IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 OP.No. 29672 of 2002(G) ----------------------- PETITIONER(S): --------------- P.PRABHAKARAN NAIR, AGED 64 YEARS, S/O.PARAMESWARAN PILLAI, (SECURITY GUARD, STATE BANK OF TRAVANCORE, NEYYATTINKARA BRANCH, RETIRED ON 31.7.1998) LEKSHMI NIVAS, PULLENKUZHY, MELPALA P.O., K.K.DISTRICT, PIN - 629152. BY ADV. SRI.K.P.RAJEEVAN RESPONDENT(S): --------------- 1. UNION OF INDIA, REPRESENTED BY ITS SECRETARY IN THE MINISTRY OF FINANCE, DEPARTMENT OF BANKING, NEW DELHI - 110 001. 2. STATE BANK OF INDIA, REPRESENTED BY ITS CHAIRMAN, STATE BANK OF INDIA, CENTRAL OFFICE, NARIMAN POINT, MUMBAI. 3. STATE BANK OF TRAVANCORE, REPRESENTED BY ITS MANAGING DIRECTOR, STATE BANK OF TRAVANCORE, HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM. 4. REGIONAL MANAGER-II (DISCIPLINARY AUTHORITY) STATE BANK OF TRAVANCORE, REGION-II, ZONAL OFFICE, THIRUVANANTHAPURAM-695 001. 5. DEPUTY GENERAL MANAGER (FLA), STATE BANK OF TRAVANCORE, HEAD OFFICE, POOJAPPURA, THIRUVANANTHAPURAM. 6. THE BRANCH MANAGER, STATE BANK OF TRAVANCORE, NEYYATTINKARA, THIRUVANANTHAPURAM. ADV. SRI.P.RAMAKRISHNAN FOR R3 SMT.S.AMBIKA DEVI, ADDL.CGSC FOR R1 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 23/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP NO.29672/2002 ORDER ON CMP NO.50274/2002 IN OP NO.29672/2002 DISMISSED. 23/10/2009 SD/- (ANTONY DOMINIC, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF MEMO NO.DPS/TVM/P&C-61 DATED 30/6/98 SERVED ON THE PETITIOENR BY THE DISCIPLINARY AUTHORITY-R4. P2 : COPY OF REPLY DATED 24/7/98 BY THE PETITIONER. P3 : COPY OF LETTER NO.DGM/T/DPS/234 DATED 25/3/99 AND ENQUIRY REPORT. P4 : COPY OF REPRESENTATION BEFORE THE DISCIPLINARY AUTHORITY DATED 13/5/99 SUBMITTED BY THE PETITIONER. P5 : COPY OF LETTER NO.DGM/T/DPS/427 DATED 24/1/2000 ISSUED BY THE DISCIPLINARY AUTHORITY. P6 : COPY OF ORDER NO.ACTS/PENS/11808 DATED 18/2/2000 BY R3. P7 : COPY OF REPRESENTATION BY THE PETITIOENR DATED 23/3/2000 BEFORE R3. P8 : COPY OF ORDER NO.LAW/ACTS/PPG/622 DATED 3/5/2000 BY R3. P9 : COPY OF PETITION DATED 13/7/2000 FILED BY THE PETIITONER. P10 : COPY OF LETTER NO.ACTS/PENS/7215 DATED 14/10/2000. P11 : COPY OF LETTER TO THE PETITIONER DATED 28/7/1999. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- O.P. No.29672 of 2002 --------------------------------- Dated, this the 23rd day of October, 2009 J U D G M E N T In 1979, the petitioner joined the State Bank of Travancore as a Security Guard on provisional basis. Subsequently, with effect from 28/11/1983, he was appointed on regular basis as a Security Guard. During 1998, the petitioner was posted at Neyyattinkara branch of the Bank. In the night of 31/05/1998, the petitioner and another Guard by name, Krishnankutty, were on duty. During the midnight, when the petitioner, admittedly, was sleeping, some unknown persons trespassed into the Bank and stabbed Shri.Krishnankutty, opening the rear door of the branch. Shri.Krishnankutty succumbed to injuries. This led to the suspension of the petitioner with effect from 06/06/1998. He was issued Ext.P1 memo of charges, and the misconducts alleged therein are the following:- 1) You were negligent in your duties and did not notice the fact that some unknown person/persons forcefully opened the rear door of the branch. 2) You reportedly slept during your duty hours from 9.30 pm on 31/05/98 to 1.30 am on 01/06/98 which is evident from WP(C) No.29672/2002 -2- the telltale clock dial which is not punched after 00.00 hours. 3) You were reportedly in a drunken state while you were on duty during 9.30 PM on 31/05/98 to 1.30 AM on 01/06/98 which is evident from the Medical Report of the Government Hospital, Neyyattinkara dated 01/06/98. 4) You failed to raise an alarm immediately on your knowing that your colleague Shri.G.Krishnankutty was lying in an unconscious state. It later turned out that Sri.Krishnankutty died of stab injury. 5) You failed to switch on the UPS provided for emergency light in the branch when there was power failure due to removal of power fuse by the culprit(s).” It was stated that the above lapse on his part were acts of gross misconduct as provided under Clause 19.5(c) drunkenness, 19.5(e) willful disobedience/insubordination and 19.5(j) negligence, and punishable under clause 19.6 of the Bipartite Settlement. The petitioner submitted Ext.P2 reply. While proceedings were pending, the petitioner attained the age of superannuation on 31/07/1998. At that stage, the Manager of the Branch issued Ext.P11 dated 28/07/1998 permitting the petitioner to retire from service and clarifying that the disciplinary action already initiated will be continued under the Pension Regulations. Enquiry was held. In Ext.P3 report submitted by the Enquiry Officer, charge No.2 was held partially proved, and the other charges were held proved. The WP(C) No.29672/2002 -3- report was forwarded to the petitioner on the cover of letter dated 25/03/1999, and the petitioner submitted Ext.P4 representation against the findings of the Enquiry Officer. 2. The Disciplinary Authority passed Ext.P5 order dated 24/01/2000 concurring with the findings of the Enquiry Officer and holding the petitioner guilty of the charges alleged against him as proved in Ext.P3 report. It was ordered that regarding the punishments to be imposed, a decision will be taken by the appropriate authority. Subsequent to that the Managing Director issued Ext.P6 preliminary order dated 18/02/2000 stating that considering the grave misconducts proved against the petitioner, he proposed to withdraw permanently the pension payable to the petitioner under Regulation 43 of the Pension Regulations, and the petitioner was called upon to submit his explanation to the said proposal. The petitioner submitted Ext.P7 explanation. The explanation was considered and the Managing Director issued Ext.P8 final order dated 03/05/2000 ordering that the pension of the petitioner shall be withheld permanently in terms of Clause 43 of the Pension Regulations. The petitioner filed Ext.P9 dated 13/07/2000, describing it as an appeal, addressed to the Chairman WP(C) No.29672/2002 -4- of the State Bank of India. Ext.P9, apparently was forwarded to the Deputy General Manager of the State Bank of Travancore, who gave Ext.P10 reply dated 14/10/2000 justifying the action. It was thereupon that this writ petition is filed seeking to quash Exts.P6, P8 & P10 and for a declaration that the petitioner is eligible for pensionary benefits. 3. The contention raised by the learned counsel for the petitioner is that in view of Clause 48 of the Pension Regulations, proceedings having been initiated by the Disciplinary Authority ought to have been continued and concluded by the Disciplinary Authority itself and that therefore, Ext.P8 order of the Managing Director is illegal. It is also his contention that the petitioner having been proceeded against for gross misconducts as defined in Clauses 19.5(c), (e) & (j), punishment could have been imposed under Clause 19.6 of the Bipartite Settlement only, and that Ext.P8 issued under the provisions of the Pension Regulations is illegal. It is also his case that he having been proceeded against only for gross misconducts, the consequences for commission of grave misconduct as provided under Regulation 43 of the Pension Regulations ought not have been imposed on him. WP(C) No.29672/2002 -5- 4. While dealing with the contentions on its merits, it should be noticed that though the petitioner was charge sheeted while in service, during the pendency of the disciplinary action, he attained the age of superannuation, and was allowed to retire with effect from 31/07/1998 subject to continuance of the disciplinary proceedings. True, as contended by the learned counsel for the petitioner, by Ext.P1, the petitioner was charge sheeted for various misconducts under Clause 19 of the Bipartite Settlement. If an employee in his service is found to have committed misconducts as above, the punishments that could be imposed on such an employee are those provided in the Bipartite Settlement. However, such punishments like removal, dismissal etc. cannot be imposed on an employee, once he has ceased to be in employment, which in this case has happened on 31/07/1998, when the petitioner retired from services on attaining the age of superannuation. In such a case, what is permissible to be imposed on a pensioner are those provided in Clauses 43 & 48 of the Pension Regulations. Clause 43 of the Pension Regulations provides that the competent authority may, by order in writing, withhold or withdraw pension or a part thereof, whether permanently or for a specified date, if the WP(C) No.29672/2002 -6- pensioner is convicted of a serious crime or criminal breach of trust or forgery or acted fraudulently or is found guilty of a grave misconduct. The expression “grave misconduct” has been inclusively defined in Clause 46(2)(b) of the Pension Regulations as includes commission of offences mentioned in Section 5 of the Official Secrets Act etc. 5. Clause 48 of the Pension Regulations provides for recovery of pecuniary loss caused to the Bank, if in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service. Therefore, while Clause 43 deals with withholding or withdrawal of pension if a pensioner is convicted for the offences mentioned therein or is found guilty of grave misconduct, Clause 48 deals with recovery of pecuniary loss caused to the Bank in the circumstances mentioned therein. In this case, there is no case for the bank to have suffered any pecuniary loss caused to it. If that be so, Clause 48 has no relevance. In the enquiry that was held, if a pensioner is found to have committed gross misconducts, what is relevant is Clause 43, which enables the competent authority to withhold or WP(C) No.29672/2002 -7- withdraw pension or a part thereof. Therefore, in view of the retirement of the petitioner, competent authority was perfectly justified in passing order under Clause 43 of the Pension Regulations. 6. The learned counsel for the petitioner submits that he was proceeded against by the Disciplinary Authority for gross misconducts, and that Clause 43 applies in a case of grave misconduct, and therefore Clause 43 has no relevance in his case. The expression “grave misconduct” is defined in the Pension Regulations by an inclusive definition. Therefore, any misconduct, which is grave in common parlance is covered by the expression “grave misconduct”. Therefore, the fact that what was described in Ext.P1 is a gross misconduct, does not mean that those misconducts are grave did not enable the competent authority to initiate action against the petitioner. 7. The learned counsel for the petitioner then contended that under the proviso to Clause 48, the departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be continued and concluded by the authority by which it was commenced in the same manner as if the WP(C) No.29672/2002 -8- employee had continued in service. On this basis, the learned counsel contended that the Disciplinary Authority alone could have concluded the proceedings. This argument also lacks any substance. The Disciplinary Authority is entitled to initiate action against the petitioner for misconducts, and for imposing punishment as provided under the Bipartite Settlement. During the pendency of the proceedings, since the petitioner attained the age of superannuation and retired from service, it was not possible to have imposed any punishment as provided in the Bipartite Settlement, and as already found, what was permissible was to have proceeded only under Clause 43 of the Pension Regulations. Clause 43 confers power only on the competent authority, and the term “competent authority” is defined in Clause 2(h) of the Pension Regulations, as the authority appointed by the Board for the purpose of the Pension Regulations. Proceedings show that the Managing Director is the competent authority as per the Pension Regulations. If so, only such competent authority could have ordered withdrawal or withholding of pension, and if the Disciplinary Authority passed an order under Clause 43, the same would have been without jurisdiction. Therefore, this argument of WP(C) No.29672/2002 -9- the learned counsel is also devoid of any substance. A reading of the charge memo shows that the petitioner being a Security Guard, under the influence of alcohol slept while on duty, and he did not even know the door of the Bank was opened, and his colleague was stabbed resulting in his death. This certainly is a very grave misconduct which was proved in a proper enquiry. If the competent authority, having regard to the facts, passed an order withholding or withdrawing his pension in full, I am not persuaded to think that the said order is a disproportionate one shocking the conscience of this Court, warranting interference under Article 226 of the Constitution of India. This original petition fails, and is accordingly, dismissed. (ANTONY DOMINIC, JUDGE) jg