No disciplinary action can be taken post-retirement or after extended service period of delinquent employee: Supreme Court

Supreme Court: In an appeal filed by State Bank of India (‘SBI’) and its officers against the judgment and order passed by the Jharkhand High Court, the division bench of Abhay S. Oka and Ujjal Bhuyan, JJ. reiterated that a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding. But no disciplinary proceeding can be initiated after the delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service.

Thus, the Court directed SBI to release all the service dues of the respondent expeditiously and at any rate not later than six weeks from the date of this order.

Background

The respondent, who was appointed as a Clerk Typist in SBI in 1973, was promoted over the years and was scheduled to superannuate in 2003, after completing 30 years of service, as per the SBI Officers’ (Determination of Terms and Conditions of Service) Order, 1979. However, by an order dated 05-08-2003, the respondent’s service was extended until 01-10-2010. On 18-08- 2009, the SBI issued a notice to the respondent, asking for an explanation regarding allegations of sanctioning loans to his relatives in violation of banking norms and misplacing loan-related documents. The respondent was placed under suspension on 21-08-2009. In response, the respondent submitted a reply on 27-10-2009, but the disciplinary authority rejected his explanation. Subsequently, in 2011, SBI initiated formal disciplinary proceedings against the respondent under Rule 68(1) of the SBI Officers’ Service Rules, 1992. A show-cause notice was issued, along with a statement of charges and supporting documents. The respondent was asked to submit his written defense, and IN 2011, he filed a defense brief, denying all 20 allegations made against him

The disciplinary authority passed an order imposing the penalty of dismissal from service on the respondent. The respondent appealed the penalty, but his appeal was dismissed. He then filed a review petition, which was also rejected by the reviewing authority.

Subsequently, the respondent filed a writ petition, wherein a Single Bench of the High Court ruled that the respondent’s service had been extended until 01-10-2010, after his superannuation in 2003, but there was no further extension after that date. The departmental proceedings against the respondent, initiated on 08-03-2011 (after his superannuation), were thus deemed to be beyond the SBI’s jurisdiction. Consequently, the penalty order, the appellate order and the reviewing authority’s order were quashed, and SBI was directed to extend the respondent’s consequential service benefits. SBI appealed the Single Bench’s decision before the Division Bench of the High Court, wherein, the Division Bench upheld the Single Bench’s decision, agreeing that departmental proceedings could not continue after the respondent’s superannuation. Thus, SBI filed a special leave petition, and upon granting leave, the present appeal was registered.

Analysis and Decision:

The Court took note of Section 43(1) of the State Bank of India Act, 1955, and Order 19 of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order, 1979 and observed that an officer of SBI was required to retire from service upon the fulfillment of any of the three specified conditions. However, the competent authority had the discretion to extend the officer’s service if such an extension was deemed necessary in the interest of SBI, though the extended period would not be counted for pension purposes. Under Clause (2), no officer who had ceased to be in the service of SBI under the contingencies outlined in Clause (1) was deemed to have retired for the purpose of the Pension and Guarantee Fund Rules or the Pension Fund Rules, unless such cessation of service had been sanctioned.

The Court concluded that the sanctioning of cessation of service was only for the purposes outlined in the relevant rules. Clause (3) clarified that if disciplinary proceedings had been initiated against an officer under the applicable service rules before the officer ceased to be in service with SBI, such proceedings could be continued and concluded by the authority that had initiated them, even after the officer’s service had ended. However, the officer was deemed to be in service only for the purpose of continuing and concluding the disciplinary proceedings, and not for any other purpose.

After a comparative analysis of Order 19(1) of the Service Order with Rule 19(1) of the State Bank of India Officers’ Service Rules, 1992, the Court noted that the only change introduced by the latter was in one of the conditions of superannuation, specifically the age. The age had been raised from 58 years to 60 years. The rest of the provisions remained unaltered, including the contingencies of superannuation. Whether it was 58 or 60 years, it was only one of the contingencies of superannuation, not the sole condition. Before attaining the age of 58 or 60 years, as the case might have been, an officer would superannuate from service if they had completed 30 years of service or 30 years of pensionable service. However, the second proviso had made a clarification that an officer who had attained the age of 60 years would not have been granted any further extension in service. Thus, an officer could have superannuated before reaching the age of 60 if either one of the other two contingencies had been fulfilled. Such an officer might have also been granted an extension of service for up to 20 years thereafter, but the extension could not have extended beyond the age of 60 years.

The Court noted that charge memo was issued to the respondent on 18-03-2011 after his extension of service was over on 01-10-2010.

The Court noted that the respondent had been paid subsistence allowance from the date of his suspension until his dismissal from service, beyond 1-10-2010. Moreover, the respondent had stated that he was due to superannuate on 30-10-2012. He had not argued, either before the authorities or the High Court, that he had ceased to be in the service of SBI from 1-10-2010, and therefore, the disciplinary proceedings initiated in 2011, were void ab initio. As such, the Single Judge was not justified in accepting the respondent’s challenge to the penalty order on an entirely different ground.

The Court remarked that “where the disciplinary proceeding itself is without jurisdiction, upholding the same on the specious plea that it was not challenged on the ground of lack of jurisdiction would be tantamount to giving imprimatur to a patently illegal proceeding”.

The Court stated that the relationship of master and servant between SBI and the respondent had been severed on and from 01-10-2010. The fact that the respondent had received subsistence allowance thereafter or had declared that he would superannuate on a later date, i.e., on 30-10-2012, upon attaining the age of 60 years, did not make any difference to the legal and factual scenario. Therefore, it was evident that the respondent was no longer in the service of SBI after 01-10-2010.

The Court reiterated that attaining 60 years of service (earlier 58 years) is not the sole criterion of superannuation of an officer serving in SBI. If any of the three contingencies are fulfilled, an officer would be superannuated.

The Court emphasised that disciplinary proceeding against the respondent was not initiated on 18-08-2009 when the first notice to show cause was issued but was initiated only on 18-03-2011 when the disciplinary authority issued the charge memo to the respondent.

The Court reiterated that a subsisting disciplinary proceeding i.e. one initiated before superannuation of the delinquent officer may be continued post superannuation by creating a legal fiction of continuance of service of the delinquent officer for the purpose of conclusion of the disciplinary proceeding (as per Rule 19(3) of Service Rules). But no disciplinary proceeding can be initiated after the delinquent employee or officer retires from service on attaining the age of superannuation or after the extended period of service.

Thus, the Court, while dismissing the appeal, directed SBI to release all the service dues of the respondent expeditiously and at any rate not later than six weeks from the date of this order.