Summary of Question- Application of Mind in granting sanction for Prosecution.
Question- Whether independent application of mind by the sanctioning authority is required before granting sanction for prosecution.
Answer – Yes.
In this connection, it is relevant to refer to a decision of the Hon’ble Supreme Court in the case reported in AIR 1997 SC 3400. Short fact of this case was that Govt. did not grant sanction for prosecution ; writ petition was filed to sanction prosecution; the Hon’ble Court directed the secretary of the Department to accord sanction for prosecution. The Apex Court observed and held at para 19 and 32 of the judgment:
“19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.”
“32. By issuing a direction to the Secretary to grant sanction, the High Court closed all other alternatives to the Secretary and compelled him to proceed only in one direction and to act only in one way, namely, to sanction the prosecution of the appellant. The Secretary was not allowed to consider whether it would be feasible to prosecute the appellant; whether the complaint of Harshadrai of illegal gratification which was sought to be supported by "trap" was false and whether the prosecution would be vexatious particularly as it was in the knowledge of the Govt. that the firm had been black-listed once and there was demand for some amount to be paid to Govt. by the firm in connection with this contract. The discretion not to sanction the prosecution was thus taken away by the High Court.”
Summary of Question- Article 20(2) of the Constitution not applicable in service .
Question- Whether Article 20(2) of the Constitution of India is applicable in a Departmental or Administrative Enquiry.
Observation of the Hon’ble Supreme Court reported in AIR 1953 SC 325 is quoted below:
“ The words "before a court of law or judicial tribunal" are not to be found in article 20(2). But if regard be had to the whole background indicated above it is clear that in order that the protection of article 20(2) be invoked by a citizen there must have been a prosecution and punishment in respect of the same offence before a court of law or a tribunal, required by law to decide the matters in controversy judicially on evidence on oath which it must be authorised by law to administer and not before a tribunal which entertains a departmental or an administrative enquiry even though set up by a statute but not required to proceed on legal evidence given on oath. The very wording of article 20 and the words used therein :- "convicted", "commission of the act charged as an offence", "be subjected to a penalty", "commission of the offence", "prosecuted and punished", "accused of any offence", would indicate that the proceedings therein contemplated are of the nature of criminal proceedings before a court of law or a judicial tribunal and the prosecution in this context would mean an initiation or starting of proceedings of a criminal nature before a court
Summary of Question- Suspension of Award Staff of Bank if in custody for 48 hours
Question- Whether an employee of a Bank, to whom the provisions contained in Bi Partite Settlement dated 10.4.2002 is applicable, can be deemed to have been suspended if he has been in Custody for 48 or more consequent upon an FIR lodged against him.
1. Para 2 and 3(a) of the Bipartite Settlement dated 10.4.2002 are relevant in the context and the same is quoted below:-
“2. By the expression "offence" shall be meant any offence involving moral turpitude for which an employee is liable to conviction and sentence under any provision of law.
3(a). When in the opinion of the management an employee has committed an offence, unless he be otherwise prosecuted, the bank may take steps to prosecute him or get him prosecuted; and in such a case, he may also be suspended.”
2. Contents of para 2 and 3(a) of the said settlement speak about the following points:-
i) The offence is an offence involving moral turpitude ;
ii) The Management is required to “form an opinion’’ on the consideration of all relevant material available against the concerned employee that the alleged offence has, prima facie, been committed by the employee;
iii) After the said opinion is formed , the Management shall, unless he be otherwise prosecuted, take steps to prosecute the employee or get him prosecuted by filing a complaint case or an FIR;
iv) The words " unless he be otherwise prosecuted " mean that no step in the matter of prosecution of the employee is to be taken by the Management if the employee has already been prosecuted at the instance of any other person;
v) If the employee has been otherwise prosecuted or the Management has taken step to prosecute him or get him prosecuted, the “employee may also be suspended”.
3. Therefore, it is the condition precedent for suspending an employee under the said para 3(a) that the “ Management has formed an opinion” that the employee has, prima facie, committed the alleged offence and the offence involves moral turpitude. There is no provision in the said settlement to suspend the employee simply because he has been arrested by police and has been in custody for 48 hours or more nor is there any provision for deemed suspension.
Summary of Question- Deemed Suspension of officer of Bank if in custody for 48 hours.
Question – Whether an officer of a Bank can be deemed to be under suspension if the officer has been under custody exceeding 48 hours.
Answer- It depends on the Service Rules of the Bank. if there is a provision for deemed suspension in the Service Rules of a Bank then only its officer can be under deemed suspension for being in custody exceeding 48 hours. Some Banks’ service Rules provide for deemed suspension but similar provision do not find place in other bank.
1. Supposing one Bank’s Service Rules contains a provision as under-
An officer employee shall be deemed to have been placed under suspension by an order of the competent authority -
(a) with effect from the date of his detention, if he is detained in custody, whether on a criminal charge or otherwise, for a period exceeding forty-eight hours.
1.1. As there is a provision in the said Service Rule for deemed suspension , an officer of the Bank shall be under deemed suspension.
2. But , supposing, other Bank’s Service Rule do not contain above provision but the following provision -
If an officer who is detained under custody whether on a criminal charge or otherwise for a period exceeding forty-eight hours is placed under suspension by the Competent Authority, it shall be open to the Competent Authority to give effect to such suspension from a retrospective date not earlier than the date of such detention.
2.1. In this case, the Service Rule provides that an officer may be suspended from a retrospective date but not a date earlier than the date of detention, only if the officer has been placed under suspension by the decision of Competent Authority. As there is no provision for ‘deemed suspension’ in case of detention under custody exceeding 48 hours, the officer cannot be deemed to be under suspension but when the competent Authority decides for suspension then the suspension may also be ordered from a retrospective date of detention.
Summary of Question- Award Staff promoted to Bank , Officers’ Rule applies .
Question- When a Bank’s Award Staff employee has been promoted to officer, whether he should be charged as per misconduct in Service Rules applicable to Award staff or according to misconduct in the Service Rules applicable to Officers, in respect of his alleged act / omission while he was Award Staff.
Answer- The Officer should be charged as per the Misconduct applicable to an Award Staff for his act / omission while he was Award Staff. But Disciplinary Proceedings should be conducted as per the Officers’ Service Rules.
1. The case reported in 2000(1) LLJ 1487 filed by the Bank against a Single Bench Judge of the the Hon’ble Andhra Pradesh High Court is relevant. In this case, Disciplinary proceedings were initiated under Officers’ Service Rule as the employee was promoted to Officer. One of the charges was –“You had resorted to outside borrowings and placed yourself under pecuniary obligation to a person having dealings with the bank and also caused negotiation of a SB withdrawal form drawn on your account without sufficient balance therein. Further you had obtained a loan from another Bank, without the knowledge of your controlling Authority”
1.1. The Hon’ble single Judge held that the said allegation (quoted in italics) does not constitute misconduct under the Disciplinary Rule governing Award Staff.
1.2. With regard to the two other charges, the Hon’ble Single Judge held the same to be incompetent and without jurisdiction in the sense that the procedure obtaining under Officers’ Service Rules was applied whereas the procedure governing the Award Staff should have been applied.
2. The Hon’ble Division Bench did not agree with the views of the Hon’ble Single Judge that Disciplinary Proceedings should be conducted as per Award Staff service Rule after promotion. But the Hon’ble Division Bench held that even after the employee rises to the level of an officer, the regulations governing the workmen should continue to apply in respect of the past misconduct.
2.1. A Division Bench decision of the Hon’ble Madras High Court in Canara Bank vs. K. Chandran decided on 29.6.2001 observed-
“ Merely because the misconduct related to the period while the respondent was an award staff, it cannot be taken that even after his becoming an officer, the respondent could insist for a procedure prescribed under the bipartite settlement to be adopted”
3. With regard to the quoted allegation in para 1 above, the Division Bench of the Andhra Pradesh High Court affirmed the view taken by the Single Judge that a misconduct for which he is charged must answer the description of the misconduct as per the disciplinary rules governing the workman, if acts giving rise to the charges were committed during the period when he was employed as a workman. Whether or not there was a misconduct on the part of the charged employee must necessarily be judged with reference to the point of time when he is alleged to have committed the misconduct. In this connection, the Division Bench also relied on the Supreme Court decision reported in 1990(I) LLJ 32 in which it is observed : "It is a basic principle of natural justice that no one can be penalised on the ground of conduct which was not penal on the day it was committed."
Summary of Question- Consequence of Conviction of Offence involving Moral turpitude .
Question- Where a Bank employee convicted of an offence involving Moral Turpitude prefers appeal and the appellate court stays his sentence, whether provisions of section 10(1)(b)(i) of the Banking Regulation Act not to continue a Bank employee who has been convicted of an offence involving Moral turpitude, applies and such employee shall not be continued in the Employment of the Bank.
Answer- Yes. Such employee cannot be continued in the employment of the Bank.
1. In this connection, it is relevant to refer to a decision of the Hon’ble Supreme Court in the case reported in 1995 (2) SCC 513] , a few fact pertaining to case was that Ramesh Narang filed a Company Petition before the Company Judge in the High Court of Bombay challenging the validity of a Board meeting on the ground that the appellant (Rama Narang) being convicted for an offence involving moral turpitude could not hold office of the Managing Director in view of the provisions of Section 267 of the Companies Act, which lays down that no company shall appoint or employ, or continue the appointment or employment of any person as its managing or whole-time Director, who is, or has at any time been convicted by a Court of an offence involving moral turpitude. Rama Narang was tried by the Additional Sessions Judge, Delhi and was convicted for having committed certain offences and was sentenced to rigorous imprisonment and fine. On appeal, the High Court of Delhi ordered as under:
“ Accused be released on bail on his furnishing a personal bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial judge. The operation of the impugned order shall remain stayed”
1.2. The Hon’ble Apex Court held at para 20 of the judgment:
“---since the interim order of stay did not specifically extend to the stay of conviction for the purpose of avoiding the disqualification under Section 267 of the Companies Act, there is no substance in the appeal and the appeal is, therefore, dismissed……”
2. In the light of the said decision of the Apex Court (supra) , Section 10(1)(b)(i) of the Banking Regulation Act shall be applicable if appellate Court only stays sentence but does not stays conviction.
Summary of question- Offences involving moral turpitue.
Question – Which offences involve Moral Turpitude.
Answer- Neither there is statutory definition of the term “Moral Turpitude” nor the Service Rules define this term. But there is dictionary meaning of this term ; courts have also interpreted this term.
In brief, if an act leading to a conviction was such as could shock the moral conscience of society in general, the offence involves moral turpitude. It depend upon the facts of each case whether the act leading to conviction involves moral turpitude. Most serious offences involving moral turpitude would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw
1. In P. Ramnatha Aiyer's Law Lexicon (2nd Edition) the phrase Moral Turpitude is defined- " Anything done contrary to justice, honesty, principle, or good morals: an act of baseness, vileness or depravity in the private and social duties which a man owes to his fellow man or to society in general , contrary to the accepted and customary rule of right and duty between man and man”
2. Vide AIR 1963 All 527, following tests should ordinarily be applied for judging whether a particular offence does or does not involve moral turpitude :-
- Whether the act leading to a conviction was such as could shock the moral conscience of society in general .
- Whether the motive which led to the act was base one, and
- Whether on account of the act having been committed the perpetrator could be considered to be of a depraved character or a person who was to be looked down upon by the society.
3. In the case of Gatru Mal vs. RBI reported in 1994(1) PLJR,720, the Hon'ble Patna High Court observed at para 7 as under :-
" A precise definition of right and wrong having an universal application to all societies at all points of time is not feasible. The concept is varying in accordance with the belief of the people. An act which may be considered unethical and base by certain people may not be so looked down upon in another country and may be considered with approbation in still another society. It is also dependent on the time factor. Whenever a question arises for deciding whether particular act involves moral turpitude or not, it will have to be examined in the background of the moral character of the relevant society and no absolute standard can be laid down."
4. The Hon’ble Supreme Court in the case of Pawan Kumar vs. State of Haryana [1996(4) SCC 17] held –
“ Moral turpitude is an expression which is used in legal as also societal parlance to describe conduct which is inherently base, vile, depraved or having any connection showing depravity.”
5. In the case of Allahabad Bank vs. Deepak Kumar Bhola [1997 (4) SCC 1], the Apex Court relied on the Pawan Kumar’s case supra and held – “What is an offence involving moral turpitude must depend upon the facts of each case. But whatever may be the meaning which may be given to the term moral turpitude it appears to us that one of the most serious offences involving moral turpitude would be where a person employed in a banking company dealing with money of the general public, commits forgery and wrongfully withdraws money which he is not entitled to withdraw”
Summary of Question- Probation of Award Staff for 6 months.
Question- Whether a Award Staff employee of a Bank on probation , to whom Sastry Award and Desai Award as to probation are applicable, can be deemed to be confirmed in service if he has been allowed to continue to the employment after expiry of probation period.
1. With regard to probation and confirmation, para 495 of Sastry Award is relevant which reads as under:-
"...ordinarily the period of probation should not exceed 6 months. However, in case persons whose work is not found to be satisfactory during the said period but who are likely to improve and give satisfaction if a further opportunity is given to them, the period may be extended by three months provided due notice in writing is given to them and their consent in writing is obtained before extension of their period of probation. In all other cases probationers after expiry of the period of six months should be deemed to have been confirmed, unless their services are dispensed with on or before the expiry of the period of probation………."
1.1. Desai Award, vide its para 21.18, modified the para 495 of Sastry Award to this effect that consent of the probationer is not required before extension of probation.
2. Service rules as to confirmation emanating from para 495 of Sastry Award read with para 21.18 of Desai Award can be summarized as under:-
i . Period of probation cannot exceed 6 months;
ii. Probation can be extended for a period of 3 months before expiry of initial 6 months' probation;
ii. There is a provision of deemed confirmation after expiry of six months if it has not been extended for another three months;
iii. There is no provision for further extension after expiry of the extended period of 3 months.
3. One point which may also arise in this regard is whether the provision of deemed confirmation may also be applicable if no decision is taken as to termination of an employee before expiry of even extended period of 3 months and the employee is allowed to be in employment for a substantial period after expiry of such 3 months.
3.1. In this connection, reference may be made to a Constitution Bench decision of the Hon'ble Supreme court in State of Punjab vs. Dharam Singh [AIR 1968 SC 1210] in which Rule 6(3), which reads as under, of the relative service rule was interpreted by the Hon'ble supreme Court:-
" On the completion of the period of probation the authority competent to make appointment may confirm the member in his appointment or if his work or conduct during the period of probation has been in his opinion unsatisfactory he may dispense with his services or may extend his period of probation by such period as he may deem fit or revert him to his former post if he was promoted from some lower post.
Provided that the total period of probation including extensions, if any, shall not exceed three years. "
3.2. The Apex Court observed and held at 5 of the decision as quoted below:-
" In the present case, r. 6(3) forbids extension of the period of probation beyond three years. Where, as in the present case, the service rules fix a certain period of time beyond which the probationary period cannot be extended, and an employee appointed or promoted to a post on probation is allowed to continue in that post after completion of the maximum period of probation without an express order of confirmation, he cannot be deemed to continue in that post as a probationer by implication. The reason is that such an implication is negatived by the service rule forbidding extension of the probationary period beyond the maximum period fixed by it. In such a case, it is permissible to draw the inference that the employee allowed to continue in the post on completion of the maximum period of probation has been confirmed in the post by implication"
3.3. The ratio of the said case of Dhram Singh appears to be that where the relative service rule provides that probation cannot exceed beyond certain period and an employee is allowed to continue without an order of confirmation then the only possible view, in absence of anything to the contrary in the service rules, is that the employee be regarded as having been confirmed by necessary implication.
Summary of Question- Loan Recovery from Subsistence Allowance.
Question – Whether a loan taken by an employee can be recovered from subsistence allowance of the employee.
The Hon’ble Karnataka High Court in the case reported in 2004 (3)LLJ 726 KAR, the petitioner sought for a direction to the Bank to pay subsistence allowance without making deductions of loan from subsistence allowance. The Hon’ble High Court Court referred to the following observation of the Supreme Court in the case reported in 1999 (I)LLJ 1094:
"29. Exercise of right to suspend an employee may be justified on facts of a particular case. Instances, however, are not rare where officers have been found to be afflicted by 'suspension syndrome' and the employees have been found to be placed under suspension just for nothing. It is their irritability rather than the employee's trivial lapse, which has often resulted in suspension. Suspension notwithstanding, non-payment of subsistence allowance is an inhuman act which has unpropitious effect on the life of an employee. When the employee is placed under suspension, he is demobilised and the salary is also paid to him at a reduced rate under the nick name of 'subsistence allowance' so that the employee may sustain himself. ......."
The Hon’ble High Court, thereafter, held –“ In the given circumstances and on the facts of this case and in the absence of any permissible deduction in terms of any legal provisions, respondents could not have deducted towards the loan amount from the subsistence allowance payable to the petitioner.”
Summary of Question- Reinstatement on Acquittal
Question- Whether an employee of a Bank is entitled to be reinstated on acquittal by Appellate Court in a case where the employee’s service was terminated after his conviction by trial court for an offence involving moral turpitude.
Answer– There is a provision in section 10(1)(b)(i) of the Banking Regulation Act to the effect that no banking company shall continue in employment of an employee if the employee has been convicted of an offence involving moral turpitude. There also remains some provision in every Bank’s Service Rule to the effect that the such employee is not to continue in the Bank’s service who has been convicted of an offence involving moral turpitude. As such, when a bank employee is convicted by Trial Court for an offence and that offence involves moral turpitude, the Bank cannot continue the employee in the Bank’s service.
If the said employee is acquitted in appeal and approaches the Bank for reinstatement on the ground that he has been acquitted by Appellate Court, he is not to be reinstated automatically but the reinstatement is dependent on the provisions contained in the service rule as to reinstatement. If there is no provision in the Service Rule for reinstatement, there cannot be reinstatement. If there is provision in the Service Rule, the bank may also start disciplinary against the employee in accordance with the service rule.
1. The Apex Court in AIR 2013 SC 14 held that in the absence of any provision in the service rule for reinstatement, if an employee is honourably acquitted by a Criminal Court, no right is conferred on the employee to claim any benefit including reinstatement.
2. Acquittal in a criminal case would not operate as a bar for drawing up of a disciplinary proceeding against a delinquent. It is well settled principle of law that yardstick and standard of proof in a criminal case is different from the one in disciplinary proceedings. While the standard of proof in a criminal case is proof beyond all reasonable doubt, the standard of proof in a departmental proceeding is preponderance of probabilities. [Employers Management West Bokaro Colliery of TISCO Ltd. Vs Ram Pravesh Singh AIR 2008 SC 1162]
3. An officer of Oriental Bank Officer was removed from Service by DA after proper enquiry. Aggrieved thereby, he challenged the order by filing Writ Petition. A Single Judge of the Hon’ble High Court was of the view that the main allegation of misappropriation of Rs. 10 lacs was the crux in both departmental proceedings and the criminal charge and that the Gurgaon police after investigation has closed the case as unfounded before the CJM, Gurgaon, therefore, nothing substantial remains in the matter for proceedings against the appellant. The Hon’ble Single Judge was further of the view that the argument of the Bank that departmental proceedings and the criminal case are different does not hold good and his removal from service was incorrect. The Apex court did not agree to the views of the single judge of the High Court and observed :–
“In our view, the findings recorded by the learned Single Judge are fallacious. This Court has taken the view consistently that acquittal in a criminal case would be no bar for drawing up a disciplinary proceeding against the delinquent officer. It is well settled principle of law that the yardstick and standard of proof in a criminal case is different from the disciplinary proceeding. While the standard of proof in a criminal case is a proof beyond all reasonable doubt, the proof in a departmental proceeding is preponderance of probabilities. It is not the case of the appellant that the enquiry has been conducted without affording an opportunity to the appellant or behind the back of the appellant and thereby violated the principle of natural justice.” [Suresh Pathrella vs. Oriental Bank of Commerce AIR 2007 SC 199]
4. Vide the case reported in AIR 2005 SC 4217-
“As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with Rules and Regulations in force. The two proceedings - criminal and departmental - are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with service Rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt’ he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside”
5. “It is fairly well settled that the approach and objective in criminal proceedings and the disciplinary proceedings are altogether distinct and different. In the disciplinary proceedings the preliminary question is whether the employee is guilty of such conduct as would merit action against him, whereas in criminal proceedings the question is whether the offences registered against him are established and if established what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial are conceptually different. (State of Rajasthan v. B. K. Meena and Ors. (1997) I LLJ 746 SC. In case of disciplinary enquiry the technical rules of evidence have no application. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive at the conclusion whether or not the delinquent has committed misconduct.”[ Lalit Popli v. Canara Bank and Ors AIR 2003 SC 1796]
6 . A Government servant, who was convicted under Section 302 of the IPC, was, on appeal, acquitted by the High Court for want of evidence, as all the material witnesses had turned hostile. In a criminal appeal by the State, the Supreme Court was of the view that the High Court was justified in holding that the prosecution had failed to bring home the charges. The Supreme Court, however, observed that the acquittal in a criminal case on the witnesses turning hostile would not come in the way of disciplinary proceedings being initiated or continued in respect of the same charges. The observation of the Supreme is :-
“However, we make it clear that the acquittal of the respondent shall not be construed as a clear exoneration of the respondent, for the allegations call for departmental proceedings, if not already initiated, against him". [ (2000) 10 SCC 177]
Summary of Question – Suspension of Bank Officer is not mandatory
Question – Whether an officer of a Bank, who is governed by the Service Rule containing the following provisions with regard to suspension , is mandatorily to be suspended or it is in the discretion of the Bank to suspended him or not:
“An Officer Employee may be placed under suspension by the competent authority:
(a) where a disciplinary proceedings against him is contemplated or is pending; or
(b) where a case against him in respect of any criminal offence is under investigation , inquiry or trial”
Answer- It is in the discretion of the Bank to suspend or not.
The Hon’ble Kerala High Court in the case reported in 2006 (2) LLJ 171 has held at para 8 that Regulation 12(1) of Syndicate Bank Employees’ (Discipline and Appeal) Regulations [which contained the above quoted provision] deals with a case where the competent authority has the discretion to place an officer employee under suspension.
Summary of Question - Withholding of Pension .
Question – Whether an employer can withhold pension.
Answer- An employer can withhold Pension only if there is provision to this effect in the service rule / pension rule applicable to the employee.
1. In case of Central Government / State Governments employees, there is specific provision by which the President / Governor has been given right to withhold pension. Under Rule 69(1) of the CCS (Pension) Rules, 1972, the President has right, inter alia, to withhold, pension. Similarly, for example, Rule 10(1) of West Bengal Services (Death –cum-Retirement Benefit) Rules, gives right to the Governor withhold pension.
2. It is worthwhile to mention here a decision of the Hon’ble Supreme Court in the case of State of West Bengal vs. Haresh C. Banerjee & others [2006(III) LLJ 806] which was appeal against the order of the Hon’ble Calcutta High Court vide which the said Rule 10(1) was held to be ultras vires the provisions of Articles 19(1)(f) and 31(1) of the Constitution of India. High Court was of the view that the pension was a property and its payment does not depend upon the discretion of the Govt. ; pension is not a bounty payable at the sweet-will and pleasure of the Govt. and to receive pension is a valuable right of a Govt. is a well–settled proposition. The Hon’ble Supreme Court observed that the question is not about the deprivation of the said right by the Government by an executive order but is about the constitutional validity of Rule 10(1) providing for withholding of pension or part thereof in certain cases. The Apex Court set aside the judgment of the Hon’ble High Court to the extent it declares the said Rule 10(1) ultra vires.
Summary of Question- About Resignation
Question- What are the types of Resignation and when it is effective.
In this connection, following observation of the Hon’ble Supreme Court in a case reported in 1993 (2) SCC 725 is relevant :
“As pointed out by this court, 'resignation' means the spontaneous relinquishment of one's own right and in relation to an office, it connotes the act of giving up or relinquishing the office. It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment. It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it. If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority. The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti. A resignation may also be prospective to be operative from a future date and in that event it would take effect from the date indicated therein and not from the date of communication. In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken. As to whether the act of relinquishment of an office is unilateral or bilateral in character would depend upon the nature of the office and conditions governing it.”
Summary of Question- Withdrawal of Resignation
Question- Whether an employee is entitled to withdraw resignation before the Resignation becomes effective.
Answer – Yes, if the service rules does not require permission for withdrawal of resignation.
In the case reported in (1989) ILLJ 368 SC , an employee / officer resigned from service of the Bank by a communication dated January 21, 1986 to be effective from June 30, 1986. The Deputy General Manager who was the competent authority under the Service Regulations, accepted the resignation as per the letter of resignation i.e. with effect from June 30, 1986. The employee, however, received a letter from the Bank on February 07, 1986 informing him that his resignation letter had been accepted by the competent authority with immediate effect by waiving the condition of notice and consequently he was being relieved from the service of the Bank with effect from that day, i.e. from February 07, 1986. The employee, therefore, filed a writ petition challenging the validity of the purported acceptance of his resignation with effect from February 07, 1986 and for a direction to the Bank to treat him in service upto June 30, 1986 by granting all consequential benefits. A further development took place after the filing of the writ petition and before it came up for hearing that on 15th April, 1986, the employee wrote a letter to the bank by which he purported to withdraw the resignation letter dated 21st January, 1986. The Supreme Court held as quoted below:
“…..Clause (2) is carefully worded keeping both these requirements in mind. It gives the employee a period of adjustment and rethinking. It also enables the bank to have some time to arrange its affairs, with the liberty, in an appropriate case, to accept the resignation of an employee even without the requisite notice if he so desires it. The proviso in our opinion should not be interpreted as enabling a bank to thrust a resignation on an employee with effect from a date different from the one on which he can make his resignation effective under the terms of the regulation. We, therefore, agree with the High Court that in the present case the resignation of the employee could have become effective only on or about 21st April, 1986 or on 30th June, 1986 and that the bank could not have "accepted" that resignation on any earlier date. The letter dated 7th February, 1986 was, therefore, without jurisdiction”
“The result of the above interpretation is that the employee continued to be in service till April 21, 1986 or June 30, 1986, on which date his services would have come normally to an end in terms of his letter dated January 21, 1986. But, by that time, he had exercised his right to withdraw the resignation. Since the withdrawal letter was written before the resignation became effective, the resignation stands withdrawn, with the result that the respondent continues to be in the service of the bank. It is true that there is no specific provision in the regulations permitting the employee to withdraw the resignation. It is, however, not necessary that there should be any such specific rule. Until the resignation becomes effective on the terms of the letter read with Regulation 20, it is open to the employee, on general principles, to withdraw his letter of resignation. That is why, in some cases of public services, this right of withdrawal is also made subject to the permission of the employer. There is no such clause here.”
Summary of Question- Employee’s right of Resignation
Question- Whether an employee has right to resign.
Answer – Yes. But the resignation must be in accordance with Service Rules by which the employee is governed.
In CIVIL APPEAL NO.7822 OF 2011 ,decided on 1st. Nov. 2018, the Hon’ble Supreme Court observed as under:
"To resign is a right of an employee who cannot be forced to serve in case he is not willing until and unless there is some stipulation in the rules or in the terms of appointment or disciplinary proceedings is pending or contemplated which is sought to be avoided by resigning from the services"
Summary of Question- Compassionate Appointment born from void marriage
Question- Whether any condition, in an employer’s Circular /Guidelines for Compassionate Appointment excluding children from void marriage from being considered for Compensation Appointment, is a valid condition in the eyes of Law.
Answer – No.
In CIVIL APPEAL No.12015 OF 2018 , decided on 11 December 2018, the Hon’ble Supreme Court observed and held as under :
"The real issue in the present case, however, is whether the condition which has been imposed by the circular of the Railway Board under which compassionate appointment cannot be granted to the children born from a second marriage of a deceased employee (except where the marriage was permitted by the administration taking into account personal law, etc) accords with basic notions of fairness and equal treatment, so as to be consistent with Article 14 of the Constitution... "
".. We are here concerned with the exclusion of children born from a second marriage. By excluding a class of beneficiaries who have been deemed legitimate by the operation of law, the condition imposed is disproportionate to the object sought to be achieved. Having regard to the purpose and object of a scheme of compassionate appointment, once the law has treated such children as legitimate, it would be impermissible to exclude them from being considered for compassionate appointment. Children do not choose their parents. To deny compassionate appointment though the law treats a child of a void marriage as legitimate is deeply offensive to their dignity and is offensive to the constitutional guarantee against discrimination."
"...... The exclusion of one class of legitimate children from seeking compassionate appointment merely on the ground that the mother of the applicant was a plural wife of the deceased employee would fail to meet the test of a reasonable nexus with the object sought to be achieved. It would be offensive to and defeat the whole object of ensuring the dignity of the family of a deceased employee who has died in harness. It brings about unconstitutional discrimination between one class of legitimate beneficiaries – legitimate children."
Summary of Question- Parity of Pay Scale
Question- Whether one can claim parity of pay scale without there being complete identity between posts.
Answer – No.
In CIVIL APPEAL NO. 193 OF 2019, decided on 8th. January 2019, the Hon’ble Supreme Court referred to earlier judgments of Apex court, and observed and held :
"Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed. Merely on the ground that Sub Fire Officers are categorised in Group XII along with Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors cannot be a ground for seeking parity of pay scale."
" In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government."
" Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:-
“29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC 235.) “Non-uniformities would not in all events violate Article 14.” Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Others v. State of Bihar and Others (1996) 5 SCC 125, Associate Banks Officers’ Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1)."