Syamala V. P. vs Kerala Gramin Bank and Ors.

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ## **`PRESENT`** ## **`THE HONOURABLE MR.JUSTICE BASANT BALAJI`** ``` TUESDAY, THE 9[TH] DAY OF JANUARY 2024 / 19TH POUSHA, 1945 ``` ## **`WP(C) NO. 9055 OF 2022`** ## **`PETITIONER/S:`** ``` SYAMALA V. P. AGED 62 YEARS, W/O. GOURIDAS M., "PRASANTHI", PERUMBILAAVIL ROAD, GURUVAYUR, THRISSUR DISTRICT, PIN - 680101. ``` ``` BY ADVS. P.CHANDRASEKHAR K.K.MOHAMED RAVUF SATHEESH V.T. MANJARI G.B. ``` ## **`RESPONDENT/S:`** - `1 KERALA GRAMIN BANK, KGB TOWERS, AK ROAD, MALAPPURAM, PIN - 676505, REPRESENTED BY CHAIRMAN-CUM-MANAGING DIRECTOR.` - `2 THE GENERAL MANAGER, KERALA GRAMIN BANK, HUMAN RESOURCES WING, HEAD OFFICE, KGB TOWERS, AK ROAD, MALAPPURAM, PIN - 676505.` - `3 K. K. SOBHA, SENIOR MANAGER, STAFF NO.2217, KERALA GRAMIN BANK, REGIONAL OFFICE, EAST FORT, PALLIKULAM, THRISSUR - 680005. BY ADVS. M.GOPIKRISHNAN NAMBIAR, K.JOHN MATHAI, JOSON MANAVALAN, KURYAN THOMAS, PAULOSE C. ABRAHAM, RAJA KANNAN JAI MOHAN` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 9055 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** J U D G M E N T (Dated this the 9[th] day of January 2024) The petitioner retired from the service of the respondent Bank as Assistant Manager after putting in 33 years of service on 31.03.2020. 2. After retirement, on 11.11.2020, the petitioner received Ext.P1 letter from the 2[nd] respondent stating that the Bank had incurred a pecuniary loss of Rs.64,401/- on account of the lapse on the petitioner’s part. She was directed to give an explanation as to why the amount should not be recovered from her pension under Regulation 46 of the Kerala Gramin Bank (Employees’) Pension Regulation 2018 (for short ‘the Regulation’). To Ext.P1 letter, Ext.P2 reply was given. Ext.P3 charge memo was issued to the petitioner on 30.01.2021. The petitioner submitted a detailed reply to Ext.P3 charge memo ``` WP(C) NO. 9055 OF 2022 ``` ``` -3- ``` through Ext.P4 dated 11.02.2021, denying the allegations raised against her. 3. An FIR was also registered as FIR No.0074/2020. A preliminary report was obtained from the senior manager regarding the allegations raised against the petitioner, and Ext.P6 report was filed. Thereafter, an enquiry was conducted for the alleged act of misconduct on the part of the petitioner based on Ext.P3 charge memo, and a report in Ext.P7 concluded the enquiry. The report concludes as follows: “for the reasons stated and in the light of the attending circumstances, as narrated above, I am of the view that if Smt.Syamala V P had been cautious and vigilant as a responsible officer, and diligent there could not be a theft as involved in this case. She is liable for the lapses and gross negligence.” 4. On the basis of the findings entered by the enquiry officer, the 2[nd] respondent passed Ext.P10 order on 11.02.2022, the relevant portion reads as follows: “Recovery of Rs.64,401/- (Rupees Sixty Four ``` WP(C) NO. 9055 OF 2022 ``` ``` -4- ``` Thousand four hundred one only) from pension under Regulation 46 for the negligence on the part of the officer.” as envisaged under Regulation 46 of Kerala Gramin Bank (Employees’) Pension Regulations, 2018, hereby imposed on the subject officer”. ## 5. The petitioner has filed this writ petition with the following prayers: “i) Call for the records leading to Exhibit P10 and quash the same by issuing a writ of certiorari; ii) Issue a writ of mandamus or any other writ, order or direction directing the Respondents to release and pay to the Petitioner Rs.64,401/- deducted/withheld from arrears of pay due to her along with interest @ 12% thereon per annum from date of due till actual payment, without any delay forthwith, and iii) Pass such further orders as this Hon'ble Court may be pleased to grant to the Petitioner on the facts and in the circumstances of the case.” 6. A counter affidavit is filed on behalf of the respondents 1 and 2, in which it is contended that Regulation 46 of the Regulation has been strictly complied with and that it gives authority to recover the loss from the pension of the whole or part of any pecuniary loss caused to the Bank if the pensioner is found guilty after undertaking ``` WP(C) NO. 9055 OF 2022 ``` ``` -5- ``` departmental or judicial proceedings. It is also contended that the petitioner failed to avail the remedies available under the Rules and regulations, including the filing of the appeal before the Appellate Authority under Regulation 49 of the Regulation and praying for the dismissal of the writ petition. 7. Heard the counsel for the petitioner and the counsel for the respondent-Bank. 8. The main contention raised by the counsel for the petitioner, Sri. P.Chandrasekhar is that in passing Ext.P10 Regulation 46 of the Regulation is not complied with. The Regulation states that the competent authority may withhold or withdraw the pension or a part thereof either permanently or for a specific period if any pecuniary loss is caused to the bank in any departmental or judicial proceedings if the pensioner is found guilty of grave misconduct or negligence, or criminal breach of trust or forgery during the period of his ``` WP(C) NO. 9055 OF 2022 ``` **==> picture [22 x 9] intentionally omitted <==** service. It is specifically stated in the Regulation itself that before passing any final orders under the sub-regulation, the Board shall be consulted. A perusal of Ext.P10 would show that the Board was not consulted before issuing the recovery of Rs.64,401/- from the pension under Regulation 46. Therefore, Ext.P10 is bad in law. 9. The counsel for the respondent-Bank, Sri. Jaimohan argues that the proviso to Regulation 46 of the Regulation is only a procedure in nature, and even if it is not complied with, it will not vitiate the enquiry and the report against the petitioner. He relies on a judgment of the Apex Court in State Bank of Patiala and Ors. v. S.K. Sharma [(1996) 3 SCC 364], specifically relying on paragraph 33 of the judgment, contended for the proposition that, in case of violation of a procedural provision, it would not vitiate the enquiry except when there is a violation of natural justice and opportunity of ``` WP(C) NO. 9055 OF 2022 ``` ``` -7- ``` hearing is not awarded. In this case, the petitioner has been given an opportunity to contest the same before the enquiry officer and the only allegation raised is that the Board was not consulted before passing Ext.P10. It was only a procedural regularity, which will not vitiate the enquiry. ## 10. Regulation 46 reads as follows: - “46. Recovery of pecuniary loss caused to the Bank. (1) The competent authority may withhold or withdraw a pension or a part thereof, whether permanently or for a specified period, and order recovery from pension of the whole or part of any pecuniary loss caused to the Bank if in any departmental or judicial proceedings the pensioner is found guilty of grave misconduct or negligence or criminal breach of trust or forgery or acts done fraudulently during the period of his service: Provided that before passing any final orders under this sub-regulation, the Board shall be consulted: Provided further that where a part of pension is withheld or withdrawn the amount of pension drawn by a pensioner shall not be less than the minimum pension payable under these regulations: Provided also that departmental proceedings, if instituted while the employee was in service, shall, after the retirement of the employee, be deemed to be the proceedings under these regulations and shall be continued and concluded by the authority by which they were commenced in the same manner as if the employee had continued service. ``` WP(C) NO. 9055 OF 2022 ``` ``` -8- ``` (2) No departmental proceedings shall be initiated in respect of an event if more than four years time lapsed after the event: Provided that the disciplinary proceedings initiated under this sub-regulation shall be in accordance with the procedure applicable to disciplinary proceedings in relation to the employee during the period of his service. (3) Where the competent authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made at a rate exceeding one third of the pension admissible on the date of retirement of the employee.” 11. Regulation 46 deals with the recovery of pecuniary loss caused to the Bank and it deals with the competent authority to withhold or withdraw the pension or a part thereof permanently or for a specified period if any loss is caused to the Bank. The first proviso directs that the Board shall be consulted before the final orders are passed under the sub-regulation. When the word ‘shall’ is used in a sentence, it is mandatory that before passing final orders, as Ext.P10 in this case, the Board ought to have been consulted, but this is lacking in Ext.P10. Therefore, even if it is a procedural ``` WP(C) NO. 9055 OF 2022 ``` ``` -9- ``` violation, it is a serious lapse, which Regulation 46(1) mandates. Therefore, I have no hesitation in holding that Ext.P10 is bad in law and liable to be set aside. 12. Therefore, Ext.P10 is quashed, and respondents are free to proceed from the stage in which the findings of the enquiry officer are confirmed. The petitioner is free to represent before the Board against the findings entered into by the enquiry officer. The representation shall be filed within two weeks from today. If such representation is filed, the Board shall also take into consideration the said representation before passing final orders as mandated in Regulation 46(1). The Board shall pass the final order within a period of three months from the date of receipt of a copy of the judgment. 13. Ext.P10 directs that the recovery shall be effected from the pension under Regulation 46. The learned counsel for the petitioner submits that the entire amount has been ``` WP(C) NO. 9055 OF 2022 ``` **==> picture [30 x 9] intentionally omitted <==** adjusted from the salary arrears due to the petitioner. When Ext.P10 is set aside, naturally, the amount has to be refunded back to the petitioner, and the recovery, if any to be done, subject to the decision to be taken by the Board in accordance with Regulation 46. The Writ Petition is disposed of accordingly. Sd/- BASANT BALAJI JUDGE JS ## `WP(C) NO. 9055 OF 2022` ``` -11- ``` ## **`APPENDIX OF WP(C) 9055/2022`** ## `PETITIONER EXHIBITS` - `Exhibit P1 TRUE COPY OF THE LETTER DATED 11.11.2020 OF THE 2ND RESPONDENT TO THE PETITIONER.` - `Exhibit P2 TRUE COPY OF THE LETTER DATED 20.11.2020 OF THE PETITIONER TO THE 2ND RESPONDENT.` - `Exhibit P3 TRUE COPY OF CHARGE MEMO ISSUED BY 2ND RESPONDENT DATED 30.01.2021 PROPOSING TO RECOVERING` - `RS.64,401/- FROM THE PENSION OF THE PETITIONER.` - `Exhibit P4 TRUE COPY OF THE LETTER DATED 11.02.2021 OF THE PETITIONER TO THE 2ND RESPONDENT.` - `Exhibit P5 TRUE COPY OF THE FIR AND FI STATEMENT IN CRIME NO.0074 OF 2020 OF GURUVAYOOR POLICE STATION.` - `Exhibit P6 TRUE COPY OF THE REPORT DATED 11.06.2020 OF THE SENIOR MANAGER, SRI T. V. ASOK KUMAR ALONG WITH THE STATEMENTS GIVEN TO HIM BY SRI V. P. PREMKUMAR, APPRAISER, MANGER AND SHRI V. REGHUNATH.` - `Exhibit P7 TRUE COPY OF THE ENQUIRY REPORT OF SMT. SOBHA K. K., SENIOR MANAGER, DATED 31.12.2021 ALONG WITH THE STATEMENTS OF THE WITNESSES EXAMINED DURING THE ENQUIRY.` - `Exhibit P8 TRUE COPY OF LETTER DATED NIL OF THE 3RD RESPONDENT REQUESTING THE PETITIONER TO OFFER HER REMARKS/COMMENTS.` - `Exhibit P9 TRUE COPY OF THE WRITTEN STATEMENT OF BRIEF / REMARKS/COMMENTS DATED OF THE PETITIONER DATED 08.12.2021.` - `Exhibit P10 TRUE COPY OF THE ORDER REF. 9/KGB/E NO.533/2022 DATED 11.02.2022 OF THE 2ND RESPONDENT.` ## `RESPONDENT EXHIBITS` ``` ExhibitTRUE COPY OF THE RELEVANT PAGES OF THE NOTIFICATION R1(a)DATED 02.11.2018 NOTIFYINF THE KERALA GRAMIN BANK (EMPLOYEES) PENSION REGULATIONS 2018. ```