JUDGMENT B.S. Chauhan, J.
1. This writ petition has been filed for quashing the order dated 13th November, 1997, by which the Zonal Manager Central, U.P. Zone, Agra of the Punjab National Bank (hereinafter called the 'Bank'), imposed the major penalty of dismissal from service of the Bank and the appellate order dated 21.10.1998 by which the appeal filed by the petitioner against the aforesaid order of dismissal was dismissed by the Appellate Authority. A further relief has been sought that a direction should be issued to the respondents to pay the postretiral benefits to the petitioner.
2. The petitioner, who was working as a Manager in the Bank, was served with a charge sheet dated 06.03.1996 for committing certain lapses. The petitioner did not submit any statement of defence even though the time was extended on his request several times. The disciplinary proceedings were initiated against the petitioner vide order dated 23rd April, 1996 and the inquiry Officer was appointed. The Inquiry Officer found the charges proved against the petitioner. The copy of the enquiry report was thereafter sent to the petitioner for submission of his representation. The petitioner submitted his representation and after considering the same, the order was passed by the Disciplinary Authority. It was noticed in the order that the petitioner had engaged himself in reckless lending and thereby violated the lending norms and disbursed loans through middlemen. He also had demanded and received an illegal gratification from borrowers and failed to keep the limitation alive in borrowal accounts and incurred expenses beyond his vested powers; and on account of his reckless lending, the Bank had suffered huge loss to the extent of Rs. 1,14,87,164.76 (Rupees One Crore Fourteen Lacs Eighty Seven Thousands One Hundred Sixty Four and Raise Secenty Six Only). The Appellate Autnority also rejected the appeal filed by the petitioner. Hence the present petition.
3. We have heard learned Counsel for the petitioner and have perused the material available on record. None appeared for the respondents.
4. Learned counsel for the petitioner submitted that while enquiring the matter, the principles of natural justice had been violated inasmuch as proper opportunity had not been given to him.
5. We are unable to accept the aforesaid contention of the learned Counsel for the petitioner for the simple reason that, in our opinion, the petitioner himself avoided appearing before the Inquiry Officer as is apparent from a bare perusal of the inquiry report dated 30th September, 1997, which clearly shows that In spite of repeated notices informing the date and venue of the enquiry sent to the petitioner through registered post as well as through courier and also through the messenger, the petitioner did not respond and so the enquiry was conducted ex parte. It was only on 24.01.1997 that the petitioner appeared when the presentation by the Presenting Officer was over and made a request to fix the next date of enquiry after a week due to his illness. This request was accepted by the Inquiry Officer and 13th March, 1997 was fixed but the petitioner again absented himself as a result of which the enquiry proceedings were concluded ex parte on 13th March, 1997. However, on the request of the petitioner, the Inquiry Officer granted one more opportunity to the petitioner and fixed 29th May, 1997. As the petitioner did not appear on the said date also, another opportunity was given by fixing 19th July, 1997. The petitioner failed to utilize this opportunity, also and informed the Inquiry Officer that he would not be able to attend as his son-in-law was ill. This request was accepted by the' Inquiry Officer and 2nd August, 1997 was fixed, which was noted by the petitioner. The petitioner for the reasons best known to him, did not turn up on the said date also. The Inquiry Officer however gave another opportunity to the petitioner and fixed the enquiry for 19th August, 1997. The petitioner failed to utilize all these opportunities and, therefore, the Inquiry Officer asked the Presenting officer to submit his written brief. The written brief was submitted by the Presenting Officer and a copy of the same was then sent to the petitioner for submitting his reply but the petitioner did not submit any reply to the same. It is, therefore, dear that in spite of repeated opportunities having been given to the petitioner, he did not avail the same. It is, thus, not open to the petitioner to now contend that proper opportunities had not been given to him.
6. The charges leveled against the petitioner, which were found proved upon enquiry, are quite serious in nature. The petitioner had engaged himself in reckless lending causing huge financial loss to the Bank to the extent Of Rs. 1,14,87,164,76. It also shows that the petitioner had disbursed loan through middlemen and demanded and received illegal gratification from a borrower. We are of the considered opinion that in such cases, the officers of the Bank should not be permitted to continue in service at all.
7. Once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office-of trust and confidence requires absolute integrity. A necessary implication which must be engrafted on the contract of service is that the servant must undertake to serve his master with good faith and fidelity. In a case of loss of confidence, reinstatement cannot be directed. Granting such an employee the relief of reinstatement would be "an act of misplaced sympathy which can find no foundation in law or in equity." (Vide Air India Corporation Bombay v. V.A. Ravellow ; The Binny Ltd. v. Their Workmen ; Kamal Kishore Lakshman v. Management of Pan American World Airways Inc and Ors. ; Francis Kalein & Co. Pvt. Ltd. v. Their Workmen ; Regional Manager, Rajasthan SRTC v. Sohan Lal ; and Bharat Heavy Electricals Ltd. v. M. Chandrashekhar Reddy and Ors., 2005 AIR SCW 1232).
8. In Kanhaiyalal Agrawal and Ors. v. Factory Manager, Gwaliar Sugar Co. Ltd. , the Hon'ble Supreme Court laid down' the test for loss of I confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (i) the workman is holding the position of trust and confidence; (ii) by abusing such position, he commits act which results In forfeiting the same; and (iii) to continue him in service/establishment would be, embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved.
9. In Sudhir Vishnu Panvalkar v. Bank of India , the Apex Court while dealing with the issue in hand, held that in certain cases, where there is sufficient material available against the employee and. is a case of loss of confidence, even the formal enquiry is not required. However, in Chandu Lal v. The Management of Pan American World Airways Inc. , the Apex Court held that where termination on the ground of loss of confidence casts stigma, enquiry must be held.
10. Be that as it may, in the instant case, regular inquiry has been conducted,:
11. In State Bank of India v. Bela Bagchi and Ors. , the Hon'ble Supreme Court repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence, particularly, in the services of the financial institutions where the higher standard of honesty and integrity is required as he has to deal with the money of the depositors and the customers. Every employee of the Bank is required to take all possible steps to protect the interests of the Bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a Bank Officer. Good conduct and discipline are inseparable from the functioning of every employee of the Bank. Whether the charges are of the grave nature and not merely casual, the major punishment is to be inflicted even if there is absence of pecuniary loss to the Bank. While deciding the said case, reliance has been placed upon its earlier judgment in Disciplinary Authority-cum-Regional Manager, v. Nikunja Bihari Patnaik .
12. In view of the above, we are not in a position to accept the submissions Ion behalf of the petitioner that in such a fact situation punishment of dismissal from service is not warranted.
13. Learned counsel for the petitioner then' contended that as the petitioner, had attained the age of superannuation and stood retired on 31.01.1997, the order of dismissal from services of the Bank was wholly unjustified and In support of this contention, learned Counsel for the petitioner placed reliance upon the decision of the Hon'ble Supreme Court in State of Uttar Pradesh v. Shri Brahm Datt Sharma and Anr. wherein it had been held that If the disciplinary proceedings against an employee, of the Government are Initiated in respect of misconduct committed by him and he retires from service on attaining the age of superannuation, before the completion of the proceedings, it is open to the State Government to direct deduction from his, pension on the proof of allegations made against him. However, if the charges are not established in disciplinary proceedings or the disciplinary proceedings are quashed, it is not permissible to the State Government to direct deduction In pension on the same allegations. However, if the charges of misconduct have been of serious nature and are established and have bearing on the question of rendering efficient and satisfactory service, it would be open for the Government to proceed against him in accordance with law and to reduce his pension and gratuity to the extent demanded by the facts of a particular case.
14. This proposition is worth acceptance. The same view has been reiterated by the Hon'ble Apex Court in M. Narasimhachar v. The State of Mysore ; State of Maharastra v. M.H. Mazumdar ; and Takhatray Shivadattray Mankad v. State of Gujarat , while interpreting similar provisions applicable in the cases.
15. Thus, in view of the above, it can be held that once a person retires on 1 reaching the age of superannuating, punishment of dismissal pr removal cannot be imposed and the only option left to the employer is to continue with the enguiry initiated earlier when he was in service, to reach its logical conclusion and pass an order of withholding the retiral benefits fully or to certain extent as per the facts of the case applying the Rules involved therein.
16. In the present case, admittedly, it was not permissible for the respondents to pass the order of dismissal after the petitioner had reached the age of superannuation. Question of such an order does not arise as the employee is no more in service. He gets pension and other retiral benefits for the services rendeed by him. However, in the counter affidavit, the respondents have explained the order by contending that the punishment of dismissal results in legal consequences, i.e. the punished employee is deprived of pension, gratuity and leave encashment as per the provisions of Punjab National Bank (Officers) Service Regulations 1977. The respondents have also filed a copy of the Circular dated 5th March, 1999, though subsequent to the order imposing punishment and the order of the Appellate Authority is relevant to determine the controversy. Learned counsel for the petitioner has insisted that his case is to be considered under the said circular. The said circular provides that where the departmental proceedings are instituted while a person is in service and the said proceedings are continuing after he has reached the age of superannuation, then none of the penalties as provided under Regulation 4 of the Bank Officers Employees (Discipline and Appeal) Regulations can be imposed at the conclusion of the proceedings but the Bank can make recoveries in the event the officer have been found guilty" of causing monetary loss to the Bank and also deprive him of retiral benefits to the permissible extent.
17. In view of the above, it may be desirable that the matter be remanded the respondent authorities to pass an appropriate order setting aside the impugned orders. However, considering the fact that the matter is pending since long and in order to bring the litigation to an end and considering the gravity of the charges and financial loss suffered by the Bank, we substitute the order of dismissal by the order of withholding all retiral benefits as has been explained in the counter affidavit. However, no recovery of the loss to the Bank to the tune of Rs. 1,14, 87,164.76 shall be made from him.
18. Petition is disposed of accordingly.