Sri V.C. Chowdary vs The Indian Bank

P.D. Dinakaran, C.J.—The unsuccessful writ petitioner in writ petition No. 17177 of 2006 is the appellant herein. For the purpose of

convenience the parties are referred to with respect to their rank in the writ petition.

The petitioner is an employee of the 1st respondent-nationalized Bank. He applied for voluntary retirement on 22.06.2006 as per the Indian

Bank Employees Pension Regulation, 1995 (for short ''Pension Regulation'') which provided for a deeming acceptance of the voluntary retirement

scheme and consequential relieving from service of the 1st respondent-nationalized Bank after the expiry of three months of the date of receipt of

the voluntary retirement. But the Bank by proceedings dated 11.09.2006 rejected the request for voluntary retirement. The petitioner made a

further representation on 11.10.2006 again seeking voluntary retirement based on his earlier representation dated 22.06.2006 placing reliance on

Regulation 29. The 1st respondent-Bank again by proceedings dated 02.11.2006 rejected the request of the writ petitioner for voluntary

retirement. Thereafter, by proceedings dated 03.11.2006 the petitioner was posted from Chamarajapet Branch to Halasuru Branch as Senior

Branch Manager. Following the same, the petitioner was served with the articles of charges by proceedings dated 18.11.2006. Aggrieved by these

proceedings dated 11.09.2006, 02.11.2006, 03.11.2006 and 18.11.2006, the petitioner has filed the above writ petition praying for calling for the

entire records in the above proceedings and to quash them as illegal, void and unsustainable and for a direction to the 1st respondent to issue a

formal order of relief from the services of the Bank pursuant to letter dated 22.06.2006 and in terms of Regulation 29 of the Indian Bank

Employees Pension Regulation, 1995 and settlement of all terminal benefits.

The writ petition was resisted by the Bank on the ground that the writ petitioner is not entitled for the benefit of the voluntary retirement scheme

as disciplinary proceedings shall deem to be pending against him attracting Regulation 20(3)(ii) of the Indian Bank (Officers) Service Regulations,

1979 which reads as follows:

Termination of Service

XXX

(3) (i) An officer against whom disciplinary proceedings are pending shall not leave/discontinue or resign from his service in the bank without the

prior approval in writing of the competent authority and any notice of resignation given by such an officer before or during the disciplinary

proceedings shall not take effect unless it is accepted by the competent authority.

(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this regulation if he has been placed under

suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him or where any

charge-sheet has been issued against him and will be deemed to be pending until final orders are passed by the competent authority.

(ii) The officer against whom disciplinary proceedings have been initiated will cease to be in service on the date of superannuation but the

disciplinary proceedings will continue if he was in service until the proceedings are concluded and final order is passed in respect thereof The

concerned officer will not receive any pay and 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.

(emphasis supplied)

According to the 1st respondent-Bank even as on the date of the letter submitting the voluntary retirement on 2206.2006, disciplinary action

was already initiated against the writ petitioner as found from the very articles of charges dated 18.11.2006, where it is specifically mentioned that

the Assistant General Manager, Circle Office, Ahmedabad by proceedings dated 19.11.2005 initiated disciplinary action against the petitioner

which reads hereunder:

CO:AUD: 1011:2005-06 Dated: 19.11.2005

Sh. V.C. Chandhary

Senior Manager

Indian Bank

Prashanta Nagar

No. 11, Nagar Bhavi Main Road

Prashanta Nagar Circle

Bangalore - 560 079

Dear Sir,

Ref: Time-Barred DPN.

During your tenure as Branch Manager of Bharuch Branch you have allowed the following DPNs barred by limitation. The details of the tune-

barred DPNs are as under:

Name of Party Activity Limit Date of expiry

V.H. Amin Loan/Other 2.00 lacs 08.06.2005

S.M. Kachi Loan/Other 0.95 lacs 06.03.2005

Since the DP note is time barred and lost its enforceability and there is no other securities to fall back, recovery of our dues from the borrower has

become difficult.

We advise you to submit your explanation as to how the DPN got time barred and action taken by you for the renewal of DP Note.

Please submit your explanation within 10 days.

According to the 1st respondent-Bank the articles of charges dated 18.11.2006, has to date back to the proceedings dated 19.11.2005

referred to above as it is the basis for the disciplinary action. The learned Single Judge accepting the case of the 1st respondent-Bank dismissed

the writ petition.

We have heard learned Counsel for the petitioner and the learned Counsel for the respondents who have reiterated the respective stand made

before the learned Single Judge. With the risk of repetition, Regulation 20(3)(ii) is extracted as hereunder:

(ii) Disciplinary proceedings shall be deemed to be pending against any employee for the purpose of this regulation if he has been placed under

suspension or any notice has been issued to him to show cause why disciplinary proceedings shall not be instituted against him or where any

charge-sheet has been issued against him and will be deemed to be pending until final orders are passed by the competent authority.

Sri Sridhar, learned Counsel for the writ petitioner submitted that as on 22.06.2006 when the petitioner applied for voluntary retirement he was

not placed under suspension nor was he served with any notice to show cause why disciplinary proceedings should not be instituted against him

nor any charge-sheet had been issued against him. It is therefore contended that, Clause 20(3)(u) is not attracted in the instant case and the Bank

cannot reject the request of the petitioner for voluntary retirement.

7.2. On the other hand, it is contended that the petitioner is entitled for the acceptance of the voluntary retirement and consequential relieving order

on the expiry of 90 days from the date of receipt of the voluntary retirement dated 2206.2006.

7.3. In our considered opinion Regulation 29 would operate only if the petitioner is fully qualified under the Regulations for the benefit of voluntary

retirement scheme. Therefore, the core issue that arises for consideration is as to whether there is any disciplinary action deemed to have been

initiated against the petitioner as on 22.06.2006 attracting Regulation 29(3)(ii) referred to above. ft is true that Clause 22(3)(ii) refers to three

circumstances viz., (1) whether the employee is place under suspension (2) whether any show cause notice was issued why disciplinary

proceedings shall not be instituted against the employee (3) whether any charge-sheet has been issued against the employee.

The careful reading of Regulation 20(3)(ii) makes it clear that it is initiated to create a legal fiction which has to be read into Regulation 20(3)(ii)

deeming that disciplinary action is pending against the employee. ""Deemed"" means which is not actually in existence. In other words to deem means

to create a legal fiction. Legal fiction need not be necessarily exhibited or apparent. Therefore it may not be proper to contend to restrict the

portion of Regulation 20(3)(ii) only out of the three circumstances referred to above. What exactly has to be looked into or penetrated into is

whether on the date of the submission of the letter of voluntary retirement by the employee, the department has initiated any proceedings which

may ultimately culminate into a disciplinary proceedings. In the instant case, the very articles of charges refers to the proceedings dated 19.11.2005

served on the petitioner long back. The proceedings dated 19.11.2005 which is already referred to above speaks about certain irregularities, that

the petitioner had allowed two demand promissory notes barred by limitation. One with respect to a loan for a sum of Rs. 2,00,000/- expired on

08.06.2005 and the other with respect to a loan for a sum of Rs. 95,000/- expired on 06.03.2005. If that be so, we are unable to appreciate the

contention of the learned Counsel for the petitioner that Regulation 20(3)(ii) is not attracted in the instant case. Consequentially the petitioner is not

entitled for the benefit of the voluntary retirement scheme.

That apart, Regulation 20(3)(ii) contemplates that even to apply for such voluntary retirement scheme, the petitioner ought to have sought for a

prior approval in writing from the competent authority. If the petitioner applied for such prior approval, he would have been informed about the

action already pending against him. Therefore, the question of giving intimation to the petitioner on the expiry of 90 days as contended by the

petitioner placing reliance on the decision reported in the case of State of Haryana and Others Vs. S.K. Singhal, also is not sustainable in law

because in the instant case the request of the petitioner had been in our considered opinion, rightly rejected by proceedings dated 11.09.2006,

which fact was admitted by the petitioner himself in his representation dated 11.10.2006, the receipt of which on 19.09,2006 has been accepted

by the petitioner.

We are also convinced that there is no necessity to inform the petitioner as to the action already initiated against, him, as the proceedings dated

19.11.2005 had admittedly been served on the petitioner to which he had also replied.

The contention that the rejection of the letter of voluntary retirement was passed by an incompetent authority also will not survive in law

because he is basically disqualified under Regulation 20(3)(ii). Therefore, from any angle he is not qualified for the benefit of the voluntary

retirement scheme as he is disqualified under Regulation 20(3)(ii). Consequently, he is not entitled to place any reliance on Regulation 29.

Hence the writ appeal fails and it is dismissed with costs of Rs. 1,000/-.