WP(C) 1846/2003 BEFORE THE HON’BLE MR. JUSTICE B.K. SHARMA JUDGEMENT AND ORDER (ORAL) By means of this writ petition, the petitioner has put to challe nge the Annexure-III order dated 30.12.1997. That was issued in reference to the suspension notice 1.10.1997, by which, it was conveyed that although the petiti oner would go on superannuation with effect from 31.12.1997, he would be deemed to be in service of the respondent Bank for the purpose of departmental proceedi ng which stood already initiated against the petitioner. For a ready reference, the said order is quoted below: THE ASSAM CO-OPERATIVE APEX BANK LTD. :: H.O. GUWAHATI:: ******** NO. ADMN/HO/DP/PNS/155/97/17650 Date: 30.12.97 To Shri Pradip Narayan Senapati, Sub-Accountant, Apex Bank Limited Fancy Bazaar Branch. Ref: Superannuation Notice Dt. 1.10.97 Dear Sir, With reference to the Notice referred to above, you are hereby informed that alt hough you will go on superannuation w.e.f. 31.12.97 (Afternoon) you will be deem ed to be in service of the Bank for the purpose of disciplinary proceedings only initiated against you till its final disposal without any other service benefit s. Yours faithfully MANAGING DIRECTOR 2. The petitioner while serving in the respondent Bank as Sub-Accou ntant was served with the charge sheet dated 15.12.1997 levelling as many as 6 c harges, all relating to financial irregularities. Although the charge sheet has been annexed to the writ petition as Annexure-II, but the same is without the st atement of allegations which formed part of the charge sheet. In the said statem ent of allegation, which Mr. PN Goswami, learned Standing Counsel, Apex Bank has produced, details of the charges levelled against the petitioner have been indi cated. 3. When the charge sheet dated 15.12.1997 was issued, the petitione r was left with 16 days of service, his date of retirement on attaining the age of superannuation being 31.12.1997. Be that as it may, in response to the said c harges, the petitioner submitted his reply on 26.12.1997. However, as the procee ding was not possible to be concluded within 31.12.1997, the Bank authority pass ed the impugned order quoted above. 4. After the aforesaid impugned order, the departmental proceeding was initiated against the petitioner with the appointment of Enquiry Officer etc ., in which, the petitioner duly participated. It is on record that the said pro ceeding came to an end on 19.10.1998 with the submission of enquiry report. Howe ver, the said report was not acted upon and the matter was kept pending without any finality to the same. 5. The petitioner filed the writ petition in 2003, when the Bank br ought an amendment to the Assam Co-operative Apex Bank Limited (Staff) Rules, 19 80 on 21.10.2002, by which Clause C was inserted to Rule 46 of the said Rules, w hich reads as follows: Rule No. 46 (C): Notwithstanding anything contained in the Staff Rules of the Bank for the time b eing in force, an employee of the Bank shall be subject to disciplinary proceedi ngs for any alleged acts of omission and commission causing pecuniary loss to th e Bank or in any other way harming the reputation, prestige and good-will of the Bank, and for any acts of violations of the provisions of the Bye-laws and Staf f Rules or any standing orders/instructions/Circulars/ procedures of the Bank, e ven after their superannuation/ retirement form the services of the Bank, for su ch reasonable period so as to enable the Bank to complete the disciplinary proce edings initiated at the earliest and without any reasonable cause of delay on th e part of the Bank. Provided that during such extended period of service, the concerned employee wou ld not be entitled to any salaries and other service benefits and his retiral be nefits would remain withheld till the charges levelled against him are finally d isposed of as per existing provision of the Staff Rules of the Bank. The concern ed employee would be provided with all opportunities for effective participatipo n in the disciplinary proceedings. On his failure to participate in the discipli nary proceedings, the Bank will be at liberty to proceed ex-parte and imposed pu nishments commensurate with the gravity of the offence as deemed fit and proper by the Management of Bank. In case any punishment is inflicted, such punishment shall be deemed to have been effective on the date of retirement/superannuation. Notwithstanding anything contained in the Staff Rules of the Bank the Managing D irector shall be the competent authority to extend service of the concerned empl oyees without any service benefit beyond the period of retirement/superannuation for the purpose of departmental proceedings. This Rule shall also be applicable to all existing pending cases of departmental proceedings as on the date of the Circular issued in this regard. 6. According to the petitioner, the amended Rule 46 (C) being prosp ective, it has no application to the case of the petitioner. It is his stand tha t the said amendment brought on 21.10.2002 cannot have any retrospective applica tion and consequently the petitioner could not have been taken up for a departme ntal proceeding deeming him to be in service after his retirement on attaining t he age of superannuation. 7. During the course of hearing, Mr. S. Banik, learned counsel for the petitioner has submitted that although in the writ petition there is some so rt of challenge to the retrospectivity of the amended Rule i.e. Rule 46 (C), but having regard to the facts and circumstances involved in the case even without a challenge to the said Rule 46 (C), the petitioner is entitled to the relief pr ayed for by way of interference with the impugned Annexure-III order dated 30.12 .1997. 8. I have heard learned counsel for the parties and have perused to entire materials on record. Mr. Banik, learned counsel for the petitioner has e mphasised that after the petitioner had retired from service on attaining the ag e of superannuation on 31.12.1997, the Bank authority in absence of any Rule cou ld not have been deemed the petitioner to be in service only for the purpose of completion of the departmental proceeding. That apart, he has also highlighted o n the point of delay in finalising the departmental proceeding. He has submitted that even if, it is held that the Bank is authorised to proceed against the pet itioner, the charge sheet having been issued way back in 1997 (15.12.1997), the Bank authority ought to have been finalised the same at a reasonable time instea d of prolonging the same for the last 14 years. In this connection, he has place d reliance on the decision of the Apex Court reported in (1998) 4 SCC 154 (State of A.P. Vs. N. Radhakishan), in which dealing with the question of delay in fin alising departmental proceeding, the Apex Court has observed thus: It is not possible to lay down any predetermined principles applicable to all c ases and in all situations where there is delay in concluding the disciplinary p roceedings. Whether on that ground the disciplinary proceedings are to be termin ated each case has to be examined on the facts and circumstances in that case. T he essence of the matter is that the court has to take into consideration all th e relevant factors and to balance and weigh them to determine if it is in the in terest of clean and honest administration that the disciplinary proceedings shou ld be allowed to terminate after delay particularly when the delay is abnormal a nd there is no explanation for the delay. The delinquent employee has a right th at disciplinary proceedings against him are concluded expeditiously and he is no t made to undergo mental agony and also monetary loss when these are unnecessary prolonged without any fault on his part in delaying the proceedings. In conside ring whether the delay has vitiated the disciplinary proceedings the court has t o consider the nature of charges, its complexity and on what account the delay h as occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the discipli nary authority is serious in pursuing the charges against its employee. It is th e basic principle of administrative justice that an officer entrusted with a par ticular job has to perform his duties honestly, efficiently and in accordance wi th the rules. If he deviates from this path he is to suffer a penalty prescribed . Normally, disciplinary proceedings should be allowed to take their course as p er relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary procee dings. Ultimately, the court is to balance these two diverse considerations. 9. Countering the above Argument, Mr. PN Goswami, learned Standing Counsel, Apex Bank has submitted that irrespective of the aforesaid amendment by way of inserting Clause 46 (C) to the aforesaid Rule of 1980, the Bank is other wise also authorised to pass the order like that of the impugned Annexure-III or der dated 30.12.1997 deeming an employee of the Bank against whom departmental p roceeding is pending or are contemplating to be in service for the limited purpo se. He submits that considering the huge financial loss caused to the Bank, the petitioner cannot get himself absolved of the charges with his retirement on att aining the age of superannuation. As regards the delay, he has submitted that wh ile it is true that there was some amount of confusion regarding the proceeding initiated against the petitioner, delay was also due to the proceeding initiated by the petitioner by filing this writ petition in the year 2003. Mr. Goswami ha s also drawn my attention to Rule 120 of the aforesaid Rules of 1980, which read s as follows: 120. Where no specific provision has been made in these Rules in respect of any matter, the relevant rules of the State Government relating to such matter shal l be followed as far as practicable. 10. I have given my anxious consideration to the submissions made by the learned counsel for the parties and the entire materials on record. Mr. Gos wami, learned Standing Counsel, Apex Bank in support of his aforesaid argument h as placed reliance on three decisions of the Apex Court, which are (1997) 8 SCC 89 (Union of India Vs. B.S. Agarwal & Ors.); (2008) 2 SCC 41 (U.P. State Sugar C orporation Ltd. Vs. Kamal Swaroop Tondon); (2008) 2 SCC 409 (Sakiri Vasu Vs. Sta te of Uttar Pradesh). 11. Before dealing with the instant case, it will be appropriate to refer to the decisions, on which learned counsel for the parties have placed rel iance to appreciate the principles involved in the cases and applicability of th e same to the instant proceeding. In N. Radhakishan (supra), the Apex Court was concerned with delay in framing charges against the delinquent officer. It was i n that context the above quoted observation was made in paragraph 19 of the judg ment. It has been held that it is not possible to lay down any predetermined pri nciples applicable to all cases and in all situations where there is delay in co ncluding the disciplinary proceedings. The essence of the matter is that the Cou rt has to take into consideration all the relevant factors and balance and weigh them to determine if it is in the interest of clean and honest administration t hat the disciplinary proceedings should be allowed to terminate after delay, par ticularly when the delay is abnormal and there is no explanation for the delay. 12. Unlike the aforesaid case, in the instant case, there is no dela y in initiating the disciplinary proceeding. As noted above, the charge was issu ed to the petitioner on 15.12.1997 to which the petitioner furnished his reply o n 26.12.1997 without any reservation. As submitted by the learned counsel for th e parties, the enquiry proceeding came to end with the submissions of enquiry re port on 9.10.1998. Thus, there is no delay in finalising the proceeding. However , it cannot be lost sight the fault that there was delay in passing the final or der. Although the enquiry report dated 9.10.1998 was submitted on 10.10.1998, bu t there is no explanation as to why there is inordinate delay in finalising the proceeding. Needless to say that a disciplinary proceeding comes to an end with the passing of the final order either imposing penalty or exonerating the delinq uent. Although, the proceeding was concluded, but the authority did not take any steps towards passing the final order till 2003, when the writ petition was fil ed by the petitioner after coming into force the aforesaid amended rules i.e. Ru le 46 (c). 13. Although Mr. Goswami, learned Standing Counsel, Apex Bank has su bmitted that the bank authority thought it prudent not to pass the final order d uring pendency of the writ petition, it is on record that there is no interim or der operating against continuation and/or finalisation of the of the disciplinar y proceeding. However, the bank authority might be justified in taking the plea that it would not be proper on its part to allow the proceeding to come to its l ogical conclusion as the issue was pending before Court. At this stage, Mr. Gosw ami submits that there was also seizure of some documents and according to him, such seizure also attributed to the delay in passing the final order. 14. The decision in B.S. Agrwal (supra) has been pressed into servic e to emphasise on the interpretation of statute also. It was held in that case t hat Court should lean in favour of such interpretation of a statute, which confo rms to justice and fair play and prevents potentiality of the injustice by liber ally construing the provision. 15. Irrespective of the amended provision i.e. Rule 46 (c), the Bank was within its jurisdiction and competence to follow Rule 120 of the Rules of 1 980, which provides, that where no specific provision has been made in the Rules in respect of any matter, the relevant rules of the State Government relating t o such matter shall be followed as far as practicable. Rule 21 of the Assam Serv ices (Pension) Rules, 1969 provides for continuation of departmental proceeding against a retired employee, which was initiated before such retirement on attain ing the superannuation age. It is in this context, Mr. Goswami, learned Standing Counsel, Apex Court submits that when the aforesaid Rule makes such provision a nd Rule 120 of the aforesaid Rules of 1980 also provides for following Assam Ser vices (Pension) Rule coupled with the fact that the respondent Bank is an instru ment of the State, there was nothing wrong in continuing with the proceeding aga inst the petitioner deeming him to be in service for the purpose. Even if no suc h order was passed like that of the impugned order, it was within the competence and jurisdiction of the bank authority to continue with the proceeding that was initiated against the petitioner even after his superannuation age and retiring from the bank service on that basis. 16. In Kamal Swaroop Tondon (supra), the Apex Court was concerned wi th the power of the Appellate Authority to recover from pensionary benefits on a ccount of loss caused to the Government. It was held that disciplinary enquiry c an be instituted against a Government servant after superannuation and pension c an be reduced on proved charges of misconduct, negligence or financial irregular ity committed during the period of service. 17. In Sakiri Vasu (supra), the Apex Court applying the doctrine of necessary implication, held that when a power is given to an authority to do som ething it includes such incidental or implied powers which would ensure the prop er doing of that thing. In this connection, the following observations in the ju dgment are quoted below: 18. It is well settled that when a power is given to an authority to do somethi ng it includes such incidental or implied powers which would ensure the proper d oing of that thing. In other words, when any power is expressly granted by the s tature, there is impliedly included in the grant, even without special mention, every power and every control the denial of which would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all such acts or employ such means as are essentially necessary for its execution. 19. The reason for the rule (doctrine of implied power) is quite apparent. Many matters of minor details are omitted from legislation. As Crawford observes in h is Statutory Construction (3rd Edn., p. 267): & If these details could not be inserted by implication, the drafting of legisl ation would be an interminable process and the legislative intent would likely b e defeated by a most insignificant omission. 20. In ascertaining a necessary implication, the court simply determines the leg islative will and makes it effective. What is necessarily implied is as much par t of the statue as if it were specifically written therein. 21. An express grant of statutory powers carries with it by necessary implicatio n the authority to use all reasonable means to make such rant effective. Thus in ITO v. M.K. Mohammad Kunhi this Court held that the Income Tax Appellate Tribun al has implied powers to grant stay, although no such power has been expressly g ranted to it by the Income Tax Act. 22. Similar examples where this Court has affirmed the doctrine of implied power s are Union of India v. Paras Laminates (P) Ltd, RBI v. Peerless General Finance and Investment Co. Ltd. (AIR at p. 656), CEO & Vice0Chairman, Gujarat Maritime Board v. Haji Daud Haji Harun Abu, J.K. Synthetics Ltd. v. CCE, State of Karnata ka v. Vishwabharathi House Building Coop. Society (SCC at p. 432), etc. 18. As has been held above, irrespective of the amendments brought i n 2002 by way of incorporation of Rule 46(c), the bank even otherwise also is em powered to continue with the proceeding that was initiated against the petitione r. Rule 46(a) (iii) provides for recovery from pay and/or from retirel benefit o f the whole or part of any pecuniary loss caused to the Bank by negligence, misc onduct or breach of orders. Once such a provision has been made in the Rule, the authority and jurisdiction of the disciplinary authority of the bank to proceed even against a retired bank employee with the departmental proceeding that was initiated during his service tenure can easily be traced back. Automatically the said power is vested with the disciplinary authority and if any further source is required, same is available under Rule 120 of the Rules. 19. In view of the above, I am of the considered opinion that the im pugned order dated 30.12.1997 cannot be said to be illegal. As already noted abo ve irrespective of the said order, even otherwise also departmental proceeding t hat was initiated against the petitioner could have been continued in reference to the source under Rule 120 of the said Rule coupled with Rule 46 (a) (iii). 20. This now leads us to the question as to whether departmental pro ceeding that was initiated against the petitioner way back in 1997 is required t o be continued after long 14 years. As submitted by Mr. Banik, learned counsel f or the petitioner, presently the petitioner is 74 years of age and is in tremend ous financial hardship because of non-finalisation of the proceeding and consequ ent non-release of pensionary and other retiremental benefits. It is in this con text, he placed reliance on the aforesaid decision in N. Radhakishan (supra). 21. While upholding the decision of the respondent bank to proceed a gainst the petitioner even after his retirement on attaining the age of superann uation, the bank authority is directed to dispassionately consider the case of t he petitioner without being guided by any of the observations made in this judgm ent and order towards finalising the matter and while doing so, the said authori ty shall bear in mind the delay in concluding the proceeding and the fact that t he petitioner has already suffered a lot because of non-releasing the pensioanry and other retiremental benefit. The matter is left open to the sound discretion of the authority and it is expected that the said authority will not be oblivio us of the facts and circumstances staring on the face of it. 22. Let the entire exercise be carried out as expeditiously as possi ble, preferably within 31.12.2011.