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CASE NO.: Appeal (civil)  4837 of 2005

PETITIONER: Punjab National Bank

RESPONDENT: M.L. Kalra and another

DATE OF JUDGMENT: 30/01/2008

BENCH: S.B. SINHA & HARJIT SINGH BEDI

JUDGMENT: J U D G M E N T

S.B. SINHA, J.

1.      The short question involved in this appeal, is the interpretation of  the provisions of the Punjab National Bank (Officers\022) Service  Regulations, 1979 vis-‘-vis Punjab National Bank (Employees\022) Pension  Regulations, 1995 (in short \023Pension Regulations\024), which arises out of a  judgment and order of the High Court of Delhi at New Delhi passed in  LPA No. 336 of 2002.   

2.      Respondent herein was an employee of the New Bank of India.   On or about 4th September, 1993 the said Bank was amalgamated with  the appellant bank.  A charge sheet was issued against the respondent on  19th August, 1993.  He reached the age of superannuation on 30th  November, 1994.  Appellant, however, relying on or on the basis of  Regulation 20 (3) (iii) of the National Bank (Officers\022) Service  Regulations, 1979, continued the departmental proceedings against him.   The same was completed after his retirement on 1st August, 1995.  An  order of punishment was passed by the disciplinary authority dismissing  the respondent from service on 22nd Mach, 1996, directing :-

\023Provisions of Regulation 20(3)(iii) of Punjab  National Bank Officers Service Regulations, 1979  were invoked vide letter dated 23.11.1994 and it was  inter alia made clear to Shri Kalra that though he will  cease to be in service of the bank on 30.11.1994 (on  attaining the age of superannuation) but the  disciplinary proceedings initiated against him will  continue as if he was in service until the disciplinary  proceedings are completed and final orders is passed  in respect thereof and that he will not be entitled for  payment of retirement benefits till the proceedings are  concluded and final order is passed thereon except his  own contribution to CPF.  The payment of terminal  benefits to Shri Kalra, if any, will be made keeping in  view the above order of \023dismissal\024.\024

3.      An appeal preferred thereagainst by the respondent before the  appellate authority was dismissed by an order dated 6th March, 1997  stating:-

\023The Board carefully considered the grounds of  appeal preferred by Shri M.L. Kalra along with  records of the case and after detailed discussions

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observed that the petitioner has not brought out any  case based on the merits, which warrants interference  with the decisions of the Disciplinary Authority.  As  such, the Board decided to confirm the punishment of  Major penalty of \021Dismissal\022 from service which shall  be a disqualification for future employment\022 imposed  on Shri M.L. Kalra by the Disciplinary Authority.   Shri M.L. Kalra be informed accordingly.\024

4.      In the meanwhile, the respondent was paid his provisional pension  in terms of Regulation 46 of Pension Regulations from the date of  superannuation till the date of dismissal i.e. 22nd March, 1996.  

5.      Respondent claimed that he was entitled to payment of the said  provisional pension till 6th March, 1997 i.e. till the disposal of his appeal  by the appellate authority.  On the said premise a writ petition was filed  by him.  A learned Single Judge of the High Court by an order dated 22nd  February, 2002 directed that the arrears of provisional pension also be  paid for the period during which the appeal was pending.   An intra-court  appeal filed by the appellant had been dismissed by a Division Bench of  the High Court by reason of the impugned judgment.                 The High Court in support of its order relied on a decision of this  Court in State of Maharashtra  vs.  Chandrabhan Tale : (1983) 3 SCC  387.               6.      Mr. Amarendra Sharan, learned Additional Solicitor General, in  support of the appeal submitted that the order of disciplinary proceeding  culminated in an order passed by the disciplinary authority and in that  view of the matter, the said order cannot be taken into consideration for  the purpose of payment of provisional pension.        7.      Mr. Ambhoj Kumar Sinha, learned counsel appearing on behalf of  the respondent, on the other hand, submitted that a retired person cannot  be directed to be dismissed and a distinction exists between a disciplinary  proceeding and a departmental proceeding.  As the Regulation 46, it was  urged, refers to departmental proceedings, the appellant was entitled to  payment of provisional pension till the date of determination of the  appeal.   

       Regulations 42, 45 and 46 of the Pension Regulations if read  conjointly, the learned counsel contended, would clearly show that the  delinquent employee was entitled to payment of provisional pension  subject of course to an order which may be passed by the disciplinary  authority only for withholding or revision thereof.    

8.      Clause (b) of sub-regulation (2) of Regulation 22 of the Pension  Regulations postulates that the delinquent employee would be entitled to  receive pension if he is permitted to retire or retires on attaining the age  of compulsory retirement while under suspension.               Terms and conditions of the services of an officer of the appellant- Bank are governed by the Punjab National Bank (Officers\022) Service  Regulations, 1979 ;  Regulation 20(3) (iii) whereof reads as under:-

\02320. Termination of Service

(3) (iii) The officer against whom disciplinary  proceedings have been initiated will cease to be in  service on the date of superannuation but the  disciplinary proceedings will continue as if he was in  service until the proceedings are concluded and final  order is passed in respect thereof.  The concerned

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officer will not receive any pay and/or allowance after  the date of superannuation.  He will also not be  entitled for the payment of retirement benefits till the  proceedings are completed and final order is passed  thereon except his own contribution to CPF.\024          

                9,      In this case we are not concerned with the legality or validity of the  order of dismissal passed against the respondent.  The issue before us is a  short one.   

10.     On reading the two Regulations conjointly, the question which  arises for consideration is as to whether a departmental proceeding can be  said to be a disciplinary proceeding.  We do not find any distinction in  the said term in the context of the present dispute.               11.     Regulation 22 of Pension Regulations reads as under :-       \02322. Forfeiture of service:- (1)     Resignation or dismissal or removal or  termination of an employee from the service of the  bank shall entail forfeiture of his entire past service and  consequently shall not qualify for pensionary benefits; (2)     An interruption in the service of a Bank  employee entails forfeiture of his past service, except in  the following cases, namely:- (a)     authorized leave of absence; (b)     suspension, where it is immediately followed by  reinstatement, whether in the same or a different  post, or where the bank employee dies or is  permitted to retire or is retired on attaining the  age of compulsory retirement while under  suspension; (c)     transfer to non-qualifying service in an  establishment under the control of the  Government or Bank if such transfer has been  ordered by a competent authority in the public  interest; (d)     joining time while on transfer from one post to  another.

(3)     Notwithstanding anything contained in sub- regulation (2), the appointing authority may, by order,  commute retrospectively the periods of absence without  leave as extraordinary leave.

(4)(a)  In the absence of a specific indication to the  contrary in the service record, an interruption  between two spells of service rendered by a bank  employee shall be treated as automatically  condoned and the pre-interruption service treated  as qualifying service; (b)     Nothing in clause (a) shall apply to interruption  caused by resignation, dismissal or removal from  service or for participation in a strike:         Provided that before making an entry in the  service record of the Bank employee regarding  forfeiture of past service because of his participation in  strike, an opportunity of representation may be given to  such bank employee.\024

12.     When an order of dismissal or removal is passed, clause (1) of  Regulation 22 would apply.  Clause (2) will have application only when

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an interruption in service takes place.   

13.     Services of an employee can be validly terminated only once.   Only because an appeal has been provided against an order of dismissal  from services, the same ipso facto would not mean that the same would  remain under animated suspension.  

14.     The issue is covered by large number of decisions of this Court.  In  Syndicate Bank Ltd. vs. K.R.V. Bhat : [1968] 1 SCR 327 this Court held  that an order of dismissal or discharge can be passed only once  irrespective of when the finality in relation thereto is reached and all that  the appellate authority considers is whether the order of dismissal  requires to be sustained or modified.                 In P.H. Kalyani  vs.  M/s. Air France Calcutta : [1964] 2 SCR 104  this Court observed that the operation of order of punishment made by  the employer does not depend on its confirmation by the Court.

16.     We may also notice that in a recent judgment this Court, in  Ramesh Chandra Sharma  vs. Punjab National Bank and another: 2007  (8) SCALE 240, upon taking into consideration both the provisions of the  Service Regulations as also the Pension Regulations, opined :-       \02317. Where a proceeding is initiated for withholding  or withdrawal of pension, Regulation 43 of the  Pension Regulations would be attracted.  But  provisions of the said Regulation if read in its entirety  clearly go to show that an officer would not qualify  for pensionary benefits, if inter alia, he is dismissed  from service.

       Regulation 48 empowers the Bank to recover  pecuniary loss caused to it from the pensionary  benefits.  Regulation 20(3)(iii) of the Discipline and  Appeal Regulations must be read in conjunction with  the Pension Regulations.  Where the employees are  pension optees, Regulation 48(1) shall apply.  In any  event, if an officer is removed or dismissed from  service under Regulation 4 of the (Discipline &  Appeal) Regulations, the Bank need not take recourse  to Regulation 48 of the Pension Regulations as  Regulation 22 thereof would be attracted.

       We are, therefore, of the opinion that the High  Court committed a manifest error in passing the  impugned judgment.\024

17.     The decision of this Court in Chandrabhan Tale (supra) was  rendered in an absolute different fact situation.  Therein the question  which arose for consideration was as to whether subsistence allowance is  payable even during the pendency of the appeal.  In the facts and  circumstances of that case, it was held that the subsistence allowance  should be granted.  We do not think that any ratio was laid down therein.   Upon dismissal from services, the employee ceases to be in employment  with effect from the date when the original order had been passed and not  from the date of the order of the appellate authority subject, of course, to  the condition that the original order is affirmed.        18.     Reliance has been placed by the learned counsel for the respondent  on Union of India and others  vs.  J. Ahmed : (1979) 2  SCC 286.  We do  not find any application of the said decision in the instant case which is  merely an authority for the proposition as to what would constitute a  \023misconduct\024.

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     19.     For the reasons abovementioned the impugned judgment cannot be  sustained and it is set aside accordingly.   The Appeal is allowed.  But in  the facts and circumstances of the case, there will be no order as to costs.