Hon'ble Judges/Coram:
N.M. Jamdar and Anil L. Pansare

JUDGMENT

Anil L. Pansare, J.

1. Heard Dr. Renuka S. Sirpurkar, learned Advocate for the Petitioner and Mr. D.N. Mathur, learned Advocate for the Respondent.

2. Rule. Rule made returnable forthwith. Heard finally by consent of the parties.

3. The Petitioner who was lastly working as Senior Branch Manager with the Respondent-Bank, has retired on 31 May 2013 on attaining the age of superannuation. On 16 November 2015, a show cause notice came to be issued by the Respondent to the Petitioner, calling upon him to submit his comments on the lapses/irregularities allegedly committed by him while working as Senior Branch Manager, Amravati Branch, during the period from 26 July 2009 to 31 May 2013. The Petitioner submitted his response/comments vide communication dated 8 August 2016 and denied all the allegations. Thereafter, a Memorandum dated 13 July 2017 along with Articles of Charge and statement of allegations came to be served upon the Petitioner, which admittedly has been served after more than four years of the date of superannuation. The said Memorandum of Charges has been impugned before us.

4. We have heard both the sides.

5. The primary contention of the Petitioner is that the Respondent could not have initiated disciplinary proceedings after four years of his superannuation in absence of any Rule.

6. The question that requires answer in this Petition is, whether the show cause notice dated 16 November 2015 issued by the Respondent to the Petitioner, can be said to be sufficient compliance for initiation of disciplinary proceedings against the Petitioner, who stood retired on attaining the age of superannuation on 31 May 2013 i.e. prior to issuance of show cause notice.

7. Mr. D.N. Mathur, learned Advocate for the Respondent, has drawn our attention to Clause 48 of the Bank of Baroda (Employees') Pension Regulation, 1995 (for short, 'Employees' Pension Regulation, 1995') to contend that the competent authority i.e. the Respondent was well within its jurisdiction to issue show cause notice. Clause 48 of the Employees' Pension Regulation, 1995 provides that, the competent authority may withhold or withdraw a pension or a part thereof, and order recovery from pension of the whole or part of pecuniary loss caused to the Bank if the employee is found guilty of grave misconduct or negligence etc. during the period of his service in any departmental or judicial proceedings.

8. Mr. D.N. Mathur, learned Advocate contends that the Petitioner was reported to have committed certain acts or deeds of commission and omission while working as Senior Branch Manager at Amravati during the period from 26 July 2009 to 31 May 2013 and was served with the aforesaid notice, calling upon his comments. The charges include steps and actions on the part of the Petitioner which were prejudicial, detrimental and injurious to the interests of the Bank and that he did not discharge his duties with devotion or diligence and that he did certain acts which were likely to cause financial loss to the Bank and that he flouted the norms relating to sanction of loans and advances. Since his response to show cause notice was not satisfactory, the Respondent has rightly issued Memorandum, Articles of Charge and statement of allegations in terms of Regulations 6(3) of the Bank of Baroda Employees' (Discipline and Appeal) Regulation, 1976 (for short, 'Discipline and Appeal Regulation, 1976') read with Regulations 45 and 48 of the Employees' Pension Regulation, 1995.

9. Mr. D.M. Mathur, learned Advocate for the Respondent, has then drawn our attention to Regulation 20(3)(ii) of the Bank of Baroda (Officers') Service Regulations, 1979 (for short, 'Officers' Service Regulations, 1979'), which provides as under:-

"Regulation 20:

3(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."

10. Mr. D.N. Mathur, learned Advocate has accordingly argued that since the show cause notice was issued on 16 November 2015 i.e. after about two years of Petitioner's retirement, the bar under Regulation 48(2) of the Employees' Pension Regulation, 1995 will not be attracted.

Regulation 48(2) of the Employees' Pension Regulation, 1995, reads as under:

"48. Recovery of Pecuniary loss caused to the Bank.-

(1) ..................

(2) No departmental proceedings, if not instituted while the employee was in service, shall be instituted in respect of an event which took place more than four years before such institutions:

Provided that the disciplinary proceedings so instituted shall be in accordance with the procedure applicable to disciplinary proceedings in relation to the employees during the period of his service."

11. Mr. D.N. Mathur, learned Advocate for the Respondent, by referring to the show cause notice dated 16 November 2015 contends that explanation of the Petitioner was sought in respect of unauthorized sanction by him of loans and advances in the year 2012-2013. These events of the years 2012-2013 would fall within the bracket of four years from the date of occurrence of the events constituting misconduct. Thus, according to him, the show cause notice dated 16 November 2015 relating to unauthorized sanction by the Petitioner of loans sanctioned in the years 2012 and 2013 having been within 3 years, the disciplinary proceedings had commenced within four years from the date of occurrence of the events.

12. The above argument is based on the provision under Regulation 20(3)(ii) of the Officers' Service Regulations, 1979. According to Mr. Mathur, learned Advocate, issuance of show cause notice in terms of the said Regulations would amount to commencement of the disciplinary proceedings. Mr. Mathur, learned Advocate would then contend by referring to Regulation 20(3)(iii) of the Officers' Service Regulations, 1979 that the disciplinary proceedings which were deemed to be pending against the Petitioner in terms of Regulation 20(3)(ii), the Petitioner though retired on superannuation, the disciplinary proceeding will continue as if he was in service until the proceedings are concluded.

13. Lastly Mr. D.N. Mathur, learned Advocate would urge by relying upon a judgment in the case of Chairman and MD V.S.P. and others versus Goparuju Sri Prabhakaraharibabu (2016) 12 SCC 724., that all the procedural requirements having been complied by the Respondent, the Court may not interfere with the departmental proceedings. The Hon'ble Supreme Court in the aforesaid case has held that once it is found that all the procedural requirements have been complied with, the Courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. It is further held that the High Court in exercise of its jurisdiction under Article 226 of the Constitution of India also cannot, on the basis of sympathy or sentiment, overturn a legal order.

14. Mr. D.N. Mathur, learned Advocate then extended his argument by contending that at present only the departmental proceeding has been initiated. This Court should not interfere at this stage as the Petitioner will get an opportunity to plead his defence. Eventually, if the petitioner is held guilty, he has remedy to file Appeal in terms of the Discipline and Appeal Regulation, 1976. Thus, according to the Respondent, there is absolutely no substance in the Petition.

15. We do not find any merit in the aforesaid contentions. Dr. R.S. Sirpurkar, learned Advocate for the Petitioner, has rightly argued that mere issuance of show cause notice does not amount to initiation of departmental proceedings. What transpires from her argument is that the issue raised in the Petition has been substantially dealt with in the case of Canara Bank versus D.R.P. Sundharam MANU/SC/0175/2016 : (2016) 12 SCC 724. The Provisions of the Canara Bank (Officers') Service Regulation, 1979, which are in pari materia with the Officers' Service Regulations, 1979, fell for consideration before the Hon'ble Supreme Court. In the said Case the Respondent therein, who worked as Assistant General Manager of Canera Bank, was placed under suspension. Subsequently, he retired on superannuation. The chargesheet was then issued against him. Accordingly, the interpretation of Regulation 20(3)(iii) vis-a-vis Regulations 20(3)(i) and 20(3)(iv) was necessitated. The Regulations were taken up for consideration in paragraph 3 of the judgment, which reads as under:

"3. The relevant regulations which would govern the controversy that has arisen in the present case are Regulations 20(3)(i), 20(3)(ii) and 20(3)(iii) of Canara Bank (Officers') Service Regulations, 1979, which may be extracted herein below:

"20. Termination of service.-(1)-(2) * * * (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 payments of retirement benefits till the proceedings are completed and final order is passed thereon except his own contribution to CPF."

16. The aforesaid Regulations are identical to the Regulations of the Officers' Service Regulations, 1979. The question that fell for consideration before the Hon'ble Supreme Court was whether Regulation 20(3)(iii) is in continuation of Regulations 20(3)(i) and 20(3)(ii) or whether it contemplates a situation different from what has been contemplated under Regulations 20(3)(i) and 20(3)(ii).

The Hon'ble Supreme Court has observed in paragraph 6 as under:-

"6. We have read and considered the views expressed in UCO Bank & Anr. v. Rajinder Lal Capoor and in UCO Bank & Anr. v. Rajinder Lal Capoor. The matte has been exhaustively dealt with in paragraph 14 to 23 of the judgment in UCO Bank & Anr. v. Rajinder Lal Capoor3. The meaning of the expression "this Regulation" appearing in Regulation 20(3)(ii) on which much stress has been laid at the hearing by the learned counsel for the appellant; the use of different expressions/terminologies in Regulation 20(3)(ii) and Regulation 20(3)(iii), namely, "proceeding pending" and "proceeding initiated"; the content effect and purport of UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976 have all been considered to arrive at the conclusion that Regulation 20(3)(iii) is a standalone provision and what is contemplated thereunder is not in continuation of what is provided for and contemplated by the two earlier Regulations i.e. Regulation 20(3)(i) and Regulation 20(3)(ii)."

17. In paragraphs 8 and 9, the finding has been rendered as below:-

"8. . .......... From the above it would follow that by virtue of the provisions contained in Regulation 20(3)(iii), a disciplinary proceeding initiated by means of a charge-sheet prior to the retirement of a bank employee would continue even after his retirement in view of the deeming provision contained in the said Regulation 20(3)(iii) by which the officer is deemed to continue in service till completion of the proceedings.

9. In the present case, the proceedings have been initiated by submission of the charge-sheet after the retirement of the respondent. Having regard to the fact that the Regulations in force in Canara Bank are pari materia with those in UCO Bank considered in the aforesaid decision, we deem it appropriate to affirm the orders of the High Court and dismiss the appeal."