during the time, when the operation of the order of Single Bench was stayed. Thus, the order of Single Bench setting aside the order of dismissal passed by the Appointing Authori ty having been stayed by the Division Bench, the respondent could not be deemed to have continued in service, and also when he had attained the age of superannuation on 30.11.2009. T hereafter, the order of Division Bench dated 22.04.2010 passed in the LPA 378 of 2003 having been set aside by this Court while allow ing the appeal filed by the Appellant-Bank vide the ord er dated

25.11.2013, again it could not be said that the res pondent was continued in service, till he attained the age of supera nnuation. [Para 11][899-D-G]

¶2It was only pursuant to the direction given by this Court vide the order dated 25.11.2013, the Appointing Autho rity was expected to hear the respondent and pass appropriat e order. This Court had kept all the contentions of all the part ies open. Hence the Appointing Authority after issuing show-cause not ice and granting opportunity of hearing to the respondent had passed the order imposing the penalty of “Dismissal from Service” w .e.f.

11.08.1999, i.e., from the date when the first order of d ismissal was passed by the Appointing Authority. Since all the cont entions were kept open by this Court while allowing the appeal fi led by the Appellant-Bank, as such no affirmative action was expect ed from the Appellant-Bank, as sought to be submitted by the learned counsel for the respondent. The said order of Appoi nting Authority dismissing the respondent from service after gr anting opportunity of hearing to the respondent was in consonance with the direction given by this Court and could not be said to be arbitrary illegal or in violation of Rule 19(3) of the said Rules. The impugned order of the High Court setting aside the said order of dismissal being under misconception of fac ts and law deserves to be quashed and set aside. [Para 13][900-C-F] CIVIL APPELLATE JURISDICTION : Civil Appeal No.175 of 2023. From the Judgment and Order dated 01.02.2018 of the High Court of Judicature at Patna in LPA No.2035 of 2016. Balbir Singh, ASG, Sanjay Kapur, Ms. Megha Karnwal, Arjun Bhatia, Lalit Rajput, Ms. Anu Sura, Ms. Akshata Joshi, Advs. for the Appellants. Kripa Shankar Prasad, Ms. Alisha Shaili, Ainul Ansari, Advs. for the Respondent. The Judgment of the Court was delivered by

BELA M. TRIVEDI, J.

¶1Leave granted.

¶2The present appeal is directed against the judgment and order dated 01.02.2018 passed by the High Court of Judicature at Patna in LPA No. 2035 of 2016, whereby the High Court has dismissed the appeal filed by the Appellant-Bank and confirmed the order passed by the Single Bench.

¶3The short facts giving rise to the present petition ar e that the respondent while posted as a Branch Manager at Marufganj Branc h and at various other branches, was found to have committed various lapses, in respect of which he was suspended on 14.06.1993 in terms of Rule 50A(i)(a) of SBIOSR, 1992. On the departmental proceedin gs having been conducted against him, the Inquiry Authority had submitted its report on 09.03.1998, whereby some of the allegations were found to be proved and some were found to be partly proved. The Dis ciplinary Authority agreed with some of the findings recorded by the Inqui ry Authority and called upon the respondent to make his submi ssions on the same. However thereafter the matter was sent to the Appointing Authority, which imposed the penalty of “Dismissal from S ervice” as per the order dated 11.08.1999.

¶4The respondent being aggrieved by the said order had filed a Writ Petition being no. 2739 of 2000 before the High Court which came to be allowed by the Single Bench vide order dated 26.03.2003. T he Appellant-Bank aggrieved by the said order had filed an LPA being no. 378 of 2003. On 09.05.2003, the Division Bench stay ed the implementation of the order dated 26.03.2003 passed by the Single Bench, however finally dismissed the said LPA vide order dated 22.04.2010. In the meantime, the respondent attained the age of superannuati on on

30.11.2009. The Appellant-Bank having filed SLP (C) No. 16541 of 2010 challenging the order dated 22.04.2010 passed by the Division Bench, PRASAD the same came to be allowed by this Court on 25.11.2013. While allowing the SLP, this Court observed as under: “10. We have heard learned counsel for the parties to the lis.

¶11The Writ Court while deciding the writ petition filed by t he respondent against the orders passed by the Appointing Authority had followed the dicta of this court wherein it is said that t he person who hears the matter should necessarily pass an order. The Division Bench of the High Court in its judgment has referred to the subsequent decisions of this Court. In our opinion, we need not have to refer to those decisions. It is now a well settled principle that the person who hears the matter requires to pass an order.

¶12Since, that is the view of the Learned Single Judge, we are of the opinion that such a view cannot be taken exception to by us. However, the Division Bench while rejecting the Letters P atent Appeal filed by the appellant-bank has made certain observations which in our opinion, would not arise in the matter of this nature. Therefore, we cannot sustain the judgment and order passed by the Division Bench of the High Court.

¶13In the result, we allow this appeal and set aside the judgment and order passed by the Division Bench of the High Court in Letters Patent Appeal No.378 of 2003. Since we are told that the delinquent officer has already retired from service on attaini ng the age of superannuation, we now direct the Appointing Authority to take appropriate decision as expeditious as possible, at any rate within two months from the receipt of copy of this order.

¶14All the contentions of all the parties are kept open. Order ed accordingly.”

¶5In view of the above order passed by this Court, the Appointing Authority issued a show-cause notice to the respondent on 06.02.2014, to which the respondent submitted his response on 10.02.2014. The Appointing Authority after granting personal hearing to the respondent on 14.02.2014, passed an order on 17.02.2014 imposi ng upon the respondent the penalty of “Dismissal from Service” in ter ms of Rule 67(J) of SBISOR w.e.f. 11.08.1999 and treating his period of suspension as not on duty.

¶6Being aggrieved by the said order passed by the Appointing Authority, the respondent filed Departmental appeal before the Appellate Authority on 24.02.2014, which came to be dismissed on 09.08.2014. The respondent therefore again approached the High Court by way of filing CWJC No. 10192 of 2014. The Single Bench of the High Court vide the order dated 22.08.2016 allowed the said petition, and quashed and set aside the order of dismissal passed by the Appellant-B ank and directed the Appellant-Bank to pay all the consequential benefit s i.e., arrears of salary and retiral benefits within 3 mont hs thereof. The aggrieved appellant-bank filed LPA being no. 2035 of 2016 on 17.10.2016, which came to be dismissed by the Division Bench vide the impugned order dated 01.02.2018.

¶7The learned ASG Mr. Balbir Singh for the Appellant-Bank vehemently submitted that the High Court had committed gross error in confirming the order passed by the Single Bench, and in misinterpreting the Rule 19(1) and 19(3) of the SBIOSR, 1992. According to him, this Court in the first round of litigation had allowed the appeal filed by the Appellant-Bank and set aside the order passed by the Division Bench , and while observing that the person who hears the matter requires to pass an order, had directed the Appointing Authority to take appropriate decision within 2 months, keeping all the contentions of the parties open. The appointing authority, therefore had issued a show-cause notice to the respondent and after giving him an opportunity of hearing had passed the order of dismissal, which was wrongly set aside by the Single Bench and by the Division Bench.

¶8However, the learned counsel Mr. Kripa Shankar P rasad appearing for the respondent submitted that an affirmative action was expected to be taken by the Appellant-Bank in view of the order passed by the Supreme Court on 25.11.2013, as the respondent had already attained the age of superannuation pending the proceeding before the High Court. He further submitted in the said order the Supre me Court had set aside the order of Division Bench, however had agreed with the view expressed by the Single Bench that as per the settled legal principle, the person who hears the matter is required to pass an order. According to him, the Supreme Court had granted the liberty only to the extent of directing the Appointing Authority to take appropriate action in accordance with law as the respondent had attained the age of superannuation. Under the circumstances, the Appointing Authority was required to take steps either to extend the service of the respondent in terms of Rule 19(1), or to continue the disciplinary proceedings, even after the superannuation of the respondent under Rule 19(3) of the Rules, however the Appellant-Bank did not take recourse to any of the said rules. He further submitted that the discretion to continue with the disciplinary proceedings had to be exercised as an affirmative action by taking a conscious dec ision, which the Appointing Authority of the Appellant-Bank had failed to take, and on the contrary passed the order of dismissal with retrosp ective effect which was not legally permissible.

¶9Since much reliance has been placed by the learned counse l appearing for the respondent on Rule 19(1) and 19(3) of the SBIOSR Rules, the same are reproduced for the sake of convenience. “19.(1) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completio n of thirty years’ service or thirty years’ pensionable service if he is a member of the Pension Fund, whichever occurs first. Provided that the competent authority may, at its discretion, extend the period of service of an officer who has attained the age of fifty-eight years or bas completed thirty years’ service or thirty years’ pensionable service as the case may be, should such extension be deemed desirable in the interest of the Bank, so however, that the service rendered by the concerned o fficer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension. Provided further that an officer who had joined the service of the Bank either as an officer or otherwise on or after July, 19, 1969 and attained the age of 58 years shall not be granted any further extension in service. Provided further that an officer may, at the discretion of the Executive Committee, be retired from the Bank’s service after he has attained 50 years of age or has completed 25 years’ service or 25 years’ pensionable service as the case may be, by gi ving him three months’ notice in writing or pay in lieu thereof. Provided further that an officer who has completed 20 years’ service or 20 years’ pensionable service, as the case may be, may be permitted by the competent authority to retire from the Bank’s service, subject to his giving three months’ notice or pay in lieu thereof unless this requirement is wholly or partly waived by it.

19.(2) .......... …… ….. .......

19.(3) In case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank’s service by I the operation of, or by virtue of, any of the said rules or the provisions of these rules, the disciplinary proceedings m’ay, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said rules as if the officer continues to be in service, so however, that he shall be deemed to be in service only for the purp ose of the continuance and conclusion of such proceedings. Explanation: An officer will retire on the last day. of the month in which he completes the stipulated service or age of retirement.”

¶10On the bare perusal of the said Rules it clearly transpires that as per Rule 19(1) of the Rules, an officer could retire from the se rvice of the bank on attaining the age of 58 years or upon the completion of 30 years’ service or 30 years’ of pensionable service if he is a member of the Pension Fund whichever occurs first, subject to the provisos mentioned therein. As per the Rule 19(3), in case the disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank’s service by operation of, or by virtue of any of the rules, the disciplinary proceedings may at the discretion of Managing Director be continued and concluded, as if the officer had continued to be in service. However, the officer in that case shall be deemed to be in service only for the purpose of the continuanc e and conclusion of such proceedings.

¶11So far as the facts of the present case are concerned, the disciplinary proceedings against the respondent were already i nitiated and had stood concluded, culminating into dismissal from service as per the order dated 11.08.1999 passed by the Appointing Authority. The said order was challenged by the respondent by filing the Writ Petition, which came to be allowed by the Single Bench on 26.03.2003 whereby the order of dismissal was set aside, nonetheless the Appellant-Bank having preferred the LPA No. 378 of 2003, the Division Bench had stayed the operation and implementation of the said order passed by the S ingle Bench on 09.05.2003. The said LPA came to be dismissed on 22.04.2010, in the meantime on 30.11.2009, the respondent attained the age of superannuation i.e., during the time, when the operation of the order of Single Bench was stayed. Thus, the order of Single Bench setting aside the order of dismissal passed by the Appointing Authority having been stayed by the Division Bench, the respondent could not be deem ed to have continued in service, and also when he had attained the age of superannuation on 30.11.2009. Thereafter, the order of Division Bench dated 22.04.2010 passed in the LPA 378 of 2003 having been set aside by this Court while allowing the appeal filed by the Appellant-Bank vide the order dated 25.11.2013, again it could not be said that the respondent was continued in service, till he attained the age of superannuation.

¶12The reliance placed by the learned counsel for the respondent on Rule 19(3) of the Rules is also thoroughly misplaced in as much as Rule 19(3) contemplates a situation, when the disciplinary proceedings against a bank officer, have already been initiated, and are pending when the officer ceases to be in the Bank’s service, and in that case the Managing Director in his discretion may continue and conclude t he disciplinary proceedings against the officer as if the officer continues to be in service. However, in the instant case, there was no que stion of Managing Director exercising such discretion under Rule 19(3) as the disciplinary proceedings initiated against the respondent ha d already culminated into his dismissal as per the order dated 11.08.1999 passed by the Appointing Authority. Though the said order of dismissal was set aside by the Single Bench, the order of Single Bench had remaine d stayed pending the LPA filed by the Bank; and though the LP A was dismissed by the Division Bench, the said order in LPA was set aside by this Court, observing that the person who hears the matter has to decide it.

¶13It was only pursuant to the direction given by this Court vide the order dated 25.11.2013, the Appointing Authority was expected to hear the respondent and pass appropriate order. This Court had kept all the contentions of all the parties open. Hence the Appointing Authority after issuing show-cause notice and granting opportunity of hearing to the respondent had passed the order imposing the penalty of “Dismissal from Service” w.e.f. 11.08.1999, i.e., from the date when the first order of dismissal was passed by the Appointing Authority. S ince all the contentions were kept open by this Court while allowing the appeal filed by the Appellant-Bank, as such no affirmative action was expected from the Appellant-Bank, as sought to be submitted by the learned counsel for the respondent. The said order of Appointing Authority dismissing the respondent from service after granting opportunity of hearing to the respondent was in consonance with the direction given by this Court and could not be said to be arbitrary illegal or in violation of Rule 19(3) of the said Rules. The impugned order of the High Court setting aside the said order of dismissal being under misconception of facts and law deserves to be quashed and set aside.

¶14In that view of the matter the impugned order passed by the Division Bench confirming the order passed by the Single Ben ch, is hereby accordingly set aside.

¶15The appeal stands allowed. Ankit Gyan Appeal allowed. (Assisted by : Bhavyata Kapoor and Rahul Rathi, LCRAs)