Girjesh Kumar Sinha vs Jharkhand Gramin Bank

The petitioner is aggrieved of the order of penalty of dismissal from service.Â

Initially the writ petition was filed challenging order dated 19.01.2016 and questioning legality of initiation of the departmental enquiry initiated

against the petitioner after his superannuation from service. The writ petition was filed on 12.05.2016, however, after 4 weeks’ time was

granted to the respondent â€" Bank vide order dated 20.05.2016, during pendency of the writ petition the petitioner was dismissed from service. Â

Plea urged by the petitioner is that the very initiation of departmental proceeding against him vide office order dated 19.01.2016 was illegal and

while so, the penalty order dated 12.04.2017 has been rendered unsustainable. Â

The petitioner who was appointed  under   the   respondent â€" Jharkhand  Gramin   Bank   on

17.03.1981 while in service was issued a Memorandum Calling For Explanation on 20.11.2015 on the allegation that during his service tenure he has

sanctioned and disbursed 34 KCC loans in favour of the borrowers who have been found non-existent. He has submitted his explanation on

07.12.2015, however, another Memorandum Calling For Explanation was issued to him on 12.01.2016 on the allegation that on further enquiry serious

irregularities in sanction and disbursal of KCC loans have been detected. This was replied by the petitioner on 19.01.2016 but before that another

Memorandum Calling For Explanation was issued to him on 18.01.2016. By another letter dated 19.01.2016 the petitioner was informed that under

Regulations 45(3) and 45(4) of Jharkhand Gramin Bank (Officers and Employees) Regulations, 2010 his normal retiral benefits such as leave

encashment and gratuity shall be withheld till completion of disciplinary proceedings; a disciplinary proceeding was contemplated by that time. Before

he superannuated from service on 31.01.2016 he has responded to the Memorandum Calling For Explanation through his letter dated 27.01.2016. Â

Regulation 45 of Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010 reads as under :

 “(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 orders thereon.Â

(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.Â

(3) The officer or employee against whom disciplinary proceeding has been imitated 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.Â

(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).Â

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.â€​Â

Regulation 45(3) provides that the officer or the 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 conducted and final order is

passed in respect thereof.Â

Regulation 20(3)(iii) of UCO Bank Officer Employees’ Service Regulations 1979 is pari-meteria to regulation 45(3) of the Gramin

Bank’s Regulations. It reads as under:

“20(3)(iii) The officer against whom disciplinary proceedings have been initiated will 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. The

officer concerned will not receive any pay and/or allowance after the date of superannuation. He will also not be entitled for the payment of

retirement benefits till the proceedings are completed and final order is passed thereon except his own contributions to CPF.

â€​                             Â

The Supreme Court in “UCO Bank Vs. Rajinder Lal Capoor†reported in (2007) 6 SCC 694 has interpreted regulation 20(3)(iii) of UCO

Bank’s Regulation. Referring to the decisions in “Union of India Vs. K.V. Jankiramanâ€​ reported in (1991) 4 SCC 109 and “Coal India Ltd.

and Others Vs. Saroj Kumar Mishra†reported in (2007) 9 SCC 625, the Supreme Court has held that a departmental proceeding is not initiated

merely by issuance of a show-cause notice rather, it is initiated only when a charge-sheet is issued; the Supreme Court has interfered with the penalty

of dismissal from service inflicted upon the employee â€" Rajinder Lal Capoor.  In the said case the employee superannuated from

service on 01.11.1996 and a show-cause notice was issued to him on 24.10.1996, however, a charge-sheet was issued to him on 13.11.1998. On the

eve of his retirement another show-cause notice was issued to him on the allegation of committing irregularities in loan sanction. It was held that

initiation of the departmental enquiry was wholly illegal and without jurisdiction. Â

In the present case even after issuing three Memorandum Calling For Explanation to the petitioner, before he superannuated from service a charge-

memo was not served upon him and it was issued only on 06.05.2016. In Coal India Ltd. the Supreme Court has held that a departmental

proceeding is ordinarily said to be initiated only when a charge-sheet is issued. On superannuation from service of an employee the employer-

employee relationship stands terminated and, therefore, a disciplinary proceeding distinct from a proceeding under the Pension Rules can be initiated

and continued against an employee only after a charge-memo is served upon the employee before he superannuates from service. In the fact-situation

disclosed in the present case the respondent â€" Bank could have resorted to Rule 45(1) after placing the petitioner under suspension under Rule 46,

but this option was not exercised by the Bank. Sub-rule(1) to Rule 45 provides that an officer or employee who is under suspension on a charge of

misconduct shall be deemed to be in service on attaining the age of superannuation for the specific purpose of continuation and conclusion of the

disciplinary proceedings. Mere a notice that departmental enquiry is under contemplation is not sufficient.Â

Only when a charge-memo is served upon the employee Rule 45 of the Jharkhand Gramin Bank (Officers and Employees) Service Regulations, 2010

can be resorted to by the employer to proceed against its employee in a departmental enquiry.Â

To conclude, in view of decision in UCO Bank it must be held that initiation of departmental proceeding against the petitioner pursuant to charge-

memo dated 06.05.2016 was illegal.Â

It is a well accepted proposition in law that when foundation is removed the super structure falls. The legal maxim sublato fundamento cadit opus

which is applied in judicial and quasi-judicial proceedings is equally applicable to administrative orders. Once it is found that initiation of departmental

proceeding against the petitioner by serving a charge-memo on 06.05.2016, that is, after his superannuation from service on 31.01.2016 was illegal, the

final order passed in the departmental proceeding renders unsustainable and accordingly, the order of dismissal from service passed on 12.04.2017 is

quashed. Â

The writ petition stands allowed. Post-retiral benefits of the petitioner which have been withheld under Regulation 45(4) shall be released to him

within a period of 4 weeks.Â