George Geevarughese K v Bank of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **WEDNESDAY, THE 04TH DAY OF SEPTEMBER 2019 / 13TH BHADRA, 1941** ## **WP(C).No.26722 OF 2016(M)** ## **PETITIONER:** **GEORGE GEEVARGHESE AGED 60 YEARS** **CHIEF MANAGER, BANK OF INDIA, (RETIRED)RESIDING AT KALLARACKAL HOUSE,20-A THOPPIL NAGAR, MUTTADA PO,THIRUVANANTHAPURAM-695025.** **BY ADVS. SRI.K.JAJU BABU (SR.) SRI.P.P.KURIEN SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENTS:** - **1 BANK OF INDIA HEAD OFFICE, STAR HOUSE,PLOT -C-5,G-BLOCK, BANDRA-KURLA COMPLEX,BANDRA (E), MUMBAI400051,REPRESENTED BY ITS MANAGING DIRECTOR.** - **2 THE CHIEF GENERAL MANAGER HR BANK OF INDIA, HEAD OFFICE, STAR HOUSE,PLOT-C5, G-BLOCK, BANDRA-KURLA COMPLEX,BANDRA (E), MUMBAI-400051.** - **3 THE GENERAL MANAGER BANK OF INDIA, NATIONAL BANKING GROUP (SOUTH)707-708, 7TH FLOOR, PHASE 1,SPENCER PLAZA, ANNASSALAI,CHENNAI-600002.** - **4 THE DEPUTY ZONAL MANAGER BANK OF INDIA, ZONAL OFFICE, KERALA ZONE,KALOOR TOWERS, KALOOR-KADAVANTHRA ROAD,COCHIN-682017.** - **5 THE ASSISTANT GENERAL MANAGER BANK OF INDIA, MUMBAI MAIN BRANCH,70-80, MAHATMA GANDHI ROAD,MUMBAI-400001. R1-5 BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR R1-5 BY ADV. SRI.RRADHAKRISHNAN (VYTILA)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18.07.2019, THE COURT ON 04.09.2019 DELIVERED THE FOLLOWING:** W.P.(C).No.26722/16 2 ## **JUDGMENT** 1.The petitioner, who was working as Chief Manager in the 1[st] respondent bank submitted an application for voluntary retirement on medical grounds on 01.01.2014. He attained the age of superannuation on 30.9.2015. However, on the ground that a disciplinary proceedings had been initiated against the petitioner, the application for VRS submitted by the petitioner was not acted upon and Exhibit P4 memo was issued requiring the petitioner to show cause why action has not been taken against him for his unauthorised absence. Thereafter on 24.3.2015, the memo of charges was issued to the petitioner. It is stated that ultimately Exhibit P15 order was passed on 24.9.2015 which reads as follows:- “NOW THEREFORE, in terms of Regulations 20(3)(iii) of the Bank of India (Officers) Service Regulations, 1979, it is hereby ordered that the said Shri.George Geevarughese K, Chief Manager, will cease to be in service at the close of office hours on 30.09.2015, on account of his superannuation, but the disciplinary proceedings will continue as if he is in service until the proceedings are concluded and final orders are passed in respect thereof. However, Shri.George Geevarughese K will not receive any pay and/ or allowance after the date of superannuation and he will also not be entitled to the payment of retirement benefits till the W.P.(C).No.26722/16 3 proceedings are completed and final orders are passed thereon, except his own contribution to PF.” 2.By Exhibit P16 proceedings dated 6.11.2015, the petitioner sought release of gratuity and pension to the petitioner, since the disciplinary proceedings had not been finalised. No action was taken thereon and even in spite of the issuance of lawyer's notices. Ultimately Exhibit P23 penalty order has been issued, imposing the major penalty of dismissal on the petitioner in terms of Regulation 4(j) of the Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976. It is stated in Exhibit P23 that the order of dismissal shall be effective from 30.09.2015 which is the date of superannuation of the petitioner. By Exhibit P24 proceedings dated 17.3.2017, the petitioner was further informed that he would be entitled to his own contribution to the Provident Fund, compassionate allowance in terms of Regulation 31 of Pension Regulations, 1995 and to gratuity under Gratuity Act or BOI Gratuity Fund Rules 1975 whichever is higher. The petitioner was required to submit the forms, duly completed. It is submitted that though the petitioner had submitted the forms as required, W.P.(C).No.26722/16 4 the petitioner is denied pension on the ground that he has suffered the penalty of dismissal. The learned Senior Counsel appearing for the petitioner would contend that since the dismissal was with effect from the date of superannuation, the petitioner who had been permitted to superannuate from service without any embargo would be entitled to payment of retirement benefits in accordance with law. Relying on the decisions of the Apex Court in **Jaswant Singh Gill v. Bharat Coking Coal Ltd and others** [(2007) 1 SCC 663], it is contended that forfeiture of gratuity under the Payment of Gratuity Act cannot be imposed after the employee attains the age of superannuation. Reliance is also placed on a decision of the Apex Court in **Union of India v. Ajay Babu** [2018 (3)KLT 3058 (SC)] to contend that gratuity cannot be forfeited even on the grounds referable to sub-section (6) of Section 4 of the Payment of Gratuity Act, unless there is a finding of moral turpitude in a duly constituted criminal procedings. It is further contended that in the absence of Rule permitting the continuance of disciplinary action after retirement, the entire procedure for continuing and permitting the W.P.(C).No.26722/16 5 disciplinary action against the petitioner after retirement is non est in law and the petitioner is entitled to his entire retirement benefits, taking into account that he retired on superannuation on 30.09.2015. 3.A detailed counter affidavit has been placed on record by the respondents. It is stated that the Bank of India (Employees) Pension Regulations, 1995 and the Bank of India Officer Employees' (Discipline & Appeal) Regulations, 1976 govern the issue. It is stated that the petitioner's request for VRS was rejected and memo of charges were issued to the petitioner and disciplinary enquiry was conducted. It is stated that by Exhibit R4(b) proceedings, the petitioner was inflicted with the punishment of reduction to a lower grade from Scale IV to Scale III on 3.8.2016. Thereafter, by Exhibit R4(d) he was inflicted with further punishment of reduction from Scale III to Scale II. It is stated that further memo of charges has been issued against the petitioner by Exhibits R4(e) and R4(f) but the proceedings pursuant to that had not been finalised. It is stated that the petitioner continues to be in service for the 6 ## W.P.(C).No.26722/16 purpose of the disciplinary proceedings and as such, the action taken by the respondents in inflicting punishment on the petitioner was fully justified. - 4.I have considered the contentions advanced. The petitioner had sought the release of all pensionary benefits due to him on account of superannuation on 30.9.2019. The petitioner challenges the imposition of penalties on the petitioner by Exhibit P23 as well as by Exhibits R4(b) and R4(d) orders imposing penalties. In Exhibit P23 order dated 18.02.2017, the penalty imposed is dismissal. However, it states that the order shall be effective from 30.9.2015 which is the date of natural superannuation of the petitioner. Exhibits R4(b) and R4(d) orders of reduction of pay also provide that they will be effective from 30.9.2015. 5. The petitioner is an employee, who had entered the service of the Bank on 16.10.1981 It is an admitted fact that he had attained the age of superannuation on 30.09.2015. The respondents have chosen to impose penalties on the petitioner W.P.(C).No.26722/16 7 after the date of his superannuation. However, it is curious to note that the imposition of a penalty including the reduction in pay scale is specifically made effective from 30.9.2015, that is, the date on which the petitioner retired from service on attaining the age of superannuation. On 30.9.2015, the petitioner ceases to be an employee of the bank. The imposition of punishments w.e.f. 30.9.2015 on the petitioner would, therefore, have no effect, since the employee-employer relationship snaps on the said date and there would be no effect to the imposition of the penalties with effect from the said date. 6.It is submitted that the gratuity is to be paid in terms of the Payment of Gratuity Act. In a case where the payment is due under the Act, the only provision for forfeiture are as provided in sub-section 6 of Section 4. Gratuity becomes payable to an employee on his retirement, unless the conditions as stated in sub-section 6 of section 4 are in existence. W.P.(C).No.26722/16 8 - 7.The Apex Court has clearly held that there can be no forfeiture of gratuity, except as provided in Section 4(6) even on the basis of provisions contained in non-statutory rules/regulations issued by the employers. In the instant case, the petitioner retired from service on 30.09.2015. In the absence of any order of forfeiture of gratuity as provided in Section 4(6), the petitioner is entitled to payment of gratuity with effect from the said date with statutory interest, as applicable. The orders of reduction in pay can also have no effect in view of the fact that the petitioner had retired from service on the date on which the said orders are sought to be brought into effect. From 30.09.2015 there is no pay to be drawn by the petitioner and as such, no reduction can also be effected on the said date. 8.In the above circumstances, I am of the considered opinion that the orders issued by the respondents cannot stand in the way of the petitioner drawing the gratuity as payable to him in terms of the Payment of Gratuity Act. The respondents shall take appropriate steps to release the amounts due as gratuity W.P.(C).No.26722/16 9 to the petitioner at the earliest. In view of the fact that the petitioner has been dismissed from service only w.e.f. 30.09.2015, that is, the date on which he attained the age of superannuation, the respondents shall also examine whether the petitioner is entitled to pension in terms of the Pension Regulations, since it had been ordered in Exhibit P16 that the petitioner will cease to be in service as on 30.9.2015 on account of superannuation. The petitioner having retired from service and the order of dismissal also having been given effect to only from 30.9.2015, I am of the opinion that the petitioner would be entitled to a consideration of payment of his entire retirement benefits in accordance with law. This shall be considered by the respondents with reference to documents, especially Exhibits P16 and P23 and a reasoned order shall be passed thereon within a period of two months from the date of receipt of a copy of this judgment. The writ petition is ordered accordingly. Sd/- **Anu Sivaraman, Judge** sj W.P.(C).No.26722/16 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBHIT P1** **TRUE COPY OF THE APPLICATION FOR VOLUNTARY RETIREMENT DATED 23.12.2013 ON MEDICAL GROUNDS SUPPORTED BY MEDICAL CERTIFICATE DATED 23.12.2013.** ## **EXHIBIT P2** **TRUE COPY OF THE LETTER DATED 13.2.2014 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** **EXHIBIT P3 TRUE COPY OF THE COMMUNICATION DATED 26.2.2014 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P4 TRUE COPY OF THEMEMO TO SHOW CAUSE DATED 20.8.2014 ISSUED BY THE 5TH RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE REPLY DATED 4.9.2014 SUBMITTED BY THEPETITIONER BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REQUEST DATED 1.12.2014 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P7 TRUE COPY OF THECOMMUNICATION DATED 10.12.2014 ISSUED BY THE DEPUTY ZONAL MANAGER OF BANK OF INDIA TO THE PETITIONER.** - **EXHIBIT P8 TRUE COPY OF THE COMMUNICATION DATED 15.12.2014 ISSUED BY THE 5TH RESPONDENT THROUGH REGISTRED POST TO THE PETITIONER.Q** **EXHIBIT 9 TRUE COPY OF THE MEMO OF CHARGES DATED 24.3.2015 WITH REF. NO.NBG(S):KER -71GM:KBJ:969: ISSUED BY THE3RD RESPONDENT TO THE PETITIONER.** 11 W.P.(C).No.26722/16 **EXHIBIT P10** - **TRUE COPY OF THE LETTER DATED 27.5.2015 ISSUED BY THE 5TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P11** - **TRUE COPY OF THE REPLY DATED 28.5.2015 SUBMITTED BY THEPETITIONER BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P12 TRUE COPY OF THE REPLY DATED 20.6.2015 SUBMITTED BY THE PETITIONER BEFORE THE 5TH RESPONDENT.** - **EXHIBIT P13 TRUE COPY OF THE LETTER DATED 1.8.2015 ISSUED BY THE NATIONAL BANKING ZONAL MANAGER OF THE BOI.** - **EDXHIBIT P14 TRUE COPY OF THE REPLY TO EXT.P13 DATED 7.8.2015 SUBMITTED BY THE PETITIONER BEFORE THE ZONAL MANAGER, KERALA ZONE.** - **EXHIBIT P15 TRUE COPY OF THE ORDER DATED 24.9.2015 BY THE 2ND RESPONDENT SENT TO THE PETITIONER BY REGISTERED POST WITH ACKNOWLEDGEMENT DUE AS PER THE COVERING LETTER DATED 28.9.2015.** - **EXHIBIT P16 TRUE COPY OF THE REQUEST DATED 6.11.2015 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P17 RUE COPY OF THE RELEVENT EXTRACT OF BANK OF INDIA (OFFICERS) SERVICE REGULATIONS 1979.** - **EXHIBIT P18 TRUE COPY OF THE RELEVANT EXTRACT OF THE BANK OF INDIA OFFICER EMPLOYEES' (DISCIPLINE & APPEAL) REGULATIONS 1976.** - **EXHIBIT P19 TRUE COPY OF THE RELEVANT EXTRACT OF THE BANK OF INDIA (EMPLOYEES) PENSION REGULATIONS 1995.** - **EXHIBIT P20 TRUE COPY OF THE NOTICE DATED 6.6.2016 ISSUE DIN FAVOUR OF THE PETITIONER TO THE 2ND RESPONDENT.** W.P.(C).No.26722/16 12 **EXHIBIT P21** **TRUE COPY OF THE NOTICE DATED 6.6.2016 ISSUED IN FAVOUR OF THE PETITIONER TO THE 3RD RESPONDENT.** - **EXHIBIT P22** - **TRUE COPY OF THE REPRESENTATION DATED 28.09.2016 SUBMITTED BY THE PETITIONER, ADDRESSED TO THE RESPONDENTS.** - **EXHIBIT P23** - **TRUE COPY OF THE PENALTY ORDER BEARING NO.NBGS:GM:KBJ:2017-2017:299 DATED 18.02.2017 ISSUED BY THE RESPONDENTS TO THE PETITIONER.** - **EXHIBIT P24 TRUE COPY OF THE LETTER BEARING FEF.NO.MSZ:HR:PRG: 7639 DATED 17.03.2017 ISSUED BY THE RESPONDENT BANK TO THE PETITIONER.** - **RESPONDENTS' EXHIBITS:** - **EXHIBIT R4(A) TRUE COPY OF THE MEMORANDUM NO.NBG(W1) DA 48 DATED 09/09/2015 ALONG WITH ARTICLE OF CHARGE.** - **EXHIBIT R4(B) TRUE COPY OF THE ORDER NO.NBG(W-1) DA 027 DATED 03/08/2016 OF THE GENERAL MANAGER, NBG (W-1) AND DISCIPLINARY AUTHORITY.** - **EXHIBIT R4(C) TRUE COPY OF THE MEMORANDUM NO.NBGS:GM:KBJ:2015-16:1192 DATED 10/09/2015 ALONG WITH THE STATEMENT OF ALLEGATIONS.** - **EXHIBIT R4(D) TRUE COPY OF THE ORDER NO.NBGS:GM:KBJ:2016-17:224 DATED 21/11/2016 OF THE GENERAL MANAGER, NBG(W-1) AND DISCIPLINARY AUTHORITY.** - **EXHIBIT R4(E) TRUE COPY OF THE MEMORANDUM NO.NBG(S), KER 71:GM:KBJ:969 DATED 24/03/2015.** 13 W.P.(C).No.26722/16 **EXHIBIT R4(F)** **TRUE COPY OF THE ARTICLE OF CHARGE NO.NBG(S), VIGS:KER 71:DA:GM:KBJ:965 DATED 24/03/2015.** True copy PS to Judge