STATE BANK OF INDIA & ORS versus KAMAL KISHORE PRASAD on 9 January 2023

1. Leave granted.

2. The present appeal is directed against the judgment and orderdated 01.02.2018 passed by the High Court of Judicature at Patna inLPA No. 2035 of 2016, whereby the High Court has dismissed the appealfiled by the Appellant-Bank and confirmed the order passed by the SingleBench.

3. The short facts giving rise to the present petition are that therespondent while posted as a Branch Manager at Marufganj Branchand at various other branches, was found to have committed variouslapses, in respect of which he was suspended on 14.06.1993 in terms ofRule 50A(i)(a) of SBIOSR, 1992. On the departmental proceedingshaving been conducted against him, the Inquiry Authority had submittedits report on 09.03.1998, whereby some of the allegations were found tobe proved and some were found to be partly proved. The DisciplinaryAuthority agreed with some of the findings recorded by the InquiryAuthority and called upon the respondent to make his submissions onthe same. However thereafter the matter was sent to the AppointingAuthority, which imposed the penalty of “Dismissal from Service” asper the order dated 11.08.1999.

4. The respondent being aggrieved by the said order had filed aWrit Petition being no. 2739 of 2000 before the High Court which cameto be allowed by the Single Bench vide order dated 26.03.2003. TheAppellant-Bank aggrieved by the said order had filed an LPA being no.378 of 2003. On 09.05.2003, the Division Bench stayed theimplementation of the order dated 26.03.2003 passed by the Single Bench,however finally dismissed the said LPA vide order dated 22.04.2010. Inthe meantime, the respondent attained the age of superannuation on30.11.2009. The Appellant-Bank having filed SLP (C) No. 16541 of 2010challenging the order dated 22.04.2010 passed by the Division Bench, A

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Athe same came to be allowed by this Court on 25.11.2013. While allowingthe SLP, this Court observed as under:

“10. We have heard learned counsel for the parties to the lis.

11. The Writ Court while deciding the writ petition filed by therespondent against the orders passed by the Appointing Authorityhad followed the dicta of this court wherein it is said that theBperson who hears the matter should necessarily pass an order.The Division Bench of the High Court in its judgment has referredto the subsequent decisions of this Court. In our opinion, we neednot have to refer to those decisions. It is now a well settled principlethat the person who hears the matter requires to pass an order.

C12. Since, that is the view of the Learned Single Judge, we are ofthe opinion that such a view cannot be taken exception to by us.However, the Division Bench while rejecting the Letters PatentAppeal filed by the appellant-bank has made certain observationswhich in our opinion, would not arise in the matter of this nature.Therefore, we cannot sustain the judgment and order passed byDthe Division Bench of the High Court.

13. In the result, we allow this appeal and set aside the judgmentand order passed by the Division Bench of the High Court inLetters Patent Appeal No.378 of 2003. Since we are told that thedelinquent officer has already retired from service on attainingthe age of superannuation, we now direct the Appointing AuthorityEto take appropriate decision as expeditious as possible, at any ratewithin two months from the receipt of copy of this order.

14. All the contentions of all the parties are kept open. Orderedaccordingly.”

5. In view of the above order passed by this Court, the AppointingFAuthority issued a show-cause notice to the respondent on 06.02.2014,to which the respondent submitted his response on 10.02.2014. TheAppointing Authority after granting personal hearing to the respondenton 14.02.2014, passed an order on 17.02.2014 imposing upon therespondent the penalty of “Dismissal from Service” in terms of Rule67(J) of SBISOR w.e.f. 11.08.1999 and treating his period of suspensionGas not on duty.

6. Being aggrieved by the said order passed by the AppointingAuthority, the respondent filed Departmental appeal before the AppellateAuthority on 24.02.2014, which came to be dismissed on 09.08.2014.The respondent therefore again approached the High Court by way offiling CWJC No. 10192 of 2014. The Single Bench of the High CourtHvide the order dated 22.08.2016 allowed the said petition, and quashed and set aside the order of dismissal passed by the Appellant-Bank anddirected the Appellant-Bank to pay all the consequential benefits i.e.,arrears of salary and retiral benefits within 3 months thereof. Theaggrieved appellant-bank filed LPA being no. 2035 of 2016 on 17.10.2016,which came to be dismissed by the Division Bench vide the impugnedorder dated 01.02.2018.

7. The learned ASG Mr. Balbir Singh for the Appellant-Bankvehemently submitted that the High Court had committed gross error inconfirming the order passed by the Single Bench, and in misinterpretingthe Rule 19(1) and 19(3) of the SBIOSR, 1992. According to him, thisCourt in the first round of litigation had allowed the appeal filed by theAppellant-Bank and set aside the order passed by the Division Bench,and while observing that the person who hears the matter requires topass an order, had directed the Appointing Authority to take appropriatedecision within 2 months, keeping all the contentions of the parties open.The appointing authority, therefore had issued a show-cause notice tothe respondent and after giving him an opportunity of hearing had passedthe order of dismissal, which was wrongly set aside by the Single Benchand by the Division Bench.

8. However, the learned counsel Mr. Kripa Shankar Prasadappearing for the respondent submitted that an affirmative action wasexpected to be taken by the Appellant-Bank in view of the order passedby the Supreme Court on 25.11.2013, as the respondent had alreadyattained the age of superannuation pending the proceeding before theHigh Court. He further submitted in the said order the Supreme Courthad set aside the order of Division Bench, however had agreed with theview expressed by the Single Bench that as per the settled legal principle,the person who hears the matter is required to pass an order. Accordingto him, the Supreme Court had granted the liberty only to the extent ofdirecting the Appointing Authority to take appropriate action in accordancewith law as the respondent had attained the age of superannuation. Underthe circumstances, the Appointing Authority was required to take stepseither to extend the service of the respondent in terms of Rule 19(1), orto continue the disciplinary proceedings, even after the superannuationof the respondent under Rule 19(3) of the Rules, however the Appellant-Bank did not take recourse to any of the said rules. He further submittedthat the discretion to continue with the disciplinary proceedings had tobe exercised as an affirmative action by taking a conscious decision,which the Appointing Authority of the Appellant-Bank had failed to take,and on the contrary passed the order of dismissal with retrospectiveeffect which was not legally permissible.

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9. Since much reliance has been placed by the learned counselappearing for the respondent on Rule 19(1) and 19(3) of the SBIOSRRules, the same are reproduced for the sake of convenience.“19.(1) An officer shall retire from the service of the Bank onattaining the age of fifty-eight years or upon the completion ofthirty years’ service or thirty years’ pensionable service if he is amember of the Pension Fund, whichever occurs first.

Provided that the competent authority may, at its discretion,extend the period of service of an officer who has attained theage of fifty-eight years or bas completed thirty years’ service orthirty years’ pensionable service as the case may be, should suchextension be deemed desirable in the interest of the Bank, sohowever, that the service rendered by the concerned officerbeyond 58 years of age except to the extent of the period of leavedue at that time will not count for purpose of pension.

Provided further that an officer who had joined the serviceof the Bank either as an officer or otherwise on or after July, 19,1969 and attained the age of 58 years shall not be granted anyfurther extension in service.

Provided further that an officer may, at the discretion ofthe Executive Committee, be retired from the Bank’s service afterhe has attained 50 years of age or has completed 25 years’ serviceor 25 years’ pensionable service as the case may be, by givinghim three months’ notice in writing or pay in lieu thereof.

Provided further that an officer who has completed 20 years’service or 20 years’ pensionable service, as the case may be,may be permitted by the competent authority to retire from theBank’s service, subject to his giving three months’ notice or payin lieu thereof unless this requirement is wholly or partly waivedby it.

19. (2) .......... …… ….. .......

19. (3) In case disciplinary proceedings under the relevantrules of service have been initiated against an officer before heceases to be in the Bank’s service by I the operation of, or byvirtue of, any of the said rules or the provisions of these rules, thedisciplinary proceedings m’ay, at the discretion of the ManagingDirector, be continued and concluded by the authority by whichthe proceedings were initiated in the manner provided for in thesaid rules as if the officer continues to be in service, so however,that he shall be deemed to be in service only for the purpose ofthe continuance and conclusion of such proceedings.

STATE BANK OF INDIA & ORS. v. KAMAL KISHOREPRASAD [BELA M. TRIVEDI, J.]

STATE BANK OF INDIA & ORS. v. KAMAL KISHOREPRASAD [BELA M. TRIVEDI, J.]

Explanation: An officer will retire on the last day. of themonth in which he completes the stipulated service or age ofretirement.”

10. On the bare perusal of the said Rules it clearly transpires thatas per Rule 19(1) of the Rules, an officer could retire from the serviceof the bank on attaining the age of 58 years or upon the completion of 30years’ service or 30 years’ of pensionable service if he is a member ofthe Pension Fund whichever occurs first, subject to the provisos mentionedtherein. As per the Rule 19(3), in case the disciplinary proceedings underthe relevant rules of service have been initiated against an officer beforehe ceases to be in the Bank’s service by operation of, or by virtue of anyof the rules, the disciplinary proceedings may at the discretion ofManaging Director be continued and concluded, as if the officer hadcontinued to be in service. However, the officer in that case shall bedeemed to be in service only for the purpose of the continuance andconclusion of such proceedings.

11. So far as the facts of the present case are concerned, thedisciplinary proceedings against the respondent were already initiatedand had stood concluded, culminating into dismissal from service as perthe order dated 11.08.1999 passed by the Appointing Authority. The saidorder was challenged by the respondent by filing the Writ Petition, whichcame to be allowed by the Single Bench on 26.03.2003 whereby theorder of dismissal was set aside, nonetheless the Appellant-Bank havingpreferred the LPA No. 378 of 2003, the Division Bench had stayed theoperation and implementation of the said order passed by the SingleBench on 09.05.2003. The said LPA came to be dismissed on 22.04.2010,in the meantime on 30.11.2009, the respondent attained the age ofsuperannuation i.e., during the time, when the operation of the order ofSingle Bench was stayed. Thus, the order of Single Bench setting asidethe order of dismissal passed by the Appointing Authority having beenstayed by the Division Bench, the respondent could not be deemed tohave continued in service, and also when he had attained the age ofsuperannuation on 30.11.2009. Thereafter, the order of Division Benchdated 22.04.2010 passed in the LPA 378 of 2003 having been set asideby this Court while allowing the appeal filed by the Appellant-Bank videthe order dated 25.11.2013, again it could not be said that the respondentwas continued in service, till he attained the age of superannuation.

12. The reliance placed by the learned counsel for the respondenton Rule 19(3) of the Rules is also thoroughly misplaced in as much asRule 19(3) contemplates a situation, when the disciplinary proceedingsagainst a bank officer, have already been initiated, and are pending whenthe officer ceases to be in the Bank’s service, and in that case the AB

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AManaging Director in his discretion may continue and conclude thedisciplinary proceedings against the officer as if the officer continues tobe in service. However, in the instant case, there was no question ofManaging Director exercising such discretion under Rule 19(3) as thedisciplinary proceedings initiated against the respondent had alreadyculminated into his dismissal as per the order dated 11.08.1999 passedBby the Appointing Authority. Though the said order of dismissal was setaside by the Single Bench, the order of Single Bench had remainedstayed pending the LPA filed by the Bank; and though the LPA wasdismissed by the Division Bench, the said order in LPA was set aside bythis Court, observing that the person who hears the matter has to decideit.

C13. It was only pursuant to the direction given by this Court videthe order dated 25.11.2013, the Appointing Authority was expected tohear the respondent and pass appropriate order. This Court had kept allthe contentions of all the parties open. Hence the Appointing Authorityafter issuing show-cause notice and granting opportunity of hearing tothe respondent had passed the order imposing the penalty of “DismissalDfrom Service” w.e.f. 11.08.1999, i.e., from the date when the first orderof dismissal was passed by the Appointing Authority. Since all thecontentions were kept open by this Court while allowing the appeal filedby the Appellant-Bank, as such no affirmative action was expected fromthe Appellant- Bank, as sought to be submitted by the learned counselfor the respondent. The said order of Appointing Authority dismissingEthe respondent from service after granting opportunity of hearing to therespondent was in consonance with the direction given by this Court andcould not be said to be arbitrary illegal or in violation of Rule 19(3) of thesaid Rules. The impugned order of the High Court setting aside the saidorder of dismissal being under misconception of facts and law deservesFto be quashed and set aside.

14. In that view of the matter the impugned order passed by theDivision Bench confirming the order passed by the Single Bench, ishereby accordingly set aside.

15. The appeal stands allowed.

GAnkit Gyan

(Assisted by : Bhavyata Kapoor and Rahul Rathi, LCRAs)

Appeal allowed.

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