IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 2ND DECEMBER,2009 / 11TH AGRAHAYANA, 1931 WA.No. 2623 of 2009() --------------------- AGAINST THE JUDGEMENT IN OP.29672/2002 Dated 23/10/2009 .................... APPELLANT(S): PETITIONER ------------------------ P.PRABHAKARAN NAIR,(SECURITY GUARD, STATE BANK OF TRAVANCORE,NEYYATTINKARA BRANCH, RETIRED ON31.07.1998),LAKSHMI NIVAS,PULLENKUZHY, MELPALA.P.O,K.K.DISTRICT,PIN-629 152. BY ADV. SRI.K.P.RAJEEVAN RESPONDENT(S): RESPONDENTS -------------------------- 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. BY SRI. T.P.M. IBRAHIM KHAN ASST. SOLICITOR GENERAL-R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 19/11/2009, THE COURT ON 2.12.2009 DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 2623 OF 2009 --------------------------------------------- Dated this the 2nd day of December, 2009 JUDGMENT Ravikumar, J. The appellant is the petitioner. He was a security guard in the State Bank of Travancore. The Writ Petition was filed mainly with the prayers to quash Exts.P6, P8 and P10 and for a declaration that he is eligible for pensionary benefits and also for consequential reliefs. 2. The circumstances that culminated in the issuance of the said impugned orders and consequential disentitlement of pensionary benefits may be briefly stated as hereunder: The appellant/petitioner and one Krishnankutty were the security guards on duty at Neyyattinkara branch of the State Bank of Travancore on 31.5.1998. In fact, the duty time of the appellant was from 9.30 p.m. on 31.5.1998 to 1.30 a.m. on 1.6.1998. During that midnight, some miscreants broke open the rear door and trespassed into the bank and stabbed the co-security guard Sri. Krishnankutty. The appellant was dead asleep under the influence of alcohol. The said Krishnankutty later succumbed to the injuries. That led to the suspension of the appellant W.A. NO. 2623/2009 2 with effect from 6.6.1998. Later, he was issued with Ext.P1 memo of charges whereby certain specific misconducts were alleged against him as hereunder: i. 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. ii. 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 the telltale clock dial which is not punched after 00.00 hours. iii.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. iv.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. v. 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 specifically alleged that on account of the aforesaid lapses on his part, he had committed gross misconduct under Clause 19.5(c) drunkenness, 19.5(e) willful disobedience/insubordination and 19.5(j) negligence and, therefore, punishable under Clause 19.6 of the Bipartite W.A. NO. 2623/2009 3 Settlement. In response to Ext.P1 memo of charges, the appellant/petitioner submitted Ext.P2 reply. But, the disciplinary proceedings continued against him and pending the disciplinary proceedings, the appellant attained the age of superannuation on 31.7.1998. As per Ext.P11 dated 28.7.1998, the appellant was informed that after his attainment of the age of superannuation on 31.7.1998 and consequential retirement with effect from that date, the disciplinary action initiated against him would be continued according to the Pension Regulations. Enquiry proceedings thus continued for the said purpose and on its culmination, Ext.P3 report was submitted. As per Ext.P3, the second charge was held as partly proved and all the other charges were held as proved. A copy of the same was furnished to the appellant/petitioner and thereupon he submitted Ext.P4 representation against the findings of the enquiry officer. After perusing the entire enquiry proceedings, the enquiry report and Ext.P4 representation, the Disciplinary Authority had concurred with the findings of the enquiry officer. He was informed as per Ext.P5 that appropriate decision thereon would be taken by the appropriate authority. Accordingly, Ext.P6 preliminary order dated 10.2.2000 was passed by the Managing Director, State Bank of Travancore. As per Ext.P6, the appellant was informed that considering the grave misconducts proved against him, it was proposed to W.A. NO. 2623/2009 4 withdraw permanently the pension payable to him under Regulation 43 of the Pension Regulations and was called upon to show cause why the said proposed action should not be taken. Subsequently, after considering Ext.P7 explanation submitted by the appellant, the Managing Director had passed Ext.P8 final order dated 3.5.2000 permanently withholding the pension payable to the appellant in terms of Clause 43 of the Pension Regulations. Aggrieved by Ext.P8 order, the appellant filed Ext.P9 appeal dated 13.7.2000. It was addressed to the Chairman, State Bank of India. Ext.P9 was then forwarded to the Deputy General Manager of the State Bank of Travancore who bestowed careful consideration of the entire aspects and passed Ext.P10 dated 14.10.2000. As noticed hereinbefore, the Writ Petition was filed in the said circumstances assailing Exts.P6, P8 and P10 and for consequential declaration and reliefs. After appreciating the rival contentions on merits, the learned Single Judge dismissed the Writ Petition. Feeling aggrieved by the same, this Writ Appeal has been filed. 3. We heard Sri. K.P. Rajeevan, learned counsel appearing for the appellant, Sri. P. Ramakrishnan, learned counsel for respondents 3 to 6 and Sri. T.P.M. Ibrahim Khan, learned Assistant Solicitor General for the first respondent. W.A. NO. 2623/2009 5 4. Learned counsel for the appellant raised several contentions to attack Exts.P6, P8 and P10. It was contended that in view of Clause 48 of the Pension Regulations, the disciplinary proceedings initiated ought to have been continued and concluded by the Disciplinary Authority itself and the failure to follow the said course of action rendered Ext.P8 illegal. Further, it was contended that having proceeded against him for gross misconducts as defined in Clauses 19.5(c), 19.5(e) and 19.5(j) of the Bipartite Settlement, punishment should have been imposed only under Clause 19.6 of the Bipartite Settlement and, therefore, Ext.P8 issued in terms of the provisions under the Pension Regulations is illegal. Yet, another contention was that having proceeded against him only for gross misconducts, the consequences for commission of grave misconduct as provided under Clause 43 of the Pension Regulations ought not to have been imposed on him. During the course of argument, learned counsel for the appellant had also raised another contention. According to him, Clause 46(2)(b) of the Pension Regulations defines grave misconduct and, therefore, only the commission of such acts falling under that definition alone would constitute grave misconduct. In this case, even the respondents do not have a case that the appellant had committed any misconduct, as defined in Clause 46(2)(b) of the Pension Regulations and, W.A. NO. 2623/2009 6 therefore, there was no reason or justification for holding him guilty for 'gross misconduct'. The learned counsel for the third respondent reiterated the contentions raised before the learned Single Judge. 5. In order to appreciate and to have a proper consideration of the aforesaid contentions, certain crucial aspects require narration. Admittedly, Ext.P1 was issued and disciplinary proceedings were thus initiated while the appellant was in service. During the pendency of the proceedings he attained the age of superannuation on 31.7.1998. He was allowed to retire, but he was specifically informed that the disciplinary proceedings initiated against him would be continued under the provisions of the Pension Regulations. Indisputably, a punishment could be imposed only on a serving employee and the retirement of an employee on attaining the age of superannuation would place him beyond the reach of disciplinary jurisdiction of the employer. However, that will not and cannot bring forth an abrupt termination of the proceedings initiated against the employee while in service and it is well within the power of the employer to continue with the proceedings for withholding or withdrawing the pensionary benefits, if such action is permissible. There is no dispute in this case that Clause 45 of the Pension Regulations authorises the competent authority to follow the procedures in the W.A. NO. 2623/2009 7 Bipartite Settlement for the purpose of withdrawing or withholding pension or part thereof, whether permanently or for a specified period.. Clause 43 of the Pension Regulations provides that the competent authority may by order in writing , withhold or withdraw the pension or part thereof, permanently or for a specified date, if the 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 term 'competent authority' has been defined in Clause 2(h) of the Pension Regulations as the authority appointed by the Board for the purpose of Pension Regulations. 6. We may, now, deal with the aforesaid contentions raised before us. According to us, it needs no second argument for rejecting the contentions raised by the learned counsel for the appellant that the proceedings initiated by the Disciplinary Authority ought to have been continued and concluded by the Disciplinary Authority itself. The incontrovertible facts obtained in this case would reveal that during the pendency of the disciplinary proceedings viz. on 31.7.1998, the appellant had attained the age of superannuation and, therefore, he was informed that the proceedings would be continued under the Pension Regulations. Retirement of an employee would invariably take him beyond the reach of W.A. NO. 2623/2009 8 disciplinary jurisdiction of the concerned employer. Therefore, in view of the admitted facts, the said contentions raised on behalf of the appellant are absolutely bereft of any basis. The challenge against Ext.P8 order that the punishment should have been imposed only under Clause 19.6 of the Bipartite Settlement also cannot hold good in view of the aforesaid settled position. Whether Ext.P8 order saddling the appellant/petitioner with consequences for commission of grave misconduct, as provided under Clause 43 of the Pension Regulations is correct or not is the remaining question. 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 acted fraudulently during the period of his service. In this case, the respondents do not have a case that the Bank sustained pecuniary loss and, therefore, Clause 48 of the Pension Regulations cannot have any relevance in the context of the case. The grave charges levelled against the appellant as per Ext.P1 have already been extracted above. In the context of the said allegations levelled as per Ext.P1, the reply of the petitioner as per Ext.P2 assumes relevance, which insofar as it is relevant, reads thus: “And, it is true that I was in such a state of health conditions, that I was not aware of what was happening. But I had not consumed liquor while on duty. It is true that I had consumed small W.A. NO. 2623/2009 9 quantity of liquor out of my eligible military quota in the afternoon, but I can assure you that I had not been under its influence, while I was on duty. I could not raise the burglar alarm or switch on the UPS as it was dark when I was aware of the situation.” 7. Ext.P3 is the enquiry report. The appellant did not have a grievance with regard to the procedures followed by the enquiry officer. As per Ext.P3, charge No.2 levelled against the appellant was held as partly proved and all the other charges were held as proved. The Disciplinary Authority after a careful consideration of the enquiry proceedings, Ext.P3 enquiry report and Ext.P4 representation of the appellant agreed with the findings of the enquiry officer. The reply made by the appellant/petitioner as per Ext.P2 and Ext.P3 report would undoubtedly show that the appellant was on duty on 31.5.1998. The co- security guard was stabbed and he later succumbed to the injuries. Ext.P3 would reveal that the appellant was dead asleep after consuming alcohol and he had utterly failed to do what was required of him as a security guard. The contention that since the proceedings have been converted to one under the Pension Regulations, he could be held guilty of grave misconduct only if he was found to have committed grave misconduct as defined under Clause 46(2)(b) of the Pension Regulations is only a claptrap. A bare perusal of the definition of grave misconduct under W.A. NO. 2623/2009 10 Clause 46(2)(b) of the Pension Regulations would reveal that the definition is inclusive in nature. An inclusive definition can only be extensive and cannot be exhaustive. The very charge levelled against the appellant in Ext.P1 would reveal that the misconducts alleged against him were clearly defined under the various clauses of the Bipartite Settlement. The very purpose of issuance of a charge sheet is to let the delinquent know about the charges which he has to face and defend. In this case, the appellant cannot be heard to contend that the misconduct alleged against him is not defined under the Bipartite Settlement that governs the conditions of service of the employees of the Bank. As already held, the definition of grave misconduct under Clause 46(2)(b) of the Pension Regulations is only an inclusive definition and, therefore, the action on the part of the authorities concerned in taking the alleged and proved acts of the appellant/petitioner as grave misconduct cannot be said to be incorrect. Even if the said definitions under the Bipartite Settlement are taken as inadmissible or unacceptable in the context of the case, that cannot save the situation for the appellant, in view of our finding that the definition under Clause 46(2)(b) of the Pension Regulations is only inclusive. Misconduct would include lapses to do what are required of a person to be done. Such omission to do what is required of a person to be done may, therefore, constitute misconduct even if the said person has not W.A. NO. 2623/2009 11 acted wilfully or maliciously. In other words, the word 'misconduct' covers any conduct which in any way renders a man unfit for his office. A gross negligence in performance of duty may not involve mens rea, but may still constitute misconduct in service jurisprudence. Viewing the very serious allegations raised and proved against the appellant at any angle, it cannot be said that they would not constitute grave misconduct. In fact, according to us, the Bank authorities have rightly held the misconducts proved against the appellant as grave misconducts. In terms of the definition of the competent authority as defined under Clause 2(h) of the Pension Regulations, the authority of the Managing Director as competent authority to pass Ext.P8 cannot be impeached. As already held, Clause 48 of the Pension Regulations has no application in view of the facts obtained in this case and what is applicable is only Clause 43 of the Pension Regulations. The impugned order Ext.P8 would reveal that the order of withholding of pension payable to the appellant permanently is based on a finding that the appellant is guilty of grave misconduct. As per Ext.P10, the competent authority confirmed Ext.P8 order. The appellant has failed to show that the said orders are perverse or illegal warranting any interference. In fact it was based on such a finding that the learned Single Judge declined to accept the contentions of the appellant/petitioner and dismissed the Writ Petition. W.A. NO. 2623/2009 12 8. We have already found that the impugned orders are legal and they do not suffer from any illegality. Consequently, the challenge against the judgment of the learned Single Judge is also liable to fail. The appeal is devoid of any merit and it is accordingly dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 2623/2009 13 KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. W.A. NO.2623/2009 JUDGMENT 2nd December, 2009