In the High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP325of 2015 Chitta Ranjan Ghosh -vs.UCO Bank & ORS.Before : The Hon’ble Justice Arijit Banerjee For the petitioner : Mr.Sutanu Chakraborti, Adv.For the respondents : Mr.Soumya Majumder, Adv.Ms.Rajarshi Dutta, Adv.Mr.Sourjya Roy, Adv.Heard on 16.12.2015 : CAV On : 10.05.2016 Judgment On : 19.05.2016 15.09.2015, 15.10.2015, 10.12.2015, Arijit Banerjee, J.:(1) In this writ application the petitioner prays for a writ of mandamus directing the respondents to process his application for commutation of pension and release the same without any delay and also to convert his provisional pension to a regular pension.
Case of the petitioner:(2) The petitioner joined the respondent bank in the year 1971.
From time to time he was promoted and in the year 2003 he was promoted to the post of General Manager in the bank’s top executive grade.
(3) During the period 21 June, 2001 till 8 April, 2003, the petitioner was posted as General Manager, Regional Office, Calcutta.
A letter dated 29 September, 2004 was served on the petitioner wherein the respondent bank alleged certain irregularities in the advance portfolio of the bank’s Beck Bagan Branch during the year 2001-02.
The petitioner was called upon to offer an explanation regarding such alleged irregularities.
(4) The petitioner, by his letter dated 27 October, 2004, replied to the said letter of the bank and explained as to why he could not be held responsible for the alleged irregularities.
(5) After receipt of the said reply from the petitioner there was complete silence on the part of the respondent bank.
The petitioner presumed that the bank was satisfied with his reply and had closed the chapter.
The petitioner was due to retire on 31 December, 2009.
(6) The bank issued a letter dated 20 October, 2009 calling upon the petitioner to submit his terminal benefits claim papers at the earliest so that the process of payment of terminal benefits could be expedited.
The petitioner duly filled in all such papers and the same were forwarded to the Assistant General Manager, Personnel Services Department by the Chief Officer (Recovery) under cover of a letter dated 24 November, 2009.
(7) Seven days’ prior to the petitioner’s retirement, a charges-sheet dated 24 December, 2009 was issued by the bank to the petitioner.
The articles of charges and statement of allegations were the same as contained in the letter dated 29 September, 2004 that had been issued by the bank five years before.
(8) By another letter dated 24/26 December, 2009 the bank informed the petitioner that disciplinary proceedings have been initiated against the petitioner and since the same cannot be completed before the date of retirement of the petitioner i.e.31 December, 2009, the competent authority had decided to invoke Regulation 20(3)(iii) of the UCO Bank (Officers’) Service Regulations, 1979 as amended, which reads as follows:“20(3)(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 the payments of retirement benefits till the proceedings are completed and final order is passed thereon except his own contributions to CPF.” It was stated in the said letter that the petitioner would cease to be in the service of the bank with effect from 1 January, 2010 but the disciplinary proceedings will continue against him as if he was still in service until completion of the disciplinary proceedings and passing of the final order.
(9) The General Manager, Personnel Services, UCO Bank wrote a letter dated 1 January, 2010 to the Assistant Labour Commissioner (Central) with a copy to the petitioner informing him that the petitioner is not entitled to payment of retirement benefits till the disciplinary proceedings are completed and final order is passed except his own contribution to Provident Fund and provisional pension.
The matter of payment of gratuity would be decided on the basis of outcome of the disciplinary proceedings.
(10) By his letter dated 28 January, 2010 the petitioner replied to the charge-sheet denying all allegations and stated that the charge-sheet was almost a replica of the bank’s letter dated 29 September, 2004 wherein identical charges had been made which were duly refuted by the petitioner by his letter dated 27 October, 2004.
(11) By its letter dated 4 February, 2010 the bank sanctioned provisional pension for the petitioner and he is receiving such pension regularly.
The quantum of the provisional pension is the same as full pension.
It was mentioned in the said letter that any employee who is being paid provisional pension shall not be paid gratuity till the conclusion of the proceedings against him and the payment of gratuity thereafter will be subject to the decision of the proceeding/competent authority.
(12) By his letter dated 8 March, 2013, the petitioner submitted his comments on the enquiry report that had been forwarded to him.
(13) The petitioner received a letter dated 21 January, 2014 along with a copy of an order dated 13 January, 2014 passed by the Disciplinary Authority being the Chairman and Managing Director of the respondent bank.
By the said order the Disciplinary Authority held that the allegations No.1 and 4 had not been proved, allegations No.2 and 5 had been partially proved and allegation No.3 had been proved.
At the end of the order it was recorded that charge Nos.1 and 2 had been proved and the basic pay of the petitioner was reduced to initial stage in the time scale of pay with cumulative effect.
(14) By his letter dated 27 January, 2014 the petitioner requested the respondent bank to release his gratuity and convert the provisional pension to regular pension since the disciplinary proceedings had been completed.
(15) By its letter dated 18 February, 2014 the bank informed the petitioner that his dues on account of gratuity had been settled.
The petitioner has since received the gratuity amount.
(16) The petitioner made an application for release of commutation of pension on 19 February, 2014.
In spite of receipt of the said application, there was no response from the end of the bank.
(17) The respondent bank lodged a FIR against the petitioner and others which resulted in registration of a criminal case being No.SPL1008 which is pending before the Learned Addl.
Dist.
Judge, Special Court, Alipore.
The petitioner has been granted bail, charges have been framed but the evidence of the witnesses is yet to start.
(18) By his Advocate’s letter dated 24 December, 2014 the petitioner requested the bank to process the petitioner’s application for commutation of pension at an early date and credit the commutation amount to the petitioner’s account.
(19) By its letter dated 30 December, 2014 the bank stated that since CBI GR Case No.SPL1008 arising out of CBI, SPE, ACB, Calcutta Case No.52/05 dated 17 October, 2005 is still pending before the Ld.
FiRs.Special Judge, Alipore, Calcutta against the petitioner, he is not entitled to payment of regular pension and commutation of pension.
The bank relied on Regulation 46 of the UCO Bank (Employees’) Pension Regulations, 1995 which is extracted later in this judgment.
(20) It is contended on behalf of the petitioner that the disciplinary proceedings having come to an end, the petitioner is entitled to receive regular pension and is also entitled to commutation of pension.
He contends that the respondent bank has wrongfully failed, neglected and refused to allow the petitioner’s application for commutation of pension.
(21) The petitioner contends that he has advanced in age and suffering from various ailments and his wife is also not of sound health.
Commutation of pension is one of the main sources of income of a retired employee.
No recovery can be made from commutation of pension and the same cannot be attached, hence, there is no valid ground for not allowing the petitioner’s application for commutation of pension particularly after the gratuity amount has been released in favour of the petitioner.
(22) According to the petitioner one Samar Kumar Mitra who was a Scale-III employee of the respondent bank had been paid all retirement benefits including the commutation of pension although a judicial proceeding was pending against him.
(23) The petitioner’s Ld.
Counsel relied on a decision of this court in the case of Anadi Prasad Mahato-vs.-State of West Bengal, 2014 (2) CHN (Cal) 103.
In that case, a Ld.
Single Judge of this court held that although a criminal proceeding was pending against the petitioner, the same had no nexus with the service of the petitioner.
No allegation of pecuniary loss of the respondents arising out of the petitioner’s service was involved in any proceeding.
No disciplinary proceeding was initiated against the petitioner during his service tenure.
In view of the said facts the Ld.
Judge held that the terminal benefits had been withheld by the respondent authority on extraneous consideration.
Accordingly, the respondent authority was directed to release the terminal benefits to the petitioner along with 9% interest.
The petitioner’s Ld.
Counsel relied on another judgment dated 9 July, 2015 delivered by this Court in WP No.9890(W) of 2015 (Prafulla Chandra Mahato-vs.-The State of West Bengal & Ors.).In that case, a Ld.
Single Judge of this court found that the records do not show that any departmental proceedings have been initiated against the petitioner with regard to the pending criminal proceedings or on any account related to his service and the criminal proceeding pending did not have any relation to the duties discharged by the petitioner as a teacher.
The Ld.
Judge held that the retirement benefits of a superannuated employee cannot be withheld indefinitely and no ground had been established by the State for further withholding the retirement benefits of the petitioner.
(24) On the basis of the above submissions, Ld.
Counsel invited this court to pass an order in terms of the prayers in the writ petition.
Case of the respondent-bank:(25) Appearing on behalf of the respondent bank, Mr.Majumder, Ld.
Counsel submitted that the petitioner is not entitled to commute his pension in view of the pendency of judicial proceedings against him being Case No.SPL1008 in RC No.52/05 instituted by the Central Bureau of Investigation.
Ld.
Counsel drew this court’s attention to Regulations 46 to 48 of the UCO Bank (Employees’) Pension Regulations, 1995 which are as follows:“46.
Provisional Pension.-(1) An employee who has retired on attaining the age of superannuation of otherwise and against whom any departmental or judicial proceedings are instituted or departmental proceedings are continued, a provisional pension, equal to the maximum pension which would have been admissible to him, would be allowed subject to adjustment against final retirement benefit sanctioned to him, upon conclusion of the proceedings but no recovery shall be made where the pension finally sanctioned is less than the provisional pension of the pension is reduced or withheld etc.either permanently or for a specified period.
(2) In such cases the gratuity shall not be paid to such an employee until the conclusion of the proceedings against him.
The gratuity shall be paid to him on conclusion of the proceedings subject to the decision of the proceedings.
Any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.”
47. Commutation of pension during departmental of judicial proceedings.
– An employee against whom departmental or judicial proceedings are instituted before the date of his retirement or a pension against whom such proceedings are instituted after the date of his retirement shall not be eligible to commute a fraction of his provisional pension, or pension, as the case may be, authorised under these regulations during the pendency of such proceedings.”
48. 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 the Board shall be consulted before any final orders are passed; Provided further that departmental proceedings, if instituted while the employee was in service, shall after the retirement of the employee, be deemed to be 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 employees had continued in service.
(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 institution: Provided that the disciplinary proceedings so instituted 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; Provided 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.” (26) Ld.
Counsel submitted that the aforesaid pension regulations constitute special provisions governing release of pecuniary benefits to the retired employees of the bank.
The said provisions read in conjunction and juxtaposition disentitle the petitioner to commute his pension or receive regular pension.
Institution of judicial proceedings before the date of retirement or even after the date of retirement disables an employee to commute his pension.
(27) According to Ld.
Counsel, Regulation 48 lays down the object of such enabling provision to pay provisional pension.
Such object is recovery of bank’s pecuniary loss from pension at the rate not exceeding 1/3 of the pension admissible on the date of retirement of the employee.
If a retired employee is allowed to commute pension, his monthly pension amount would be reduced by one third.
In such a case Regulation 48 provides for a cushioning so that the employee is not put to severe hardship by way of both return of the commuted pension and recovery of loss amount, in case he is found guilty in a judicial proceeding later on.
Regulations 46 to 48 of the Pension Regulations are reasonable and actually enure to the benefit of the retired employee.
(28) Ld.
Counsel submitted that the petitioner has accepted the applicability of the Pension Regulations.
Hence, he is bound by the consequences of each and every provision contained in the Regulations, including the right of the bank to deny commutation of pension and to release provisional pension.
In this connection, Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of Karam Pal-vs.-Union of India, AIR1985SC774 In that case, the Hon’ble Supreme Court while dealing with the Central Secretariat Service Rules, 1962 observed that in the absence of challenge to the Rules and Regulations, resultant situations flowing from compliance of the same are not open to attack.
(29) Mr.Majumder then submitted that the right to recover pecuniary loss from the pension of a retired employee is in addition to the bank’s right to recover loss from the gratuity amount.
Release of the gratuity amount does not in any manner affect the employer’s right to recover the loss from pension since the loss may be determined in a judicial proceeding which concludes long after the superannuation of the employee.
(30) As regards allowing commutation of pension to Sr.Samar Kumar Mitra, Ld.
Counsel submitted that the initial submission of the bank that Mr.Mitra’s retirement dues had been released without any reservation because there was no judicial proceeding pending against him, was an incorrect submission made inadvertently.
Subsequent to the petitioner filing the supplementary affidavit affirmed on 29 September, 2015, records were scrutinized and it was found that the initial instruction was incorrect.
In fact, Sr.Mitra had been erroneously allowed to commute pension and was being paid regular pension in spite of pendency of judicial proceeding against him.
Ld.
Counsel drew this court’s attention to the supplementary affidavit affirmed on behalf of the bank on 18 November, 2015 wherein it has been stated that the case of Sr.Mitra was a bona fide mistake and 31 cases have been enumerated to show that in all such cases the retired employees were not allowed commutation of pension and were paid only provisional pension applying the provision of Regulation 46 since judicial proceedings were pending against them.
(31) Mr.Majumder submitted that the petitioner cannot take advantage of and claim benefit from a bona fide mistake as in the case of Sr.Mitra.
Article 14 of the Constitution is not a negative right.
In order to succeed, the petitioner must show that he has a legally enforceable right for issuance of a writ of mandamus.
Such a relief cannot be granted so long as the Pension Regulations exist.
In this connection Ld.
Counsel relied on a decision of the Hon’ble Supreme Court in the case of State of Orissa-vs.-Ram Chandra Dev, AIR1964SC685 wherein the Hon’ble Supreme Court observed that although the jurisdiction of the High Court under Article 226 is very wide, before a writ or an appropriate order can be issued in favour of a party, it must be established that the party has a right and the said right is illegally invaded or threatened.
The existence of a right is the foundation of a petition under Article 226 of the Constitution.
(32) On the basis of the aforesaid submission Mr.Majumder prayed for dismissal of the writ petition.
Petitioner’s reply:(33) In reply, Ld.
Counsel for the petitioner submitted that the Pension Regulations are not applicable to the petitioner.
Hence, the respondent bank cannot refuse commutation of pension by invoking Regulations 46 to 48.
Recovery of financial loss, if any, suffered by the bank by reason of any conduct of the employee concerned, can only be by adjusting the gratuity amount.
In the present case, the entire gratuity amount has been released without reservation after conclusion of the disciplinary proceedings.
The petitioner’s claim for interest on late payment of gratuity is pending before the Dy.
Chief Labour Commissioner (Central).Calcutta.
He submitted that no financial loss has been caused to the bank and, hence, the question of recovery does not arise.
Ld.
Counsel drew this court’s attention to paragraph 15 of the bank’s affidavit-in-opposition wherein it has been stated, inter alia, that ‘question of recovery or attachment being made from commutation of pension is not important in the facts of the present case.’ (34) Ld.
Counsel further submitted that in the internal communication sent by the Zonal Manager of the bank to the Head Office, Personnel Department (page 9 of the petitioner’s supplementary affidavit dated 29 May, 2015).it was stated that on that date there was no pending or contemplated vigilance/non-vigilance/court cases against Sr.Samar Kumar Mitra.
However, it appears that the final judgment in the case against and amongst otheRs.Samar Kumar Mitra being Special Case No.10 of 1993 in connection with RC Case No.29 of 1991 instituted by the CBI, was delivered on 29 September, 2014 wherein Sr.Samar Kumar Mitra was acquitted.
Hence, it is clear that when Sr.Mitra was paid the regular pension and was allowed to commute his pension the CBI case under the Prevention of Corruption Act, 1988 was pending against him.
Hence, there is no reason why the petitioner should not be treated similarly as Sr.Samar Kumar Mitra and the impugned action of the bank is discriminatory interference of this court.
Court’s View: against the petitioner warranting (35) The only question that falls for determination is whether or not the petitioner is entitled to commutation of pension and conversion of his provisional pension to a regular pension.
(36) It is not in dispute that a charge-sheet dated 24 December, 2009 was issued to the petitioner when he was still in service.
The petitioner superannuated with effect from 1 January, 2010.
However, the disciplinary proceedings were continued against him by invocation of Regulation 20(3)(iii) of the UCO Bank (OfficeRs.Service Regulations, 1979 which has been extracted above.
(37) The disciplinary proceedings culminated in an order dated 13 January, 2014 passed by the disciplinary authority whereby the basic pay of the petitioner was reduced to initial stage in the time scale of pay with cumulative effect.
Thus, the disciplinary proceedings came to an end on 13 January, 2014.
During the pendency of the disciplinary proceedings, the petitioner was paid provisional pension in terms of Rule 46(1) of the 1995 Regulations but his gratuity was withheld in terms of Rule 46(2) of the said Regulations.
After conclusion of the departmental proceedings, the gratuity amount has been released in favour of the petitioner.
(38) Rule 47 of the 1995 Regulations provides, inter alia, that a person against whom judicial proceedings are instituted before or after the date of his retirement, shall not be eligible to commute a fraction of his provisional pension, or pension as the case may be, during the pendency of such proceedings.
It is not in dispute that on the complaint of the respondent bank, a criminal case was registered against the petitioner and two others under Sections 120B, 420 and 471 of the IPC read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 for alleged criminal conspiracy cheating, forgery, using forged documents as genuine and criminal misconduct.
It is also an admitted fact that the said case is pending before the Ld.
Addl.
Dist.
Judge, Special Court, Alipore.
Thus, a judicial proceeding was instituted against the petitioner prior to his retirement at a time when he was in service and pendency of such proceedings even as on date is also admitted by the petitioner.
In view of such fact, Rule 47 of the 1995 Regulations clearly disentitles the petitioner to commute the provisional pension or pension.
(39) The petitioner relied on two decisions of this court in the cases of Anadi Prasad Mahato (supra) and Prafulla Chandra Mahato (supra).In Anadi Prasad Mahato’s case, the Ld.
Judge held that although a criminal case was pending against the petitioner, the same had no nexus with the service of the petitioner.
It was not alleged that the respondents had suffered any pecuniary loss for any act of the petitioner during his service and no disciplinary proceeding was initiated against the petitioner.
In that view of the matter, Ld.
Judge held that the terminal benefits of the petitioner could not be withheld.
In Prafulla Chandra Mahato’s case also, the Ld.
Judge came to a finding that no departmental proceedings had been initiated against the petitioner and the criminal proceeding that was pending did not have any relation to the duties discharged by the petitioner.
Accordingly, the court directed release of the retiral benefits in favour of the petitioner.
(40) In the present case, the facts are different from those in the above two cases.
The criminal proceeding pending against the petitioner is directly related to the discharge of duty by the petitioner as an employee of the respondent bank.
The charges against the petitioner include the charge of cheating which implies that the bank alleges to have suffered financial loss by reason of the petitioner’s act and conduct.
Whether such charge will be proved or not can only be said at the end of the criminal trial.
However, it cannot be said that the criminal proceeding pending against the petitioner has no nexus with the service of the petitioner as employee of the respondent bank.
Hence, in my opinion, the decisions in the cases of Anadi Prasad Mahato and Prafulla Chandra Mahato do not help the petitioner.
(41) The petitioner also contended that Rule 46(2) of the 1995 Regulations contemplates that any recoveries to be made from an employee shall be adjusted against the amount of gratuity payable.
He contends that this means that no recovery can be made from the amount of pension payable to the petitioner.
Since, the gratuity amount has been paid by the bank to the petitioner, it implies that no amount is recoverable by the bank from the petitioner.
Accordingly, there can be no legitimate ground for not allowing the petitioner to commute his pension or not converting his provisional pension to regular pension.
(42) I am unable to accept the aforesaid contention of the petitioner.
Rule 48 of the 1995 Regulations clearly entitles the competent authority to withhold a pension or 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 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.
If, in the criminal proceedings pending against the petitioner, it is ultimately found that the bank suffered financial loss by reason of criminal breach of trust or forgery or acts done fraudulently during the service tenure of the petitioner, the bank would be entitled to recover such loss from the pension payable to the petitioner.
This seems to be the rationale behind Rule 47 of the 1995 Regulations which disqualifies a retired employee for commutation of pension.
Hence, this argument of the petitioner also fails.
(43) I am in agreement with the submission of Ld.
Counsel for the bank that the fact that another retired employee namely, Samar Kumar Mitra, had been paid all retiral benefits including commutation of pension although a judicial proceeding was pending against him, cannot create a right in favour of the petitioner.
It is clear from the supplementary affidavit affirmed on behalf of the bank that such payment was made to Samar Kumar Mitra erroneously.
The petitioner cannot insist on repeatation if such an erroneous act.
A benefit erroneously granted to a person by an authority cannot and does not entitle another person similarly situated to insist that similar benefit be extended to him.
The right guaranteed under Art.
14 of the Constitution is a positive right and not a negative right.
Before a petitioner can legitimately pray for issuance of a writ of mandamus he must establish that he has a legally enforceable right i.e.a positive right recognized by law, which the petitioner has failed to do in the present case.
In this connection the Hon’ble Supreme Court decision in the case of Ram Chandra Dev (supra) has already been referred to hereinabove.
(44) The petitioner not having challenged the applicability of the 1995 Regulations, he is bound by the consequences of the same as rightly submitted by Ld.
Counsel for the bank.
In this connection the decision of the Hon’ble Supreme Court in the case of Karam Pal (supra) may be referred to.
(45) In so far as conversion of the petitioner’s pension from provisional pension to regular pension is concerned, in my opinion, the same also cannot be allowed at this stage.
Rule 46 of the 1995 Regulations envisages payment of a provisional pension so long as judicial proceedings are pending against him.
In any event, the petitioner is not suffering any hardship on that account since it has been submitted on behalf of the petitioner that the amount of provisional pension he is receiving is the same as regular pension.
(46) In view of the aforesaid, this writ application fails, and is dismissed.
There will, however, be no order as to costs.
(47) Urgent certified photocopy of this judgment and order, if applied for, be given to the parties upon compliance of necessary formalities.
(Arijit Banerjee, J.)