IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 8528 of 2001 For Approval and Signature:
HONOURABLE MR.JUSTICE J.B.PARDIWALA ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of the judgment ?
Whether this case involves a substantial question of law as
4 to the interpretation of the constitution of India, 1950 or any order made thereunder ?
5 Whether it is to be circulated to the civil judge ?
========================================================= NATVARLAL L BHATTI - Petitioner(s) Versus STATE BANK OF INDIA & 1 - Respondent(s) ========================================================= Appearance :
MS. KRISHNA DESAI for MR MEHUL H RATHOD for Petitioner(s) : 1, MR PR NANAVATI for Respondent(s) : 1 - 2.
========================================================= CORAM : HONOURABLE MR.JUSTICE J.B.PARDIWALA Date : 01/08/2012 CAV JUDGMENT
1. This petition under Article-226 of the Constitution of India, has been preferred by the petitioner- a discharged employee of respondent no.1 – State Bank of India praying for the following reliefs :
“6.
(A) The Hon’ble Court be pleased to issue a writ of mandamus, or any other appropriate writ, order or direction, quashing and setting aside the impugned decision dated 8.10.1999, at Annexure- A to the petition, of the respondent No.1 authority, and the respondent authority may be directed to sanction the proposal of pension to the petitioner;
(AA) The Hon’ble Court may be pleased to issue a writ of mandamus and/or any other appropriate writ, order or direction in the nature of mandamus quashing and setting aside the order of Disciplinary Authority dated 10.11.1997 (Annexure-B) and the respondent authorities may be directed to approve the proposal of the pension with all consequential benefits.
(B) Pending admission, hearing and final disposal of this petition, Your Lordships be pleased to direct the respondent authorities to pay provisional pension to the petitioner till the proposal of pension to the petitioner is sanctioned finally by the respondent authorities;
(C) Your Lordships be pleased to pass such other orders as may be deemed just and proper in the circumstances of the case.
(D) The cost of this petition be awarded.”
2. Facts relevant for the purpose of deciding this petition may be summarized as under :
2.1) Petitioner was appointed as Farrsh-cum-Messenger in the respondent Bank on probation for a period of six months on 1/12/1971 after undergoing the regular selection procedure. Petitioner was confirmed in service vide order dated 1/6/1972. On 1/2/1991 the petitioner working as a Record Keeper was transferred from Deodar to Radhanpur of the respondent Bank. Vide letter dated 6/4/1991 the petitioner was again transferred from Radhanpur to Deodar Branch. Record reveals that vide order dated 30/4/1992 the petitioner was placed Under Suspension pending departmental inquiry into the alleged acts of willful misconduct. The petitioner was served with a charge-sheet dated 3/7/1992 vide letter No.DPS/92- 93/15. On conclusion of the Departmental Inquiry the Disciplinary Authority agreed with the finding recorded by the Inquiry Officer who held that the charges were established against the petitioner. Finally the Disciplinary Authority passed an order discharging the petitioner from service as per Clause-521(e) of the Award –popularly known as Sastry Award. The order passed by the Disciplinary Authority dated 10/11/1997 is reproduced herein below :
“I observe that Shri N.L.Bhatti, Record Keeper presently under suspension was chargesheeted for certain acts of alleged gross misconduct while working as Record Keeper at Radhanpur and Deodar Branches vide chargesheet No.DPS/ 92-93/15 dated 03.07.1992 on the following charges :
‘Doing an act prejudicial to the interest of the Bank.’ The imputations on which the above charges were based were enumerated in the said chargesheet and a tentative punishment order No.DPB/95-96/22 dated 10.07.95 issued by me. Shri Bhatti vide his letter dated 24.07.95, approached for a personal hearing in this regard, which was heard on 22.10.97.
I have carefully gone through the Enquiry Officer’s findings and all the enquiry proceedings and records. All the charges were proved established beyond doubt and I agree with the Enquiry Officer’s findings. After an independent study of the report, I am inclined to concur with the findings of Enquiry Officer’s in respect of Shri N.L.Bhatti.
I also note that Shri Bhatti, though he was permitted to represent his case through a representative from the Registered Union of the Bank Employee and defended the case himself. I have also taken into account Shri Bhatti’s past service records and looking to the gravity of the charge of Gross Misconduct established and Bank’s prestige lost in the eyes of the general public, which incidents Shri Bhatti who has put in long service, should have avoided. In the circumstances of the case, I have finally decided the ends of justice would meet by awarding punishment that Shri Bhatti “Discharged” as per clause 521(5)(o) of the Sastry Award and also his suspension period be treated as such.
I order accordingly. Let it be communicated to the employee.”
3. The petitioner after being discharged from service requested respondent no.1 Bank to process his file for pension under the State Bank of India Employees’ Funds Rules. On 30/6/1999 respondent no.2 forwarded a proposal in this regard to the Assistant General Manager, State Bank of India, Gandhinagar. As provided under the Rules, the petitioner also got himself medically checked- up through a Doctor and all other necessary formalities were completed by the petitioner. The Assistant General Manager, vide letter dated 8/10/1999 informed the Branch Manager, State Bank of India, Deodar that the petitioner is not eligible for pension as per The State Bank of India Employee’s Pension Fund Rules. While rejecting the proposal for pension, the Asst.General Manager took into consideration the fact that the petitioner had put inactive service i.e. pensionable service of 19 years 11 months and 4 days. The above service was counted from the date of confirmation i.e. 1/6/1972 to the date of Suspension i.e. 5/5/1992. As per Rule-22(i)(d) of State Bank of India Employee’s Pension Fund Rules, member is entitled to a pension after 25 years of pensionable service.
4. It is the case on behalf of the petitioner that instead of considering the request for pension/family pension, respondent no.1 misinterpreted the rules necessary for calculating the qualifying number of years of the petitioner. According to the petitioner, without considering the requisite rules for calculating the qualifying number of years of service of the petitioner with the respondent Bank i.e. from the date of appointment upto the order of discharge from service i.e. 8/10/1999, respondent-1 arbitrarily, unlawfully, illegally and malafidely rejected the proposal of the petitioner for pension.
5. Under such circumstances, petitioner was left with no other option but to approach this court by way of this petition under Article-226 of the Constitution. Pending final disposal of the petition, an amendment was prayed for in the petition by which the petitioner has also challenged the order dated 10/11/1997 passed by the Disciplinary Authority discharging the petitioner from the service pursuant to the departmental inquiry initiated against the petitioner. It is the case of the petitioner that considering the charge and the conclusion of the Departmental inquiry, the order discharging the petitioner from service is very harsh and disproportionate considering the alleged misconduct. It is his case that the petitioner had contacted the Union for preferring an appeal against the said order of discharge, but the Office Bearers of the Union failed to take any positive action in this regard and, therefore, he was left with no other option but to challenge the order of discharge by way of this petition.
6. The petition was admitted on 27/2/2003. A Notice of Rule was served upon the respondent nos.1 and 2. Respondent nos.1 and 2 have appeared before this Court and have opposed this petition by filing affidavit-in- reply. The stand of the respondents, as reflected from the affidavit-in-reply, may be summarized as under:
6.1) The pension proposal received from the petitioner was sent by Deodar Branch to the Regional Office and the Regional Office of the Bank, in turn, forwarded the said proposal to the Bank Pension, P.F. and Gratuity Department at the Local Head Office at Ahmedabad. It was found that the petitioner had put in only 19 years 11 months and 4 days of service with the Bank. On further scrutiny by the Bank, it was found that the petitioner was not eligible for pension and therefore, the Asst.General Manager (II), the respondent-
1 herein under whose control Deodar Branch falls, informed the petitioner vide letter dated 8/10/1999 that the petitioner was not eligible for pension in terms of Rule-22(i)(d) of State Bank of India Employee’s Pension Fund Rules. As per Ruile-7A of the Rules, Pensionable service is counted from the date of confirmation to the date of termination. As per Rule-21(i) period of suspension shall be counted for the purpose of pensionable service only to the extent of the authority who reinstates the employee, declares the employee to be pensionable at the time of reinstatement. It is the stand of the respondents that the period during which the petitioner was under suspension shall be counted as service, if on conclusion of inquiry the employee is fully exonerated from the suspension is held to be wholly unjustified. In other cases, period of suspension shall not be counted as qualifying service for the purpose of pension. According to the respondents the Disciplinary Authority has discretion under Bi-partite Settlement/Award and Service Rules to treat the suspension period as On-duty or as the case may be. In the instant case, it has been treated “as such” which means that the discharged employee will not be eligible for any wages, allowances or any other benefit for the period during which the employee was under suspension other than the subsistence allowance already paid to him. According to the respondents, under the circumstances, period during which the petitioner remained under suspension cannot be counted for the purpose of pension or for any purpose like seniority, PF, Gratuity, Pension etc. According to the respondents, the petitioner was confirmed in service on 1/6/1972 and discharged on 10/11/1997. The period between 1/6/1972 and 10/11/1997 comes to 25 years, 5 months and 10 days, however, as the petitioner was under suspension between 30/4/1992 till 10/11/1997, 5 years, 6 months and 10 days has to be excluded from 25 years, 5 months and 10 days. As the period is less than 25 years as required under Rule-22(i) (d) of the Rules, the petitioner is not entitled to pension. Over and above this fact, at the time of termination the petitioner was aged 46 years and 3 months and therefore, on this ground also the petitioner was not entitled to the pensionary benefit.
7. Ms.Krishna Desai, learned Advocate appearing for the petitioner, very forcefully submitted that the stand of the respondents in the present matter is highly arbitrary and contrary to the provisions of law. Ms. Desai submitted that the respondents ought to have counted the qualifying service by including the period of suspension. According to Ms. Desai, respondent authority has seriously erred in arbitrarily relying upon Rule- 22(i)(d) of the SBI Employee’s Pension Fund Rules while rejecting the proposal of the petitioner. Ms.Desai submitted that as per Rule-7 of the Fund Rules, every permanent employee in the service of the Bank is entitled to pensionary benefits under the terms and conditions of the service and shall become a member of the fund. Accordingly, petitioner became a member of the Fund from the date of confirmation in the service of the Bank. Ms.Desai submitted that from the date of confirmation the petiotner contributed towards the funds every month as per Rule-9(i) of the Fund Rules. Even during the period of suspension according to Ms.Desai petitioner was paid full salary and also contributed towards the funds. A certificate issued by the Branch Manager dated 14/6/2002 clearly goes to show that the petitioner was paid full salary From August, 1993 to 14/11/1997. In view of this, according to Ms. Desai, petitioner is entitled to the pension as the entire suspension period is to be counted for qualifying period of service for pension.
8. Ms.Desai submitted that the petitioner completed 25 years, 5 months and 10 days of service at the time when he came to be discharged from the service. But deduction of period of suspension from the length of service is erroneous as the petitioner was paid full salary from August, 1993 to November, 1997. As per Rule- 9(i), during the period of suspension 5% of salary was deducted from the full salary of the petitioner.
9. On the other hand Mr.P.R.Nanavati, learned counsel appearing for the respondents, vehemently submitted that there is no merit in this petition and the claim of the petitioner of pension is baseless. Mr.Nanavati submitted that it would be within the discretion of the Disciplinary Authority to treat the period of suspension as on duty or otherwise. According to Mr.Nanavati, in the present case, the Disciplinary Authority, considering the past service records of the petitioner including the nature of the misconduct established, decided to pass an order of discharge as provided under Clause-521 (5)(e) of the Sastry Award. Mr. Nanavati relying upon Rule-22(i) submitted that the petitioner had put-in 19 years, 11months and 4 days of service which was less than 25 years as required under Rule-22. Mr.Nanavati, therefore, urged that there being no merit in the petition the same be dismissed.
10. Having heard the learned counsel for the respective parties and having gone through the materials on record, the only question which falls for my consideration in this petition is as to whether the petitioner who was discharged from service after having put in 25 years, 5 months and 10 days of service inclusive of the suspension period of 5 years, 6 months and 10 days, is entitled to draw pension or not.
10.1) In order to answer this question, I need to first look into few relevant provisions of Law applicable in the present case. Rule-7 of the State Bank of India Employee’s Pension Fund Rules reads as under :
“7. Save as provided in rule 8, every permanent employee (including a permanent part-time employee who is required by the Bank to work for more than six hours a week) in the service of the Bank who is entitled to pension benefits under the terms and conditions of his service shall become a member of the Fund from –
(a) the date from which he is confirmed in the service of the Bank, or
(b) the date from which he may be required to become a member of the Fund under the terms and conditions of his service.”
Rule-21(i) reads as under :
“21. (i) No period of leave granted without leave salary or of absence without leave shall count as pensionable service. A period of suspension shall count as pensionable service only to such extent as the authority which reinstates him declares it to be pensionable at the time of reinstatement or the authority which sanctions his retirement declares it to be so at the time of according the sanction.”
Rule-22(i) reads as under :
“22. (i) A member shall be entitled to a pension under these rules on retiring from the Bank’s service –
a) After having completed twenty years’ pensionable service provided that he has attained the age of fifty years;
b) after having completed twenty years’ pensionable service, irrespective of the age he shall have attained, if he shall satisfy the authority competent to sanction his retirement by approved medical certificate or otherwise that he is incapacitated for further active service;
c) After having completed twenty years pensionable service, irrespective of the age he shall have attained at his request in writing;
d) After twenty five years’ pensionable service.”
Plain reading of Rule-7 would suggest that every permanent employee in the service of the Bank entitled to pension benefits shall have to become a Member of Fund from the date from which such employee is confirmed in the service of the Bank. In the present case, it is undisputed that the petitioner was a member of the fund and contributed towards the fund till the last. Rule-21 would suggest that period of suspension could be counted as pensionable service, if the authority which reinstates the employee declares it to be pensionable at the time of reinstatement or the authority which sanctions the retirement of the employee declares it to be so at the time of according the sanction. Rule-22(i) provides for the minimum years of service for the purpose of benefit of pension. In the present case if the period of suspension is counted the number of years of service would be more than 25 years. But if the period of suspension is to be excluded then the actual service will be of 19 years, 11 months and 4 days. For the time being I proceed on the footing that the petitioner would be governed by Rule-22(i)(d) i.e. 25 years of pensionable service.
11. I shall now look into the Award, popularly known as the Sastry Award. Article-521(5) reads as under :
“521.
(5) An employee found guilty of gross misconduct may:
(e) have his misconduct condoned and be merely discharged.”
Article -521 (10) (b) & (c) read as under: “521.
(10)
(b) Pending such inquiry he may be suspended, but if on the conclusion of the enquiry it is decided to take no action against him he shall be deemed to have been on duty and shall be entitled to the full wages and allowances and to all other privileges for the period of suspension; and if some punishment other than dismissal is inflicted the whole or a part of the period of suspension, may, at the discretion of the management, be treated as on duty with the right to a corresponding portion of the wages, allowances, etc.
(c) In awarding punishment by way of disciplinary action the authority concerned shall take into account the gravity of the misconduct, the previous record, if any, of the employee and any other aggravating or extenuating circumstances that may exist. Where sufficiently extenuating circumstances exist the misconduct may be condoned and in case such misconduct is of the “gross” type he may be merely discharged, with or without notice or on payment of a month’s pay and allowances, in lieu of notice. Such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. Discharge in such cases shall not be deemed to amount to disciplinary action.”
12. In my opinion Article-521 (5)(e) read with Article-521 (10)(b) clinches the issue. An employee found guilty of gross misconduct could be dismissed, warned or censured or have an adverse remarks entered against him, be fined, have his increment stopped and most importantly in a given case the Disciplinary Authority may condone the misconduct and merely discharge the employee. In the present case the Disciplinary Authority thought fit to discharge the petitioner from service. Once the Disciplinary Authority decided and passed an order of discharge from service against the petitioner, Article- 521(10)(b)and (c) would come into play. Article-521(10) (b) says that if some punishment other than dismissal is inflicted, the whole or a part of the period of suspension, may, at the discretion of the management be treated as on duty with the right to a corresponding portion of the wages, allowances etc. Admittedly in the present case the punishment was not of dismissal, but was one of discharge. Under such circumstances clause(c) would come into play. Clause (c) provides that where circumstances exists the misconduct may be condoned and in case misconduct is of gross type the employee may be merely discharged, with or without notice or on payment of a month’s pay and allowances in lieu of notice. Clause-(c) further provides that such discharge may also be given where the evidence is found to be insufficient to sustain the charge and where the Bank does not, for some reason or other, think it expedient to retain the employee in question any longer in service. If that be so, discharge in such cases shall not be deemed to amount to disciplinary action.
13. I am of the view that the petitioner in the present case was not discharged on the ground that the evidence was insufficient to sustain the charge and the Bank did not deem fit to retain the petitioner any longer in service. But the fact remains that the punishment of discharge is definitely one, other than dismissal.
14. Most importantly at the time, when the Disciplinary Authority decided to consider the period of suspension as such, no opportunity of hearing was given to the petitioner.
15. It is a settled principle of law that the authority is obliged to hear the delinquent to consider as to whether the period of suspension be treated as one on duty or otherwise. In the present case undisputedly no such opportunity was given to the petitioner and the period of suspension was treated as such.
16. I have also noticed that the effect of discharging an employee would be condoning his misconduct. This appears to be from the plain wordings of 521(e) of the award, which reads:
“Have his misconduct condoned and be merely discharged :”
If that be the position then under such circumstances, there was no good reason for the disciplinary authority to treat the period of suspension as such.
17. There are two reasons why I am taking this view of the matter. An order of suspension of a Government Servant as explained by the Supreme Court in the case of Khemchand Vs. Union of India reported in AIR 1963 SC-687 does not put an end to his service under the Government. He continues to be a member of the service in spite of order of suspension. The real effect of the order of suspension is that though he continues to be a member of the Government service, he is not permitted to work, and furher, during the period of his suspension he is paid only subsistence allowance which is normally less than his salary instead of the pay and allowances he would have been entitled to if he had not been suspended. In the present case I am told that full salary was being paid to the petitioner during his period of suspension. The second reason is having paid the full salary for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner.
18. In taking the above view of the matter, I am fortified by observations of the Supreme Court in the case of Bibhuti Bhushan Chaudhary Vs. Union of India & another reported in (1997)11 Supreme Court Cases -373. A short order passed by the Supreme Court reads as under :
“1. The question that arises for consideration in this writ petition is whether the period during which the petitioner was under suspension could be excluded for the purpose of computing the pension payable to him.
2. The petitioner was employed as Station Master in the Railways. By order dated 19-1-1962 he was placed under suspension on account of his failure to join duty at the place of transfer. The said order of suspension continued in operation till 8/5/1970 when the petitioner was allowed to join duty. He retired from service on attaining the age of superannuation on 31-1- 1980. It appears that disciplinary proceedings had been initiated against the petitioner but the same could not be competed till he retired. The petitioner has been paid subsistence allowance for the period of suspension.
3. The learned counsel for the petitioner has confirmed his submissions to the computation of the pension payable to the petitioner and has urged that although the subsistence allowance has been paid to the petitioner for the period of suspension the said period has been excluded from the qualifying service of the petitioner for the purpose of computing the pension payable to him. Having regard to the fact that the petitioner has been paid the subsistence allowance for the period of suspension, the said period of suspension could not be excluded from the qualifying service for the purpose of computing pension of the petitioner and the pension payable to the petitioner should be calculated by taking into account the said period of suspension as part of his qualifying service. It is, therefore, directed that the petitioner is entitled to count the period of suspension as part of his qualifying service for the purpose of computing the pension payable to him. The amount of pension payable to the petitioner should be reassessed on that basis and the amount of arrears found payable to the petitioner as a result of such reassessment shall be paid to the petitioner within a period of three months. The writ petition is disposed of accordingly. No orders as to costs.”
19. Taking into consideration the fact that the petitioner served the Bank for almost 19 years, and also taking into consideration the fact that the authority concerned thought fit to condone the misconduct and discharge the petitioner from service, coupled with the fact that during the period of suspension full salary was being paid to the petitioner and the petitioner also contributed 5% of his salary to the fund during the period of suspension, the period of suspension deserves to be included as part of his qualifying service for the purpose of computing the pension payable to the petitioner, I am not touching the issue as to whether the order passed by the disciplinary authority dated 10.11.1997 discharging the petitioner from service deserves to be set aside or not, in the light of the view which I have taken, so far as the period of suspension as part of his qualifying service is concerned.
18. For the afore-stated reasons, I allow this petition. The impugned decision dated 8.10.1999 (Annexure-A to the petition) is hereby set aside. The respondent-Bank is directed to count the period of suspension i.e. from 5.5.1992 to 10.11.1997 as part of his qualifying service for the purpose of computing the pension payable to the petitioner. The respondent-Bank is hereby directed to compute the amount of pension payable to the petitioner as on the date of his superannuation. The amount of arrears found payable should also be calculated within a period of four weeks from today and pay the requisite amount towards the arrears within a period of two weeks thereafter. The writ petition is disposed of accordingly. Rule made absolute to the aforesaid extent.
(J.B.PARDIWALA, J.) Ashish N.