Canara Bank vs D.R.P. Sudharam

The instant petition is directed against judgment dated 15.4.2008 rendered by the Division Bench of High Court of Judicature at Madras in Writ Appeal No.262 of 2008, by which, the judgment dated 5.10.2007 rendered by the learned Single Judge of the High Court in Writ Petition No.24153 of 2007, quashing the charge memo dated 28-6-2007 issued to the respondent herein on the ground that before service of the charge memo, he had attained the age of superannuation on 31.5.2007 is upheld.

The relevant facts emerging from the record of the case are as under -

At the relevant time, the respondent was serving as Assistant G.M. in the petitioner - Canara Bank. For the acts of misconduct, he was served with Memorandum dated 8.12.2004. On 5.7.2005, the respondent had sought voluntary retirement from service. It was noticed by the petitioner that one F.I.R. was filed against the respondent on 9.1.2006.

Therefore, the opinion of the Central Vigilance Commission was sought, as it was contemplated to initiate departmental proceedings against the respondent. The Central Vigilance Commission had advised the petitioner on 5.7.2005 to defer the departmental proceedings against the respondent till the conclusion of the case being investigated by CBI. The request made by the respondent to permit him to retire voluntarily was replied by the petitioner vide letter dated 13.7.2005 informing him that as disciplinary proceedings were contemplated, it was not possible to accept his request for voluntary retirement. Another letter dated 23.7.2005 was issued to the respondent regarding commission of some other irregularities. As per the case of the Petitioner, yet another Memorandum dated 12.6.2006 pointing out the irregularities committed by the respondent was served on him. The respondent was thereafter suspended from service by an order dated 23.11.2006. The petitioner served fourth Memorandum dated 30.12.2006 on the respondent pointing out certain irregularities committed by him. Meanwhile, the Central Vigilance Commission advised the petitioner to initiate departmental enquiry for imposition of major penalty. The respondent was to retire from service on 31.5.2007 and, therefore, by a letter dated 19.5.2007 he was informed that enquiry would continue after his retirement though he was permitted to retire from service w.e.f. 31.5.2007.

Thereafter, charge sheet dated 28.6.2007 was served upon him. On receipt of charge sheet, the respondent invoked extraordinary jurisdiction of the High Court by filing Writ Petition under Article 226 of the Constitution and challenged the same. The learned Single Judge allowed the Writ Petition on the ground that departmental enquiry could not have been initiated after retirement of the respondent from service. Feeling aggrieved, the petitioner preferred appeal. The Division Bench of the High Court has dismissed the appeal giving rise to the instant petition.

From the judgment of the learned Single Judge as well as that of the Division Bench, it is evident that for the purpose of coming to the conclusion that the charge memo issued upon the respondent on 28.6.2007 subsequent to his attaining the age of superannuation on 31.5.2007 was totally not permissible reliance is placed on the two reported decisions of this Court i.e. (1) UCO Bank and Anr v. Rajinder Lal Capoor (2007) 6 SCC 694 and (2) UCO Bank and Anr v. Rajinder Lal Capoor (2008) 5 SCC 257.

In the above-mentioned decisions, the respondent was working with the appellant UCO Bank. Prior to his retirement he was asked to show cause as to why action under the UCO Bank Officer Employees'' Services Regulations, 1979 should not be taken against him by notices dated 24.10.1996 and 30.10.1996. The respondent reached age of superannuation on 30.10.1996. A disciplinary proceeding was initiated against him. Immediately thereafter a charge-sheet was however issued on 13.11.1998. He was dismissed from service upon conclusion of departmental proceeding. A Writ Petition filed by him was allowed. The bank filed an appeal upon grant of special leave which was dismissed. Thereagainst the question considered by this Court in Civil Appeal was whether in absence of any charge sheet having been issued the disciplinary proceedings could be said to have been initiated in view of above referred two show cause notices. When the said question was raised in (2007) 6 SCC 694, the 1979 Regulations were not placed before the Court. They were considered in (2008) 5 SCC 257. On construction of Regulation 20, the Court held that in Regulation 20 (3) (ii) the words "for the purpose of this regulation" should be construed as proviso to 20 (3) (i) and inter alia held in paragraphs 23, 28 to 31 as under :

"23. The 1979 Regulations would be attracted only for the purpose of termination of service. Had the intention of the regulation-making authority been that the legal fiction created under Clause (ii) of sub-regulation (3) of Regulation 20 would cover both Clauses (i) and (iii), the same should have been placed only after Clause (iii). In such an event, Clause (ii) of sub-regulation (3) of Regulation 20 should have been differently worded. Some non obstante clause would have been provided for making an exception to the applicability of the 1976 Regulations when a legal fiction is created, although it is required to be taken to the logical conclusion (see East End Dwellings Co. Ltd. v. Finsbury Borough Council : 1952 AC 109), but the same would not mean that the effect thereof would be extended so as to transgress the scope and purport for which it is created".

"28. All the regulations must be given a harmonious interpretation. A court of law should not presume a casus omissus but if there is any, it shall not supply the same. If two or more provisions of a statute appear to carry different meanings, a construction which would give effect to all of them should be preferred. (See Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd.(2008) 4 SCC 755).

In terms of the 1976 Regulations drawing up of a charge-sheet by the disciplinary authority is the first step for initiation of a disciplinary proceeding. Unless and until, therefore, a charge- sheet is drawn up, a disciplinary proceeding for the purpose of the 1976 Regulations cannot be initiated. Drawing up of a charge-sheet, therefore, is the condition precedent for initiation of a disciplinary proceeding. We have noticed in para 15 of our judgment that ordinarily no disciplinary proceedings can be continued in absence of any rule after an employee reaches his age of superannuation. A rule which would enable the disciplinary authority to continue a disciplinary proceeding despite the officers reaching the age of superannuation must be a statutory rule. A fortiori it must be a rule applicable to disciplinary proceedings.

There cannot be any doubt whatsoever that the employer may take resort to a preliminary inquiry, but it will bear repetition to state that the same has a limited role to play. But, in absence of the statutory rules operating in the field, resorting to a preliminary enquiry would not by itself be enough to hold that a departmental proceeding has been initiated.

Initiation of a disciplinary proceeding may lead to an evil or civil consequence. Thus, in absence of clear words, the court must lean in favour of an interpretation which has been applied by this Court in the main judgment."

In view of the above mentioned conclusions appeal of the bank was dismissed.

It is not in dispute that Clause 20 (3) (i), (ii) and (iii) is pari materia with Canara Bank (officer''s) Service Regulations, 1979 with which this Court is concerned in the instant case. Therefore, the ratio laid down by this Court in the above mentioned decisions would be squarely applicable to the facts of this case, the only difference being that in those cases notices were served upon the respondent prior to his retirement, calling upon him to show cause as to why action should not be taken against him under the 1979 Regulations. Whereas, in this case, the respondent was suspended from service before he reached age of superannuation.

This Court has heard the learned Counsel for the parties.

Prima facie this Court is of the opinion that there is no reason to restrict the scope of Regulation 20 (3) (ii) to the cases covered only under Regulation 20 (3) (i) of the 1979 Regulation. This Court is of the opinion that while interpreting a legal provision, the structuring of the statute is of no relevance. The Court is only required to refer to the statute as a whole and ascertain the meaning thereof. If the literal reading of the statute represents no difficulty, Court should not apply any aids to interpretation.

Regulation 20 (3) (iii) is perfectly capable of being interpreted literally. Hence this Court is of the humble opinion that the recourse to interpretational aids as was done in (2008) 5 SCC 257 was not required. The expression for the purpose of this Regulation is not restricted to Regulation 20 (3) (i) and is applicable to the whole of Regulation 20. Whenever necessary references to specific clauses of the Regulation have been described as "Sub-Regulations", the expression for the purpose of this Regulation cannot be read as being confined to Sub-Regulation 20 (3) (i) because, the said provision specifically deals with a situation where disciplinary proceedings are already initiated. It was never intended by the framers of the 1979 Regulations that Regulation 20 (3) (iii) should be treated independent of other Sub-Regulations of 20 (3).

Therefore, this Court is of the opinion that the decision in UCO Bank and Anr. v. Rajinder Lal Capoor (2007) 6 SCC 694 and in UCO Bank and Anr. v. Rajinder Lal Capoor (2008) 5 SCC 257 needs reconsideration by a larger Bench and accordingly reference is made to larger Bench. Hence, the registry is directed to place the papers of this case before the Hon''ble the Chief Justice of India for passing appropriate orders.