STATE BANK OF INDIA & ORS versus KAMAL KISHORE PRASAD
[2023] 1 S.C.R. 893, Supreme Court of India, 2023
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
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STATE BANK OF INDIA & ORS.
v.
KAMAL KISHORE PRASAD
(Civil Appeal No. 175 of 2023)
JANUARY 09, 2023
[KRISHNA MURARI AND BELA M. TRIVEDI, JJ.]
Service Law – SBIOSR, 1992 – Rules 19(1) & 19(3) –
Dismissal from Service – Respondent was dismissed from service as
per order dated 11.08.1999 by the Appointing Authority – Writ
petition by the respondent – Single Bench of the High Court by
order dated 26.03.2003 set aside the order of the dismissal –
Division Bench of the High Court stayed the operation of order
passed by the Single Bench, however, finally the LPA was dismissed
on 22.04.2010 – Meanwhile, respondent attained the age of
superannuation on 30.11.2009 – SLP filed by the appellant-bank
was allowed with the direction to the Appointing Authority to take
appropriate decision – Pursuant thereto, the Appointing Authority
issued a show-cause notice to the respondent – After granting
personal hearing, the penalty of dismissal from service from
11.08.1999 was imposed – Respondent again approached High
Court, which allowed the petition and set aside the order of dismissal
– On appeal, held: Order dated 26.03.2003 of Single Bench setting
aside the order of dismissal passed by the Appointing Authority
having been stayed by the Division Bench, the respondent could
not be deemed to have continued in service, and also when he had
attained the age of superannuation on 30.11.2009 – Thereafter,
the order of Division Bench dated 22.04.2010 passed in the LPA
was set
aside by Supreme Court while allowing the appeal filed by
the Appellant-Bank vide the order dated 25.11.2013, again it could
not be said that the respondent was continued in service, till he
attained the age of superannuation – Order of Appointing Authority
dismissing the respondent from service after granting opportunity
of hearing to the respondent was in consonance with the direction
given by Supreme Court and could not be said to be arbitrary illegal
or in violation of Rule 19(3) of the said Rules – Impugned order of
the High Court setting aside the order of dismissal set aside.
Allowing the appeal, the Court
HELD: 1. The disciplinary proceedings against the
respondent were already initiated and had stood concluded,
   [2023] 1 S.C.R. 893
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culminating into dismissal from service as per the order dated
11.08.1999 passed by the Appointing Authority. The said order
was challenged by the respondent by filing the Writ Petition,
which came to be allowed by the Single Bench on 26.03.2003
whereby the order of dismissal was set aside, nonetheless the
Appellant-Bank having preferred the LPA No. 378 of 2003, the
Division Bench had stayed the operation and implementation of
the said order passed by the Single Bench on 09.05.2003. The
said LPA came to be dismissed on 22.04.2010, in the meantime
on 30.11.2009, the respondent attained the age of superannuation
i.e., during the time, when the operation of the order of Single
Bench was stayed. Thus, the order of Single Bench setting aside
the order of dismissal passed by the Appointing Authority having
been stayed by the Division Bench, the respondent could not be
deemed to have continued in service, and also when he had
attained the age of superannuation on 30.11.2009. Thereafter,
the order of Division Bench dated 22.04.2010 passed in the LPA
378 of 2003 having been set aside by this Court while allowing
the appeal filed by the Appellant-Bank vide the order dated
25.11.2013, again it could not be said that the respondent was
continued in service, till he attained the age of superannuation.
[Para 11][899-D-G]
2. It was only pursuant to the direction given by this Court
vide the order dated 25.11.2013, the Appointing
Authority was
expected to hear the respondent and pass appropriate order.
This Court had kept all the contentions of all the parties open.
Hence the Appointing Authority after issuing show-cause notice
and granting opportunity of hearing to the respondent had passed
the order imposing the penalty of “Dismissal from Service” w.e.f.
11.08.1999, i.e., from the date when the first order of dismissal
was passed by the Appointing Authority. Since all the contentions
were kept open by this Court while allowing the appeal filed by
the Appellant-Bank, as such no affirmative action was expected
from the Appellant- Bank, as sought to be submitted by the learned
counsel for the respondent. The said order of Appointing
Authority dismissing the respondent from service after granting
opportunity of hearing to the respondent was in consonance with
the direction given by this Court and could not be said to be
arbitrary illegal or in violation of Rule 19(3) of the said Rules.
The impugned order of the High Court setting aside the said
order of dismissal being under misconception of facts and law
deserves to be quashed and set aside. [Para 13][900-C-F]
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CIVIL APPELLATE JURISDICTION : Civil Appeal No.175 of
2023.
From the Judgment and Order dated 01.02.2018 of the High Court
of Judicature at Patna in LPA No.2035 of 2016.
Balbir Singh, ASG, Sanjay Kapur, Ms. Megha Karnwal, Arjun
Bhatia, Lalit Rajput, Ms. Anu Sura, Ms. Akshata Joshi, Advs. for the
Appellants.
Kripa Shankar Prasad, Ms. Alisha Shaili, Ainul Ansari, Advs. for
the Respondent.
The Judgment of the Court was delivered by
BELA M. TRIVEDI, J.
1. Leave granted.
2. The present appeal is directed against the judgment and order
dated 01.02.2018 passed by the High Court of Judicature at Patna in
LPA No. 2035 of 2016, whereby the High Court has dismissed the appeal
filed by the Appellant-Bank and confirmed the order passed by the Single
Bench.
3. The short facts giving rise to the present petition are that the
respondent while posted as a Branch Manager at Marufganj Branch
and at various other branches, was found to have committed various
lapses, in respect of which he was suspended on 14.06.1993 in terms of
Rule 50A(i)(a) of SBIOSR, 1992. On the departmental proceedings
having been conducted against him, the Inquiry Authority had submitted
its report on 09.03.1998, whereby some of the allegations were found to
be proved and some were found to be partly proved. The Disciplinary
Authority agreed with some of the findings recorded by the Inquiry
Authority and called upon the respondent to make his submissions on
the same. However thereafter the matter was
sent to the Appointing
Authority, which imposed the penalty of “Dismissal from Service” as
per the order dated 11.08.1999.
4. The respondent being aggrieved by the said order had filed a
Writ Petition being no. 2739 of 2000 before the High Court which came
to be allowed by the Single Bench vide order dated 26.03.2003. The
Appellant-Bank aggrieved by the said order had filed an LPA being no.
378 of 2003. On 09.05.2003, the Division Bench stayed the
implementation of the order dated 26.03.2003 passed by the Single Bench,
however finally dismissed the said LPA vide order dated 22.04.2010. In
the meantime, the respondent attained the age of superannuation on
30.11.2009. The Appellant-Bank having filed SLP (C) No. 16541 of 2010
challenging the order dated 22.04.2010 passed by the Division Bench,
STATE BANK OF INDIA & ORS. v. KAMAL KISHORE
PRASAD
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the same came to be allowed by this Court on 25.11.2013. While allowing
the SLP, this Court observed as under:
“10. We have heard learned counsel for the parties to the lis.
11. The Writ Court while deciding the writ petition filed by the
respondent against the orders passed by the Appointing Authority
had followed the dicta of this court wherein it is said that the
person who hears the matter should necessarily pass an order.
The Division Bench of the High Court in its judgment has referred
to the subsequent decisions of this Court. In our opinion, we need
not have to refer to those decisions. It is now a well settled principle
that the person who hears the matter requires to pass an order.
12. Since, that is the view of the Learned Single Judge, we are of
the opinion that such a view cannot be taken exception to by us.
However, the Division Bench while rejecting the Letters Patent
Appeal filed by the appellant-bank has made certain observations
which in our opinion, would not arise in the matter of this nature.
Therefore, we cannot sustain the judgment and order passed by
the Division Bench of the High Court.
13. In the result, we allow this appeal and set aside the judgment
and order passed by the Division Bench of the High Court in
Letters Patent Appeal No.378 of 2003. Since we are told that the
delinquent officer has already retired from service on attaining
the age of superannuation, we now direct the Appointing
Authority
to take appropriate decision as expeditious as possible, at any rate
within two months from the receipt of copy of this order.
14. All the contentions of all the parties are kept open. Ordered
accordingly.”
5. In view of the above order passed by this Court, the Appointing
Authority issued a show-cause notice to the respondent on 06.02.2014,
to which the respondent submitted his response on 10.02.2014. The
Appointing Authority after granting personal hearing to the respondent
on 14.02.2014, passed an order on 17.02.2014 imposing upon the
respondent the penalty of “Dismissal from Service” in terms of Rule
67(J) of SBISOR w.e.f. 11.08.1999 and treating his period of suspension
as not on duty.
6. Being aggrieved by the said order passed by the Appointing
Authority, the respondent filed Departmental appeal before the Appellate
Authority on 24.02.2014, which came to be dismissed on 09.08.2014.
The respondent therefore again approached the High Court by way of
filing CWJC No. 10192 of 2014. The Single Bench of the High Court
vide the order dated 22.08.2016 allowed the said petition, and quashed
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and set aside the order of dismissal passed by the Appellant-Bank and
directed the Appellant-Bank to pay all the consequential benefits i.e.,
arrears of salary and retiral benefits within 3 months thereof. The
aggrieved appellant-bank filed LPA being no. 2035 of 2016 on 17.10.2016,
which came to be dismissed by the Division Bench vide the impugned
order dated 01.02.2018.
7. The learned ASG Mr. Balbir Singh for the Appellant-Bank
vehemently submitted that the High Court had committed gross error in
confirming the order passed by the Single Bench, and in misinterpreting
the Rule 19(1) and 19(3) of the SBIOSR, 1992. According to him, this
Court in the first round of litigation had allowed the appeal filed by the
Appellant-Bank and set aside the order passed by the Division Bench,
and while observing that the person who hears the matter requires to
pass an order, had directed the Appointing Authority to take appropriate
decision within 2 months, keeping all the contentions of the parties open.
The appointing authority, therefore had issued a show-cause notice to
the respondent and after giving him an opportunity of hearing had passed
the order of dismissal, which was wrongly set aside by the Single Bench
and by the Division Bench.
8. However, the learned counsel Mr. Kripa Shankar Prasad
appearing for the respondent submitted that an affirmative action was
expected to be taken by the Appellant-Bank in view of the order passed
by the Supreme Court on
25.11.2013, as the respondent had already
attained the age of superannuation pending the proceeding before the
High Court. He further submitted in the said order the Supreme Court
had set aside the order of Division Bench, however had agreed with the
view expressed by the Single Bench that as per the settled legal principle,
the person who hears the matter is required to pass an order. According
to him, the Supreme Court had granted the liberty only to the extent of
directing the Appointing Authority to take appropriate action in accordance
with law as the respondent had attained the age of superannuation. Under
the circumstances, the Appointing Authority was required to take steps
either to extend the service of the respondent in terms of Rule 19(1), or
to continue the disciplinary proceedings, even after the superannuation
of the respondent under Rule 19(3) of the Rules, however the Appellant-
Bank did not take recourse to any of the said rules. He further submitted
that the discretion to continue with the disciplinary proceedings had to
be exercised as an affirmative action by taking a conscious decision,
which the Appointing Authority of the Appellant-Bank had failed to take,
and on the contrary passed the order of dismissal with retrospective
effect which was not legally permissible.
STATE BANK OF INDIA & ORS. v. KAMAL KISHORE
PRASAD [BELA M. TRIVEDI, J.]
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9. Since much reliance has been placed by the learned counsel
appearing for the respondent on Rule 19(1) and 19(3) of the SBIOSR
Rules, the same are reproduced for the sake of convenience.
“19.(1) An officer shall retire from the service of the Bank on
attaining the age of fifty-eight years or upon the completion of
thirty years’ service or thirty years’ pensionable service if he is a
member of the Pension Fund, whichever occurs first.
Provided that the competent authority may, at its discretion,
extend the period of service of an officer who has attained the
age of fifty-eight years or bas completed thirty years’ service or
thirty years’ pensionable service as the case may be, should such
extension be deemed desirable in the interest of the Bank, so
however, that the service rendered by the concerned officer
beyond 58 years of age except to the extent of the period of leave
due at that time will not count for purpose of pension.
Provided further that an officer who had joined the service
of the Bank either as an officer or otherwise on or after July, 19,
1969 and attained the age of 58 years shall not be granted any
further extension in service.
Provided further that an officer may, at the discretion of
the Executive Committee, be retired from the Bank’s service after
he has attained 50 years of age or has completed 25 years’ service
or 25 years’ pensionable service as the case may be, by giving
him three months’
notice in writing or pay in lieu thereof.
Provided further that an officer who has completed 20 years’
service or 20 years’ pensionable service, as the case may be,
may be permitted by the competent authority to retire from the
Bank’s service, subject to his giving three months’ notice or pay
in lieu thereof unless this requirement is wholly or partly waived
by it.
19.(2) .......... …… ….. .......
19.(3) In case disciplinary proceedings under the relevant
rules of service have been initiated against an officer before he
ceases to be in the Bank’s service by I the operation of, or by
virtue of, any of the said rules or the provisions of these rules, the
disciplinary proceedings m’ay, at the discretion of the Managing
Director, be continued and concluded by the authority by which
the proceedings were initiated in the manner provided for in the
said rules as if the officer continues to be in service, so however,
that he shall be deemed to be in service only for the purpose of
the continuance and conclusion of such proceedings.
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Explanation: An officer will retire on the last day. of the
month in which he completes the stipulated service or age of
retirement.”
10. On the bare perusal of the said Rules it clearly transpires that
as per Rule 19(1) of the Rules, an officer could retire from the service
of the bank on attaining the age of 58 years or upon the completion of 30
years’ service or 30 years’ of pensionable service if he is a member of
the Pension Fund whichever occurs first, subject to the provisos mentioned
therein. As per the Rule 19(3), in case the disciplinary proceedings under
the relevant rules of service have been initiated against an officer before
he ceases to be in the Bank’s service by operation of, or by virtue of any
of the rules, the disciplinary proceedings may at the discretion of
Managing Director be continued and concluded, as if the officer had
continued to be in service. However, the officer in that case shall be
deemed to be in service only for the purpose of the continuance and
conclusion of such proceedings.
11. So far as the facts of the present case are concerned, the
disciplinary proceedings against the respondent were already initiated
and had stood concluded, culminating into dismissal from service as per
the order dated 11.08.1999 passed by the Appointing Authority. The said
order was challenged by the respondent by filing the Writ Petition, which
came to be allowed by the Single Bench on 26.03.2003 whereby the
order of dismissal was set
aside, nonetheless the Appellant-Bank having
preferred the LPA No. 378 of 2003, the Division Bench had stayed the
operation and implementation of the said order passed by the Single
Bench on 09.05.2003. The said LPA came to be dismissed on 22.04.2010,
in the meantime on 30.11.2009, the respondent attained the age of
superannuation i.e., during the time, when the operation of the order of
Single Bench was stayed. Thus, the order of Single Bench setting aside
the order of dismissal passed by the Appointing Authority having been
stayed by the Division Bench, the respondent could not be deemed to
have continued in service, and also when he had attained the age of
superannuation on 30.11.2009. Thereafter, the order of Division Bench
dated 22.04.2010 passed in the LPA 378 of 2003 having been set aside
by this Court while allowing the appeal filed by the Appellant-Bank vide
the order dated 25.11.2013, again it could not be said that the respondent
was continued in service, till he attained the age of superannuation.
12. The reliance placed by the learned counsel for the respondent
on Rule 19(3) of the Rules is also thoroughly misplaced in as much as
Rule 19(3) contemplates a situation, when the disciplinary proceedings
against a bank officer, have already been initiated, and are pending when
the officer ceases to be in the Bank’s service, and in that case the
STATE BANK OF INDIA & ORS. v. KAMAL KISHORE
PRASAD [BELA M. TRIVEDI, J.]
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Managing Director in his discretion may continue and conclude the
disciplinary proceedings against the officer as if the officer continues to
be in service. However, in the instant case, there was no question of
Managing Director exercising such discretion under Rule 19(3) as the
disciplinary proceedings initiated against the respondent had already
culminated into his dismissal as per the order dated 11.08.1999 passed
by the Appointing Authority. Though the said order of dismissal was set
aside by the Single Bench, the order of Single Bench had remained
stayed pending the LPA filed by the Bank; and though the LPA was
dismissed by the Division Bench, the said order in LPA was set aside by
this Court, observing that the person who hears the matter has to decide
it.
13. It was only pursuant to the direction given by this Court vide
the order dated 25.11.2013, the Appointing Authority was expected to
hear the respondent and pass appropriate order. This Court had kept all
the contentions of all the parties open. Hence the Appointing Authority
after issuing show-cause notice and granting opportunity of hearing to
the respondent had passed the order imposing the penalty of “Dismissal
from Service” w.e.f. 11.08.1999, i.e., from the date when the first order
of dismissal was passed by the Appointing Authority. Since all the
contentions were kept open by this Court while allowing the appeal filed
by the Appellant-Bank, as such
no affirmative action was expected from
the Appellant- Bank, as sought to be submitted by the learned counsel
for the respondent. The said order of Appointing Authority dismissing
the respondent from service after granting opportunity of hearing to the
respondent was in consonance with the direction given by this Court and
could not be said to be arbitrary illegal or in violation of Rule 19(3) of the
said Rules. The impugned order of the High Court setting aside the said
order of dismissal being under misconception of facts and law deserves
to be quashed and set aside.
14. In that view of the matter the impugned order passed by the
Division Bench confirming the order passed by the Single Bench, is
hereby accordingly set aside.
15. The appeal stands allowed.
Ankit Gyan
Appeal allowed.
(Assisted by : Bhavyata Kapoor and Rahul Rathi, LCRAs)