Georgekutty Kurian v. Bank of India and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.NAGARESH** **TUESDAY, THE 04TH DAY OF MAY 2021/14TH VAISAKHA, 1943** ## **WP(C).No.4220 OF 2019(B)** ## **PETITIONERS:** |**1**|**GEORGEKUTTY KURIAN,**| |---|---| ||**AGED 63 YEARS**| ||**S/O. LATE KURIAN M.J., PUTHUSSERY HOUSE,**| ||**AMBALAPADI, VIDAKUZHA, THAIKKATTUKARA P.O.,**| ||**ALUVA, KERALA-683106.**| |**2**|**ADDL R2, ROSAMMA GEORGE**| ||**AGED 66 YEARS**| ||**ROSAMMA GEORGE, (WIFE OF LATE MR.GEORGEKUTTY**| ||**KURIAN) PUTHUSSERY HOUSE, AMBALAPADI,**| ||**VIDAKUZHA, THAIKKATTUKARA.P.O, ALUVA, KERALA-**| ||**683 106 IS IMPLEADED AS PER ORDER DATED 11-02-**| ||**2021 IN IA 1/2021 IN WP(C) 4220/2019.**| **BY ADVS. SRI.K.N.SASIDHARAN NAIR SRI.LEO GEORGE** ## **RESPONDENT/S:** |**1**|**BANK OF INDIA,**| |---|---| ||**HEAD OFFICE, STAR HOUSE, PLOT C-5, G BLOCK,**| ||**BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI-400051,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR AND CEO.**| |**2**|**MANAGING DIRECTOR AND CEO,**| ||**BANK OF INDIA, HEAD OFFICE, STAR HOUSE,**| ||**PLOT C-5, G BLOCK, BANDRA-KURLA COMPLEX,**| ||**BANDRA(E), MUMBAI-400051.**| |**3**|**EXECUTIVE DIRECTOR AND APPELLATE AUTHORITY,**| ||**BANK OF INDIA, HEAD OFFICE, STAR HOUSE,**| ||**PLOT C-5, G BLOCK, BANDRA-KURLA COMPLEX,**| ||**BANDRA(E), MUMBAI-400051.**| WP(C) No.4220/2019 : 2 : - **4 THE GENERAL MANAGER (HR) AND APPELLAGE AUTHORITY,** - **BANK OF INDIA, HEAD OFFICE, STAR HOUSE, PLOT C-5, G BLOCK, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI-400051.** - **5 THE DEPUTY GENERAL MANAGER (PERSONNEL), BANK OF INDIA, HEAD OFFICE, STAR HOUSE, PLOT C-5, G BLOCK, BANDRA-KURLA COMPLEX, BANDRA(E), MUMBAI-400051.** - **6 THE ZONAL MANAGER,** **BANK OF INDIA, ZONAL OFFICE, KERALA ZONE, KALOOR TOWERS, KALOOR-KADAVANTHRA ROAD, KOCHI682107.** **R6 BY ADV. SRI.K.M.ANEESH R6 BY ADV. SRI.K.SANTHOSH KUMAR (KALIYANAM) R6 BY ADV. SRI.ADARSH KUMAR R6 BY ADV. SRI.BIJU VARGHESE ABRAHAM R6 BY ADV. SRI.DILEEP CHANDRAN R6 BY ADV. SRI.SHASHANK DEVAN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04-05-2021 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C) No.4220/2019 : 3 : ## **J U D G M E N T** ~ ~ ~ ~ ~ ~ ~ ~ ~ ## _**Dated this the 4[th] day of May, 2021**_ ## The 1[st] petitioner filed this writ petition invoking Article ## 226 of the Constitution of India, seeking the following reliefs:- “(i) Issue a writ of certiorari or any other appropriate writ, direction or order to the respondents calling for the records leading to the issuance of Ext.P11, Ext.P15, Ext.P17, and Ext.P21 orders and quashing them to the extent they deny the benefit of qualifying service from 27.04.2008 to 31.01.2015 and various service benefits and retirement benefits to the petitioner. (ii) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to treat the petitioner as having continued in service from 27.4.2008 to 31.03.2015 without interruption and reckon the petitioner's service from 27.04.2008 to 31.03.2015 as qualifying service for all service benefits like notional promotion, notional pay fixation, pay revision etc, and computation of all retirement benefits. (iii) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to consider the case of notional promotion of the petitioner from Middle Management Grade, ScaleII to Middle Management Grade, Scale-III on the basis of the findings of the Departmental Promotion Committee as on 31.03.2002, 31.03.2005 and WP(C) No.4220/2019 : 4 : 31.03.2006, kept in sealed covers, through a transparent process. (iv) Issue a writ of mandamus or any other appropriate writ, direction or order commanding the respondents to grant perks like medical reimbursements, newspaper allowance, leave travel concessions, etc, payable to the petitioner for the period from 08.01.2008 to 31.03.2015. (v) Direct the respondents to disburse arrears of pay from 27.04.2008 to 31.03.2015 revised pay and revised retirement benefits and of other perks consequent on notional re-fixaion of pay with interest at 12% per annum.” The 1[st] petitioner passed away on 08.12.2020. The 2[nd] petitioner, who is wife of the 1[st] petitioner, was hence impleaded as additional 2[nd] petitioner in the writ petition. 2. The 1[st] petitioner entered services under the 1[st] respondent-Bank on 01.08.1977 and was working as Assistant Manager (Credits) in Kollam Branch of the Bank. In the year 1998, the Central Bureau of Investigation (CBI) initiated a _suo motu_ case which was registered as Crime No.10/2005. The allegation was that the petitioner conspired with three other accused and committed serious financial irregularities, violating various provisions of the IPC and the Prevention of Corruption Act. It was alleged that the Bank has WP(C) No.4220/2019 : 5 : sustained a loss of 43,80,895.54 due to the omissions and₹ commissions of the petitioner. 3. The 1[st] petitioner was issued with Ext.P4 charge sheet under Regulation 6 of the Bank of India Officer Employees’ Discipline and Appeal) Regulations, 1976. A minor penalty of “reduction to one lower stage in the present basic pay drawn by him for a period of one year without cumulative effect and not adversely affecting his pension” was imposed, as per Ext.P5 order dated 11.02.2004. 4. The petitioner was however convicted by the Special Court SPL/CBI-II, Ernakulam on 08.01.2008. Based solely on the conviction by the trial court, the petitioner was compulsorily retired invoking Regulation 4(h) r/w Regulation 11 of the Bank of India Officer Employees’ (Discipline and Appeal) Rules, as per Ext.P1 dated 26.04.2008. The 1[st] petitioner filed Ext.P2 appeal against the order of compulsory retirement, which was rejected as per Ext.P3 order on 26.07.2008. The 1[st] petitioner had filed Crl.Appeal No.109/2008 before this Court, against the conviction. This WP(C) No.4220/2019 : 6 : Court set aside the conviction on 31.05.2016 as per Ext.P6 judgment. In the meanwhile, the date of retirement of the petitioner, 31.05.2015, was over and hence the 1[st] petitioner could not aspire for reinstatement in service on the basis of his acquittal. 5. During the departmental proceedings the 1[st] petitioner’s candidature for promotion from Middle Management Scale-II to Middle Management Scale-III was considered by the Departmental Promotion Committee as on 31.03.2002, 31.03.2005 and 31.03.2006, but the results were kept in sealed covers. During the period of Disciplinary Proceedings and Criminal Trial, two pay revisions were implemented with effect from 01.11.2007 and 01.11.2012. But the petitioner was not extended with the benefits of the 2012 pay revision. 6. On his acquittal by this Court, the 1[st] petitioner submitted Ext.P10 representation to the 6[th] respondent on 20.06.2016 seeking disbursal of all service benefits like stalled promotions, pay revision, reimbursement of medical WP(C) No.4220/2019 : 7 : expenses, news paper allowance and corresponding retirement benefits like pension, gratuity, provident fund, leave encashment etc. By Ext.P11 order dated 01.09.2016, the 6[th] respondent revoked the petitioner’s compulsory retirement, treated him as a reinstated employee and approved payment of pension and retirement benefits treating his qualifying service as 31 years from 01.08.1977 (date of entry in service) to 26.04.2008 (date of compulsory retirement). An amount of ₹81,693.31 being recovered salary for the period from 08.01.2008 to 26.04.2008 was ordered to be refunded since the 1[st] petitioner had actually worked during the said period. 7. The learned counsel for the petitioner pointed out that though his last day in service should be treated as 31.03.2015, his average emoluments for the purpose of retirement benefits have been calculated taking average emoluments for ten months preceding 26.04.2008. The 1[st] petitioner’s service from 27.04.2008 to 31.03.2015 has been excluded for computing qualifying service. Furthermore, pay revision benefits are not restored to the 1[st] petitioner. Though WP(C) No.4220/2019 : 8 : the 1[st] petitioner filed Ext.P14 appeal against Ext.P11 decision, the 3[rd] respondent as per Ext.P15, refused to entertain the appeal. The subsequent representations of the 1[st] petitioner in this regard also remained unheeded. It was in such circumstances, the 1[st] petitioner filed this writ petition. 8. The learned counsel for the petitioner brought to the notice of the Court a judgment of the Hon’ble Apex Court in **Dharam Dev Mehta v. Union of India and others** [(1980) 2 SCC 205] in which it was held that when compulsory retirement imposed is found to be illegal, an employee is entitled to arrears of salary and admissible allowances between the dates of his compulsory retirement and actual superannuation. The learned counsel also relied on the judgments in **A.L. Ahuja v. Union of India** (AIR 1987 SC 1907) , **R.P. Malhotra v. Chief Commissioner of Income Tax, Patiala and Others** [1990 (Suppl) SCC 771], **Murari Mohan Deb v. Secretary to the Govt. of India and others** (AIR 1985 SC 931) and **Sardul Singh v. Delhi Administration and another** [(1991) 3 SCC 346] in support WP(C) No.4220/2019 : 9 : of the proposition. 9. The learned counsel for the petitioner argued that the petitioner should be granted due promotions in the light of of his subsequent acquittal in the criminal case and relied on the judgment in **Vinod Kumar v. State of Haryana and others** [(2013) 16 SCC 293]. The petitioner should be granted the benefit of pay revision also, contended the counsel for the petitioner. 10. The respondents stated that the earlier imposition of minor penalty in the year 2004 was in connection with the issuing of the inland letter of credit and involved gross negligence while performing duty. The subsequent imposition of compulsory retirement is as per section 10 (1) (B) (I) of the Banking Regulation Act. From the date of his conviction till the date of his acquittal, there was a prohibition in law on the respondents from employing the petitioner. The petitioner is therefore not entitled to any benefit for the period in which he was kept out of service legally. WP(C) No.4220/2019 : 10 : 11. The total service of the petitioner is 37 years, seven months and 31 days. But his qualifying service is 31 years. The petitioner cannot be extended with any benefit in respect of any period which does not form part of qualifying service. The learned Standing Counsel appearing for the respondents relied on the judgment of the Hon'ble Apex Court in **State Bank of India and others v. Mohammed Abdul Rahim** [(2013) 11 SCC 67] in which the Apex Court has held that if the employee could not have remained employed with the bank during a period, it is difficult to visualise as to how he would be entitled to payment of salary during that period. The subsequent acquittal of the petitioner though obliterates his conviction, does not operate retrospectively to wipe out the legal consequences of the conviction under the Act, contended the learned Standing Counsel. 12. I have heard the learned counsel for the petitioner and learned Standing Counsel appearing for the respondents in detail. WP(C) No.4220/2019 : 11 : 13. In view of the financial irregularities detected in the bank, the petitioner was issued with Ext.P4 charge sheet and was imposed with a minor penalty of reduction to one lower stage in the basic pay for a period of one year without cumulative effect, as per Ext.P5 order dated 11.02.2004. In the meanwhile, the CBI proceeded against the petitioner alleging offences under Indian Penal Code and the Prevention of Corruption Act. The petitioner was convicted in the said criminal case on 08.01.2008. 14. As the petitioner was convicted of offences involving moral turpitude, the respondents could not have continued to avail the services of the petitioner after such conviction, in view of Section 10 (1) (b) (i) of the Banking Regulation Act. Therefore, the respondents invoked the provisions of the Bank of India Officer Employees' (Discipline and Appeal) Regulations, 1976 and compulsorily retired the petitioner as per Ext.P1 order dated 26.04.2008. The petitioner was later acquitted of criminal charges against him, as per Ext.P6 judgment dated 31.05.2016, by the time the WP(C) No.4220/2019 : 12 : actual date of retirement on superannuation of the petitioner, 31.03.2015, was over. 15. The respondents withdrew the order of compulsory retirement and notionally reinstated him in service. The notional service was upto his actual date of retirement on superannuation. But the respondents declined salary to the petitioner for the period from 27.04.2008 to 31.03.2015 as he had not actually rendered service during the said period. The medical and other allowances, privilege leave encashment and the PF and gratuity benefits were denied for the said period. 16. The petitioner was prosecuted under criminal law and ultimately acquitted by Appellate Court. The order of compulsory retirement passed against the petitioner was on the basis of conviction by trial court, which conviction was found illegal by the Appellate Court. Accepting the situation, the respondents have withdrawn the order of compulsory retirement and have notionally permitted the petitioner to continue in service till the date of his retirement on WP(C) No.4220/2019 : 13 : superannuation. In the ordinary course, the petitioner cannot be denied the service benefits for the period during which he was erroneously, if not illegally, kept out of service. 17. In the petitioner’s case, the respondents cannot be found fault with for proceeding against the petitioner and compulsorily retiring him from service because such proceedings were legally warranted under Section 10 of the Banking Regulation Act and the Bank of India Officer Employees’ (Discipline and Appeal) Regulations, 1976. The Hon’ble Apex Court has also held in the judgment in **State Bank of India and others** (supra) that if an employee could not have remained in service during a period, it is difficult to visualise as to how he would be entitled to payment of salary during that period. Hence denial of payment during the period, the petitioner was kept out of service cannot be said to be illegal. 18. However, in the petitioner’s case, the respondents have accepted that the compulsory retirement inflicted on the petitioner cannot be sustained in view of the acquittal of the WP(C) No.4220/2019 : 14 : petitioner in the criminal case and have withdrawn the order and permitted the petitioner to continue in service though notionally till the date of his actual date of retirement. Had the petitioner did not attain the age of superannuation in the meanwhile, he would and should have been actually reinstated in service. 19. The delay in the final conclusion of the criminal proceedings cannot affect the legal right of the petitioner to receive service benefits which would have otherwise bestowed on him. Those benefits which would have otherwise accrued on the petitioner should be made available to the petitioner notionally, treating the service from 27.04.2008 to 31.03.2015 as notional. 20. The petitioner cannot claim salary for the period he was kept out of service under the Regulations, 1975. The petitioner will also not be entitled to yearly increments for the said period as he has not worked during the period. But that should not affect the claim of the petitioner to have terminal/retrial benefits computed taking into account his WP(C) No.4220/2019 : 15 : entire service period. Otherwise, the withdrawal of order of compulsory retirement made by the respondents and the order treating the petitioner to have continued in service till 31.03.2015, would be meaningless. 21. The petitioner should therefore be held entitled to count his service upto 31.03.2015 for retirement benefits. The petitioner should also be held entitled to the benefit of pay revision effected before 31.03.2015. However, taking into consideration the fact that the 1[st] petitioner has not rendered actual service during the period in question, the petitioner will not be entitled to allowances like medical reimbursement, news paper allowance, leave transfer allowance etc. attached to the said period. The petitioner cannot also claim notional promotions as of right, since the petitioner was not available in service for promotion by operation of law, till his retirement date. In the circumstances, the writ petition is disposed of directing the respondents to revise the pay of the petitioner extending the benefit of pay revision if any, effected during the WP(C) No.4220/2019 : 16 : period from 08.01.2008 to 31.03.2015. The gratuity and pension amounts due to the 1[st] petitioner shall be revised treating the total years of service rendered by the petitioner as 37 years, 7 months and 31 days. The Gratuity and Pension payable to the 1[st] petitioner shall be revised in the afore lines and the differential amount of gratuity and arrears of pension from 01.04.2015 shall be disbursed to the 2[nd] respondent within a period of 60 days. Sd/- **N. NAGARESH, JUDGE** ncd/29.04.2021 WP(C) No.4220/2019 : 17 : ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE PENALTY ORDER OF COMPULSORY RETIREMENT ISSUED BY THE 6TH RESPONDENT BEARING NO.ZO:KER:IRD:25 DATED 26/04/2008.** - **EXHIBIT P2 TRUE COPY OF THE APPEAL FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT DATED 18/06/2008.** - **EXHIBIT P3 TRUE COPY OF THE APPELLATE ORDER OF THE 4TH RESPONDENT BEARING NO.JKL:AA:154 DATED 26/07/2008.** **EXHIBIT P4 TRUE COPY OF THE MEMORANDUM ISSUED BY THE 6TH RESPONDENT BEARING NO.ZO:EKM:IR:15 DATED 17/04/2003. EXHIBIT P5 TRUE COPY OF THE PENALTY ORDER OF THE 6TH RESPONDENT BEARING NO.ZO/KER/IRD/592 DATED 11/02/2004.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HONOURABLE COURT IN CRL. A. NO.109/2008 DATED 31/05/2016.** - **EXHIBIT P7 TRUE COPY OF LETTER OF THE 5TH RESPONDENT BEARING NO.HO:P:R:PSA:L:242 DATED 20/05/2002.** - **EXHIBIT P8 TRUE OF LETTER NO.HO:P:R:RSS:4627 OF THE 5TH RESPONDENT DATED 24/07/2006.** - **EXHIBIT P9 TRUE COPY OF LETTER NO.HO:P:R:VAD:533 OF THE 5TH RESPONDENT DATED 21/05/2007.** **EXHIBIT P10 TRUE COPY OF THE PETITIONER'S REQUEST TO THE 6TH RESPONDENT DATED 20/06/2016. EXHIBIT P11 TRUE COPY OF THE ORDER OF THE 6TH RESPONDENT DATED 01/09/2016.** WP(C) No.4220/2019 : 18 : - **EXHIBIT P12 TRUE COPY OF THE RELEVANT PAGES OF THE PENSION BOOK OF THE PETITIONER BEARING REFERENCE NO.35241 DATED NIL.** - **EXHIBIT P13 TRUE COPY OF THE ACCOUNT STATEMENT OF THE PETITIONER FOR THE PERIOD FROM 01/09/2016 TO 16/11/2016 DATED 08/10/2017.** - **EXHIBIT P14 TRUE COPY OF THE PETITIONER'S APPEAL TO THE 3RD RESPONDENT DATED 09/10/2017.** - **EXHIBIT P15 TRUE COPY OF THE BANK'S REPLY BEARING NO.HO:IL:701 DATED 09/11/2017.** - **EXHIBIT P16 TRUE COPY OF THE PETITIONER'S REQUEST TO THE 3RD RESPONDENT DATED 01/12/2017.** - **EXHIBIT P17 TRUE COPY OF THE BANK'S COMMUNICATION BEARING NO.HO:IL:795 DATED 11/12/2017.** - **EXHIBIT P18 TRUE COPY OF THE PETITIONER'S E-MAIL COMMUNICATION TO THE 2ND RESPONDENT DATED 11/01/2018.** - **EXHIBIT P19 TRUE COPY OF THE PETITIONER'S E-MAIL REMINDER TO THE 2ND RESPONDENT DATED 02/04/2018.** - **EXHIBIT P20 TRUE COPY OF THE PETITIONER'S REQUEST TO THE 6TH RESPONDENT DATED 24/04/2018.** - **EXHIBIT P21 TRUE COPY OF THE 4TH RESPONDENT'S COMMUNICATION BEARING NO.HO:IL:208 DATED 02/06/2018.** _dxa_