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CASE NO.: Review Petition (civil)  748 of 2007

PETITIONER: UCO Bank & Anr

RESPONDENT: Rajinder Lal Capoor

DATE OF JUDGMENT: 31/03/2008

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: JUDGMENT ORDER  

REVIEW PETITION (C) NO. 748 OF 2007 IN CIVIL APPEAL NO. 2739 OF 2007

S.B. SINHA, J :           1.     Review Petitioners herein have filed this application for review of this  Court’s judgment and order dated 18.05.2007 passed in Civil Appeal No.  2739 of 2007. 2.      Respondent was working with the appellant \026 Bank.  Almost  immediately prior to his retirement, he was asked to show cause as to why  action under the UCO Bank (Officers’) Service Regulations, 1979 (for short  "the 1979 Regulations") should not be taken against him by notices dated  24.10.1996 and 30.10.1996. 3.      Respondent reached his age of superannuation on 30.11.1996.  A  disciplinary proceeding was initiated against him immediately thereafter.  A  charge sheet, however, was issued only on 13.11.1998.  He was dismissed  from service upon initiating a departmental proceedings.   4.      A writ petition filed by him was allowed.  Petitioner \026 Bank filed an  appeal upon grant of special leave thereagainst.  One of the questions which  arose for consideration before this Court was whether in absence of any  chargesheet having been issued, the disciplinary proceedings could be said  to have been initiated in view of the decisions of this Court in Union of India  etc. etc. v. K.V. Jankiraman, etc. etc. [AIR 1991 SC 2010], Union of India  and Ors. v. Sangram Keshari Nayak [2007 (6) SCALE 348] and Coal India  Ltd. and Ors. v. Saroj Kumar Mishra [2007 (5) SCALE 724].   5.      When the said question was raised, the 1979 Regulations were not  before us.  This Court asked the learned counsel to handover the regulations  by the next day.  It was not complied with.           However, on 18.05.2007 when the judgment was to be delivered, a  prayer was made to defer the pronouncement of the judgment so as to enable  the appellants to place the regulations.  The said prayer was declined and the  judgment was pronounced.  It is in the aforementioned factual backdrop, this  review petition has been filed. 6.      In the review application, the petitioner inter alia seeks to bring to our  notice the relevant provisions of the 1979 Regulations so as to contend that  by reason thereof, a legal fiction has been created to the effect that a  disciplinary proceedings shall be deemed to be pending, if the delinquent  officer was placed under suspension or any notice was issued to him to show  cause why any disciplinary proceedings shall not be initiated against him  and will be deemed to be pending untill the final orders are passed by the  competent authority.  7.      Indisputably, the appellants have framed three different regulations  governing the conditions of service of its employees.   8.      The UCO Bank Officer Employees’ (Discipline and Appeal)  Regulations, 1976 (for short "the 1976 Regulations) have been framed by

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reason of Section 19 of the Banking Companies (Acquisition and Transfer of  Undertakings) Act, 1970 in consultation with the Reserve Bank of India and  with the previous sanction of the Central Government.           Regulation 4 of the 1976 Regulations provides for the penalties.   Regulation 6 provides for the procedure for imposing major penalties.  Sub- regulation (1) of Regulation 6 provides that no proceeding for imposing  major penalties shall be initiated except after an inquiry is held in  accordance with the provisions thereof.  Sub-regulation (2) of Regulation 6  provides that when the disciplinary authority is of the opinion that there  were grounds for inquiring into the truth of any imputation of misconduct,  an inquiry officer is to be appointed.  Sub-Regulations (3), (4) and (5) of  Regulation 6 read as under: "(3)    Where it is proposed to hold an inquiry, the  Disciplinary Authority shall frame definite and  distinct charges on the basis of the allegations  against the officer employee and the articles of  charge, together with a statement of the  allegations, on which they are based, shall be  communicated in writing to the officer employee,  who shall be required to submit within such time  as may be specified by the Disciplinary Authority  (not exceeding 15 days) or within such extended  time as may be granted by the said Authority, a  written statement of his defence.

(4)     On receipt of the written statement of the  officer employee, or if no such statement is  received within the time specified, an enquiry may  be held by the Disciplinary Authority itself, or if it  considers it necessary so to do appoint under sub- regulation (2) an Inquiring Authority for the  purpose:

Provided that it may not be necessary to hold an  inquiry in respect of the articles of charge admitted  by the officer employee in his written statement  but shall be necessary to record its findings on  each such charge.

(5)     The Disciplinary Authority shall, where it is  not the inquiring authority, forward to the  inquiring authority:

(i)     a copy of the articles of charges and  statement of imputations of misconduct or  misbehaviour;\005"

9.      In exercise of the same power, the Board of Directors have also  framed the UCO Bank Officer Employees (Conduct) Regulations, 1976 (for  short "the 1976 Conduct Regulations") providing for the code of conduct for  the bank officers.  Any breach in terms of Regulation 24 of the 1976  Conduct Regulations is deemed to constitute a misconduct punishable under  the 1976 Regulations. 10.     The 1979 Regulations were also framed under the same power by the  Board of Directors of the Bank.  The 1979 Regulations deal with different  terms of the employment of service.  Chapter IV deals with appointments,  probation, confirmation, promotions, etc.  Chapter V deals with allowances.   Chapter VI deals with medical aid, residential accommodation, etc.  Chapter  VII provides for the kinds of leave to which an employee is entitled to.   Chapter VIII provides for traveling allowances, etc.  Chapter IX provides for  provident fund and pension.  Chapter X provides for transfer of employees  from one branch to another.  Chapter XI provides for power to implement  regulations.   11.     We are concerned herein with Regulation 20 of the 1979 Regulations  which finds place in Chapter IV.  As noticed hereinbefore, the heading of the

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said Regulation is ’termination of service’.  Regulation 20 ex facie does not  deal with termination of service by way of misconduct which is governed by  the 1976 Regulations and the 1976 Conduct Regulations.   12.     Regulation 20 of the 1979 Regulations reads as under: "20(1)(a) Subject to sub-regulation 3 of regulation  16 where the Bank is satisfied that the performance  of an officer is unsatisfactory or inadequate or  there is a bonafide suspicion about his integrity or  his retention in the Bank’s service would be  prejudicial to interests of the Bank, and where it is  not possible or expedient to proceed against him as  per the disciplinary procedure, the Bank may  terminate his services on giving him three months’  notice or emoluments in lieu thereof in accordance  with the guidance issued by the Government from  time to time.

(b)     Order of termination under this sub- regulation shall not be made unless such officer  has been given a reasonable opportunity of making  a representation to the Bank against the proposed  order.

(c)     The decision to terminate the services of an  officer employee under sub-regulation (a) above  will be taken only by the Chairman and Managing  Director.

(d)     The officer employee shall be entitled to  appeal against any order passed under sub- regulation (a) above by preferring an appeal within  15 days to the Board of Directors of the Bank.  If  the appeal is allowed, the order under sub- regulation (a) shall stand cancelled.

(e)     Where an officer employee whose services  have been terminated and who has been paid an  amount of three months emoluments in lieu of  notice and on appeal his termination is cancelled,  the amount paid to him in lieu of notice shall be  adjusted against the salary that he would have  earned, had his services not been terminated and  he shall continue the Bank’s employment on same  terms and conditions as if the order of termination  had not been passed at all.

(f)     An officer employee whose services are  terminated under sub-regulation (a) above shall be  paid Gratuity, Provident Fund including  employer’s contribution and all other dues that  may be admissible to him as per rules not  withstanding the years of service rendered.

(g)     Nothing contained hereinabove will affect  the Bank’s right to retire an officer employee  under Regulation 19(1).

2.      An officer shall not leave or discontinue his  service in the Bank without first giving a notice in  writing of his intention to leave or discontinue his  service or resign.  The period of notice required  shall be 3 months and shall be submitted to the  competent authority as prescribed in these  regulations.

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Provided further that the competent authority may  reduce the period of 3 months or remit the  requirement of notice.

3(i)    An officer against whom disciplinary  proceedings are pending shall not leave/  discontinue or resign from his service in the bank  without the prior approval in writing of competent  authority and any notice or resignation given by  such an officer before or during the disciplinary  proceedings shall not take effect unless it is  accepted by the competent authority.

(ii)    Disciplinary proceedings shall be deemed to  be pending against any employee for the purpose  of this regulation if he has been placed under  suspension or any notice has been issued to him to  show cause why disciplinary proceedings shall not  be instituted against him and will be deemed to be  pending until final orders are passed by the  competent authority.

(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 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 contributions to CPF."   13.     Sub-regulation (1) of Regulation 20 of the 1979 Regulations, thus,  deals with termination of service where the performance of an officer is  unsatisfactory or inadequate or where there is a bona fide suspicion about his  integrity or where his retention in the bank’s service is prejudicial to  interests of the disciplinary procedure.  Other Sub-regulations of Regulation  20 provides for the mode and manner in which such termination may be  effected as also his entitlement to prefer an appeal thereagainst and other  benefits to which he would be otherwise entitled to. 14.     Sub-regulation (2) of Regulation 20 of the 1979 Regulations places an  embargo on an official to leave or discontinue his service of the bank  without giving a notice in writing.  It prescribes a period of notice.  Sub- regulation (3) of Regulation 20, however, places an embargo on an officer to  leave or discontinue or resign from service without the prior approval in  writing of the competent authority and a notice or resignation given by such  an officer before or during the disciplinary proceedings shall not take effect  unless it is accepted by the competent authority.           Clause (ii) of Sub-regulation (3) of Regulation 20 must be considered  from that aspect of the matter.  It raises a legal fiction.  Such legal fiction has  been raised only for the purpose of "this Regulation" and for no other, which  would mean Regulation 20(1).  The final orders which are required to be  passed by the competent authority although indisputably would be in  relation to the disciplinary proceedings but evidently it is for the purpose of  accepting resignation or leaving or discontinuing of the service by the  employee concerned or grant of approval thereof.  Clause (ii) of Sub- regulation (3) of Regulation 20 in effect and substance acts as a proviso to  Clause (i) thereof.   15.     Clause (iii) of Sub-regulation (3) of Regulation 20 is an independent  provision.  It provides for continuation of the disciplinary proceedings.  Such  disciplinary proceedings indisputably for the purpose of applicability of Sub- regulation (3) must have been initiated in terms of the 1976 Regulations.  

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16.     It is worth noticing the distinction between terminologies "proceeding  pending" or "proceeding initiated".  Clause (ii) of Sub-regulation (3) of  Regulation 20 defines what would be pending, viz., for the purpose of  attracting Clause (i) thereof.           A disciplinary proceeding is initiated in terms of 1976 Regulations,  which are applicable only in a case where a proceeding is initiated for the  purpose of taking disciplinary action against a delinquent officer for the  purpose of imposing a punishment on him.         Disciplinary proceedings, thus, are initiated only in terms of the 1976  Regulations and not in terms of the 1979 Regulations.           It is worth noticing that the 1979 Regulations would be attracted when  no disciplinary proceeding is possible to be initiated.  The 1976 Regulations,  however, on the other hand, would be attracted when a disciplinary  proceeding is initiated.         Both operate in separate fields.  We do not see any nexus between  Regulations 20(1) and 20(2) of the 1979 Regulations and the 1976  Regulations. 17.     The 1976 Regulations provide for the mode and manner in which a  disciplinary proceeding is initiated.  It expressly provides for service of  charge sheet.  Service of charge sheet is a necessary ingredient for initiation  of disciplinary proceeding.  A preliminary enquiry is not contemplated under  the 1976 Regulations.  If such an enquiry is held, the same is only for the  purpose of arriving at a satisfaction on the part of the disciplinary authority  to initiate a proceeding and not for any other purpose.   18.     If it is found that a disciplinary proceeding can be and should be  initiated, recourse to the 1976 Regulations would have to be taken, if not, the  1979 Regulations may be resorted to if the conditions precedent therefor are  satisfied.  It is only with a view to put an embargo on the officer to leave his  job, Clause (ii) of Sub-Regulation (3) of Regulation 20 of the 1979  Regulations has been made.  It’s scope is limited. 19.     We have noticed hereinbefore that each regulations operates in  different fields.  When a proceeding is initiated for the purpose of taking any  disciplinary action on the ground of any misconduct which might have been  committed by the officer concerned indisputably the procedures laid down in  the 1976 Regulations are required to be resorted to.   20.     The 1979 Regulations would be attracted only for the purpose of  termination of service.  Had the intention of the regulation making authority  been that the legal fiction created under Clause (ii) of Sub-regulation (3) of  Regulation 20 would cover both Clauses (i) and (iii), the same should have  been placed only after Clause (iii).  In such an event, Clause (ii) of Sub- regulation (3) of Regulation 20 should have been differently worded.   Some non-obstante clause would have been provided for making an  exception to the applicability of the 1976 Regulations when a legal fiction is  created, although it is required to be taken to the logical conclusion [See  East End Dwellings Co. Ltd. v. Finsbury Borough Council, [(1951) 2  All.E.R 587], but the same would not mean that the effect thereof would be  extended so as to transgress the scope and purport for which it is created.   

       In UCO Bank and Anr. v. Rajinder Lal Capoor [(2007) 6 SCC 694] it  has been held: "We are not oblivious of the legal principle that a  legal fiction must be given full effect but it is  equally well-settled that the scope and ambit of a  legal fiction should be confined to the object and  purport for which the same has been created."

       In Imagic Creative Pvt. Ltd. v. The Commissioner of Commercial  Taxes and Ors. [JT 2008 (1) SC 496], this Court opined:  "26. We have noticed hereinbefore that a legal  fiction is created by reason of the said provision.  Such a legal fiction, as is well known, should be  applied only to the extent for which it was enacted.  It, although must be given its full effect but the  same would not mean that it should be applied  beyond a point which was not contemplated by the

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legislature or which would lead to an anomaly or  absurdity.  27. The Court, while interpreting a statute, must  bear in mind that the legislature was supposed to  know law and the legislation enacted is a  reasonable one. The Court must also bear in mind  that where the application of a Parliamentary and a  Legislative Act comes up for consideration;  endeavours shall be made to see that provisions of  both the acts are made applicable."          It is now a well-settled principle of interpretation of statutes that the  court must give effect to the purport and object of the Act.  Rule of  purposive construction should, subject of course to the applicability of the  other principles of interpretation, be made applicable in a case of this nature.          In New India Assurance Company Ltd.  v. Nusli Neville Wadia and  Anr. [JT 2008 (1) SC 31], this Court held: "50\005With a view to read the provisions of the Act  in a proper and effective manner, we are of the  opinion that literal interpretation, if given, may  give rise to an anomaly or absurdity which must be  avoided.  So as to enable a superior court to  interpret a statute in a reasonable manner, the court  must place itself in the chair of a reasonable  legislator/ author.  So done, the rules of purposive  construction have to be resorted to which would  require the construction of the Act in such a  manner so as to see that the object of the Act  fulfilled; which in turn would lead the beneficiary  under the statutory scheme to fulfill its  constitutional obligations as held by the court inter  alia in Ashoka Marketing Ltd (supra).   51.     Barak in his exhaustive work on ’Purposive  Construction’ explains various meanings attributed  to the term "purpose". It would be in the fitness of  discussion to refer to Purposive Construction in  Barak’s words: "Hart and Sachs also appear to treat "purpose" as a  subjective concept.  I say "appear"  because,  although Hart and Sachs claim that the interpreter  should imagine himself or herself in the  legislator’s shoes, they introduce two elements of  objectivity: First, the interpreter should assume  that the legislature is composed of reasonable  people seeking to achieve reasonable goals in a  reasonable manner; and second, the interpreter  should accept the non-rebuttable presumption that  members of the legislative body sought to fulfill   their constitutional duties in good faith. This  formulation allows the interpreter to inquire not  into the subjective intent of the author, but rather  the intent the author would have had, had he or she  acted reasonably."

     (Aharon Barak, Purposive Interpretation in  Law, (2007) at pg. 87)   

52.     In Bharat Petroleum Corpn. Ltd. v. Maddula  Ratnavalli and Ors., (2007) 6 SCC 81, this Court  held: "The Parliament moreover is presumed to have  enacted a reasonable statute (see Breyer, Stephen  (2005): Active Liberty: Interpreting Our  Democratic Constitution, Knopf (Chapter on  Statutory Interpretation - pg. 99 for "Reasonable  Legislator Presumption" )."

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 53.     The provisions of the Act and the Rules in  this case, are, thus  required to be construed in the  light of the action of the State as envisaged under  Article 14 of the Constitution of India. With a view  to give effect thereto, the doctrine of purposive  construction may have to be taken recourse to.   [See 2007 (7) Scale 753 : Oriental Insurance Co.  Ltd.  vs. Brij Mohan and others.]"

       All the regulations must be given a harmonious interpretation.  A  Court of law should not presume a ’cassus omissus’ but if there is any, it  shall not supply the same.         If two or more provisions of a statute appear to carry different  meanings, a construction which would give effect to all of them should be  preferred.  [See  Gujarat Urja Vikash Nigam Ltd. v. Essar Power Ltd., 2008  (3) SCALE 469] 21.     In terms of the 1976 Regulations drawing up of a charge sheet by the  disciplinary authority is the first step for initiation of a disciplinary authority.   Unless and until, therefore, a charge sheet is drawn up, a disciplinary  proceedings for the purpose of the 1976 Regulations cannot be initiated. 22.     Drawing up of a charge sheet, therefore, is the condition precedent for  initiation of a disciplinary proceedings.  We have noticed in paragraph 15 of  our judgment that ordinarily no disciplinary proceedings can be continued in  absence of any rule after an employee reaches his age of superannuation.  A  rule which would enable the disciplinary authority to continue a disciplinary  proceedings despite the officers reaching the age of superannuation must be  a statutory rule.  A’ fortiori it must be a rule applicable to a disciplinary  proceedings. 23.     There cannot be any doubt whatsoever that the employer may take  resort to a preliminary inquiry, but it will bear repetition to state that the  same has a limited role to play.  But, in absence of the statutory rules  operating in the field, resorting to a preliminary enquiry would not by itself  be enough to hold that a departmental proceeding has been initiated. 24.     Initiation of a disciplinary proceeding may lead to an evil or civil  consequence.  Thus, in absence of clear words, the court must lean in favour  of an interpretation which has been applied by this Court in the main  judgment.         In Workmen of M/s. Firestone Tyre and Rubber Co. of India (P) Ltd.  v. Management and Others [(1973) 1 SCC 813], this Court held that Section  11-A of the Industrial Disputes Act must be interpreted in the light of the  legal principles operating in the field. [See also Haryana Urban  Development Authority v. Om Pal (2007) 5 SCC 742] 25.     For the reasons aforementioned, we are of the opinion that it is not a  fit case where we should exercise our jurisdiction. 26.     This petition is dismissed.  In the facts and circumstances of this case,  however, there shall be no order as to costs.