(Writ Petition No.18992/2003 is filed under Article 226 of the Constitution of India, praying to quash the order passed by the Respondent Bank dated 03.10.2001 vide Annexure-L, dated 26.12.2002 vide Annexure-Y and dated 28-03-2003 vide Annexure-A and etc.,
Writ Petition No.40590/2003 is filed under Article 226 of the Constitution of India praying to quash the order by the Respondent/Bank dated 16.07.2003 vide Annexure-C and etc.,
Writ Petition No.30035/2004 is filed under Article 226 of the Constitution of India praying to quash vide Annexure-Y dated 01.07.2004 passed by the Respondent and etc.,
Writ Petition No.10563/2005 is filed under Article 226 of the Constitution of India praying to quash order dated 14.12.04 vide Annexure-V passed by the Bank and etc.,)
This Writ Petition is filed under Article 226 of the Constitution praying to direct the respondent to disburse the pensionary benefits of this petition as per Annexure-B, forthwith and etc.,
These petitions are heard and disposed of together as common issues arise for consideration.
2. In WP 18992/2003 and WP 40590/2003, the facts briefly stated are as follows:
These two petitions are by the same petitioner. The petitioner joined the service of the respondent-bank in the year 1968 and was promoted as Chief Manager and thereafter as Assistant General Manager. On 1st January 2002, he was served with a charge sheet under Regulation Nos.43, 45 and 48of the Syndicate Bank (Employees’) Pension Regulation, 1995 read with Syndicate Bank Officers Employees’ (Discipline and Appeal) regulations, 1976. The allegation was that when he was functioning as a Chief Manager/Assistant General Manager, Camac Street Branch, Calcutta during there period between 4.6.1999 to 3.4.2000 he had sanctioned revised working capital limits of SOD facility to Rs.18.50 lakhs and Bank Guaranty Facility to Rs.10 lakh to M/s Cadet Advertising and Marketing Private Limited for taking over the liability from the Canara Bank without ensuring proper security and without obtaining prior permission from the competent authority.
It was also alleged that he exceeded his discretionary power for giving advances, without ensuring sufficient care to obtain proper and adequate securities and thus exposed the bank to serious risk of financial loss to the extent of Rs.28.48 lakh and interest thereon, as the bank had no security to fall back upon. Therefore, he was served with a show-cause notice. The petitioners gave his reply denying all the allegation. Not being satisfied with the reply given, disciplinary proceedings were initiated. At this stage, it is relevant to point out that the show-cause notice was issued on 13-07-2000. The reply was given on 26.08.2000. On 21.10.2000, the Bank int5roduced a Voluntary retirement. His request for voluntary retirement was accepted by an order dated 20.02.2001 and he was relieved from his duty on 15.3.2001. As per the terms of the Voluntary Retirement Scheme, he was entitled for sixteen months salary as ex-gratia payment which works out to roughly Rs.14.47 lakh. Out of the same, Rs.7,23,840/- was paid on the date of the retirement. The balance amount was to be paid in installments. But in the meanwhile, disciplinary proceedings were initiated and after enquiry, the Enquiry Officer submitted his report holding that the misconduct alleged against the petitioner was substantially proved. The Disciplinary Authority acting on the said report has passed two orders. The first order is Annexure – Y dated 26.12.2002appropriaating Rs.7,57,355/- being the balance 50% of ex-gratia amount towards the financial loss to which the bank is exposed on account of the lapses on the part of the petitioner. The second order is Annexure-CC dated 16.07.2003 by which one-third of the pension payable was permanently withheld. The appeal against these two orders was also rejected by an order dated 28.03.2003. The petitioner has challenged the aforesaid two orders by filing these two writ petitions.
3. In WP 30035/2004, the facts are as follows:
The petitioner had joined the services of the respondent bank in the year 1969. During the year 2000 he was working as Chi3f Manager of the Barabazar branch of the bank at Kolkata. The petitioner had sought for voluntary retirement as on 28-12-1999 under the Pension regulations governing the bank and its employees. The bank had, by an order dated 17-1-2000 accepted the offer and allowed the petitioner to retire.
However, by a letter dated 20-2-2001, the Vigilance Department of the bank called upon the petitioner to offer his explanation regarding certain credit facilities granted to M/s Milestones Software production and Marketing Private Limited and one M/s A T Exports. The petitioner had offered his remarks in response to the same.
Eighteen months thereafter, the petitioner was served with a charge-sheet alleging irregularities committed by the petitioner in respect of eight accounts, including the above two, which according to the bank, were acts of grave misconduct. The petitioner’s reply was not accepted and an enquiry was initiated under Regulations 43,45 ad 48 of the Syndicate Bank (Employees) Pension regulations, 1995 read with regulation 6 of the Syndicate Bank Officer Employees’ (Discipline and Appeal) Regulations, 1976. The same was contested by the petitioner. The enquiry officer submitted a report holding that the charges were proved. This was accepted by the Disciplinary Authority and a penalty of withholding one-third of the monthly pension payable to the petitioner for a period of three years was imposed on him. Though the remedy of an appeal is provided to the petitioner, before the Board of Directors, as the impugned order indicated that the Board had been consulted in the matter of imposition of punishment on the petitioner, the petitioner has preferred this petition without recourse to an appeal.
4. In WP 10563/2005, the facts are as follows:
The petitioner had joined the services of the respondent. M/s. Syndicate Bank, as on 6-8-1973. By the year 1990, he had risen to the rank of a Senior manager. In the year 2000, the bank introduced a Voluntary Retirement Scheme. The petitioner opted for the same and it was accepted by the bank. He was relieved from the services of the bank on 19-5-2001.
However, a charge sheet was issued to the petitioner, dated 13—2002, alleging that the petitioner had, without taking sufficient care to safeguard the interest of the bank, recommended sanction of Credit facilities to one M/s Anand Polytech (India) Private Limited and that he had accommodated the party at the cost of the bank. The bank not being satisfied with the reply of the petitioner initiated an enquiry, proceeding under the Pension regulations. The enquiry officer submitted a report holding that the charges were proved. The disciplinary authority in turn has imposed a penalty of withholding one-third of the monthly pension payable to the petitioner for one year. Since the Board of Directors was said to have been consulted prior to the imposition of penalty, the petitioner has approached this court directly with out availing of the remedy of appeal.
5. In WP 17662/2005 the facts are as follows:
The petitioner was employed as a clerk with the respondent – M/s Syndicate Bank. He opted for pre-mature retirement under a Voluntary Retirement Scheme of the bank in the year 2000. He was relieved from service in the year 2001, and received a part of the ex-gratia amount due to him. But in the year 2003, he was called upon by the bank to refund the amount received. It was stated that the bank had issued a charge sheet against the petitioner and several other employees in respect of certain irregularities which had come to light. The said employees and the petitioner having admitted their guilt, though the petitioner claimed that a confessional statement had been obtained form him at the enquiry under duress, the pensionary benefits of the petitioner were ordered to be with held.
The petitioner having unsuccessfully challenged the order withholding the pensionary benefits due to him, permanently, the petitioner is before this court.
6. Heard Shri M.N.Prasanna, appearing for the petitioners as also Shri Subramanya Bhat appearing for one of the petitioners and Shri Radesh Prabhu and Shri Pradeep Swakar for the respondents.
7. The common points that arise for consideration on the grounds urged in these petitions are:
(i) Whether the respondent – bank, in the respective cases, namely, M/s Syndicate Bank, acting under the relevant Pension regulations could proceed to withhold pension due to the petitioners either wholly or in part, pursuant to an enquiry conducted, after the petitioners had retired from service?
(ii) Whether the respondents were justified in doing so even after having recovered the pecuniary loss said to have occasioned to the bank, from out of the benefits due to the petitioners?
(iii) Whether the acts of omission and commission alleged against the petitioners could be characterized as “”grave misconduct”, and if so – what was the yard stick in proceeding on the basis that there was “grave misconduct” as distinguished from a mere misconduct?
(iv) Whether from the material on record and the manner in which the proceedings are conducted it could be said that the findings of fact could be sustained?
8. The relevant Regulations are reproduced hereunder for ready reference.
“42. Pension subject to future good conduct:
Future good conduct shall be an implied condition of every grant of pension and as continuance under these regulations.
43. Withholding or withdrawal of pension.
The Competent Authority may, by order in writing, withhold or withdraw pension or a part thereof, whether permanently or for a specified period, if the pensioner is convicted of a serious crime or criminal breach of trust or forgery or acting fraudulently or is found guilty of grave misconduct.
Provided that where a part of pension is withheld or withdrawn the amount of such pension shall not be reduced below the minimum pension per mensem payable under these regulations.
44. Conviction by Court:
Where a pensioner is convicted of a serious crime by a Court of Law, action shall be taken in the light of the judgment of the court relating to such conviction.
45. Pensioner guilty of grave misconduct:
In a case not falling under regulation 44 if the Competent Authority considers that the pensioner is prima facie guilty of grave misconduct, it shall, before passing an order, follow the procedure specified in Canara Bank Officers Employees’ (Discipline and Appeals) Regulations, 1976 or in Settlement as the case may be.
46. Provisional Pension:
- An employee who has retired on attaining the age of superannuation or otherwise and against whom any departmental or judicial proceedings are instituted or where 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 benefits 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 or the pension is reduced or withheld etc., either permanently or for a specified period.
- In such cases the gratuity shall not be paid to such an employee until the conclusion of he 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.
- the expression “serious crime” includes a crime involving an offence under the Official Secrets Act, 1923 (19 of 1923);
- the expression “grave misconduct” includes the communication or disclosure of any secret official code of password or any sketch, plan, model, article, note, document or information, such as is mentioned in section 5 of the Official Secrets Act, 1923 (19 of 1923) which was obtained while holding office in the Bank so as to prejudicially affect the interests of the general public or the security of the State.
- The expression “fraudulently” shall have the meaning assigned to it under Section 25 of the Indian Penal Code, 1860 (45 of 1860):
- The expression “criminal breach of trust” shall have the meaning assigned to it under Section 405 of the Indian Penal Code, 1860 (45 of 1860);
- The expression “forgery” shall have the meaning assigned to it under Section 463 of the Indian Penal Code, 1860 (45 of 1860).
- 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 department and judicial proceedings the petitioner 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 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 employee had continued in service.
Provided also that no departmental or judicial proceedings, if not initiated while the employee was in service shall be instituted in respect of a cause of action which arose or in respect of an event which took place more than four years before such institution.
- Where the Competent Authority orders recovery of pecuniary loss from the pension, the recovery shall not ordinarily be made a ta rate exceeding one-third of the pension admissible on the date of retirement of the employee:
From a plain reading of the above, the answer to the first and second points for consideration, would be in the affirmative. This is the settled position in view of the apex court having addressed the scope of the corresponding Central Civil Services Pension Rules, from which the present Regulations appear to have been cloned. The apex court in the case of Union of India v. B. Dev, AIR 1998 SC 2709, has held as follows:
“12. Rule 9 gives to the President the right of (1) withholding or withdrawing a pension or part thereof (2) either permanently or for a specified period and (3) ordering recovery from a pension of the whole or part of any pecuniary loss caused to the Government. This power can be exercise if, in any departmental or judicial proceedings, the pensioner is found guilty of grave misconduct or negligence during the period of his service. The power, therefore, can be exercised in all cases where the pensioner is found guilty of grave misconduct or negligence during the period of his service. One of the powers of the President is to recover from pension, in a case where any pecuniary loss is caused to the Government, that loss, this is an independent power in addition to the power of withdrawing or withholding pension. The conte4ntion of the respondent, therefore, that Rule 9 cannot be invoked even in cases of grave misconduct unless pecuniary loss is caused to the Government is unsustainable.
The difficulty, however, arises in addressing the basis on which the authority n the case on hand, has exercised the power in arriving at the quantum of pension to be withheld, apart from the independent power under which recovery of any pecuniary loss has been quantified and recovered.
Regulation 43 contemplates that the authority may withhold or withdraw pension, permanently or for a specified period, if the pensioner is convicted of a “serious crime” as including a crime ad defined under the Official Secrets Act,1923, thereby leaving the question open as to what would constitute a “serious crime”,. The Regulation further lays down that withholding of pension is also enabled on the part of the authority, if there is crimi9nal breach of trust, forgery, or fraud on the part of the pensioner. The reference to the definitions assigned under the Indian Penal Code, 1860, to the expressions “fraudulently”, “Criminal breach of trust” and “forgery”, to be applied to the said expressions employed in Regulation 43, hardly helps in determining what would be a “serious crime”, as contemplated under Regulation 43.
Therefore, the best course of action would be for the authority to apply the broad test applicable to offences under the criminal law in proceeding on the footing that a serious crime, or more properly a serious offence, is involved. In so far as the criminal law of the land with reference to the Code of Criminal Procedure, 1973, is concerned the accepted position is as under:
“12.2 Bailable and Non-bailable offences – The code has classified all offences into “bailable” and “non-bailable” offences. According to s.2(a), “bailable offences”, means an offence which is shown as bailable in the First Schedule, or which is made bailable by any other law of the time being in force; and “non-bailable offence” means any other offence. It will be seen that the Code has not given any test or criterion to determine whether any particular offence is bailable or non-bailable. It all depends upon whether it has been shown as bailable or non-bailable. It all depends upon whether it has been shown as bailable or non-bailable in the First Schedule of the Code. That schedule refers to all the offences under the Indian Penal Code and puts them into bailable and non-bailable categories. The analysis of the relevant provisions of the schedule would show that the basis of this categorization rests on diverse consideration. However, it can be generally stated at all serious offence, i.e, offences punishable with imprisonment for three years or more, have been considered as non-bailable offences. But there are exceptions on either side. In the case of offences under laws other than I.P.C., as it is not expedient to list all the offences under the law s for the time being in force and to change the schedule every time a new penal law is passed, the above-said broad rule has been adopted in the schedule and has been made applicable in case of such offences under the other laws. It may however be noted that this general rule can be suitably modified according to the specific needs by making a special provision in law and declaring a particular offence as bailable or non-bailable.”
(See: Kelkar’s Criminal Procedure, Third Edition, page 202)
If the above test is applied it will be seen that acts which are “fraudulent” are punishable under Sections 421 to 424 of the Indian Penal Code and all of which are non-cognizable and bailable. It would hence not be justified in holding that the whole of the pensionary benefit could be withheld for those offences. Even if a part is to be withheld, the gravity and degree of involvement of the pensioner would be a material consideration.
Similarly, the several kinds of offences of “forgery” punishable under Sections 465 to 474 are either non-cognizable and bailable or cognizable and non-bailable. Conversely, Regulation 42 read with Regulation 44 would enable the Competent Authority, in a given case, where the pensioner is convicted of a serious offence to withhold or withdraw a pension in terms of Regulation 43. The quantum of pension that could possibly ordered to be withheld is hence dependent on the circumstances of each case.
Regulation 43 also provides that the pension could be withheld or withdrawn if the pensioner is found guilty of “grave misconduct”. As to what would amount to “grave misconduct” is not forthcoming. The Explanation appended to Regulation 46, including that the expression would include, a communication or disclosure of any secret official code or password or any sketch, note, document or information, such as is mentioned in Section 5 of the Official Secrets Act, 1923, is in the nature of an inclusive definition and does not throw any light. It therefore, becomes relevant, at least for the petitioners to accept that the misconduct alleged against them was a “grave misconduct”. For it is only if the misconduct is one which can be characterized as a grave misconduct, that an enquiry could be conducted under the procedure prescribed under the Discipline and Appeal Regulations, as provided under Regulation 45.
9. It may be useful to take note of the meaning attributed to the phrase in the following decisions:
In Poad v. Scarborough Guardian (1914) 3 K.B. 959, the facts were as follows:
Mr.Poad, the plaintiff, had been in the service of the defendants for 20 years. He was employed as the defendants’ relieving officer and collector. For several years he had been in the habit of using money received by him as collector, for his own purposes, but he did pay into the defendants’ account, on a quarterly basis, the money so used by him. Upon being told that the practice must cease he nevertheless continued, it, the defendant union having been compelled to inquire into the irregularities and on a consideration of the explanations offered by Poad, he was placed under suspension. The plaintiff thereafter tendered his resignation on medical grounds, which was accepted. The plaintiff thereafter claimed payment of superannuation allowance under the Poor Law Officers’ Superannuation Act, 1895. The same having been denied, he was before the Court. On an interpretation of Section 7 of the said Act, which in substance laid down that any officer or servant who would otherwise become so entitled to the allowance, shall forfeit his right, if he resigns or ceases to hold office in consequence of any offence of a fraudulent character, or of a grave misconduct, it was held against the plaintiff and he was in appeal.
While dismissing the appeal, the following opinion was expressed as to the meaning to be assigned to “grave misconduct”:
“……If a person has been guilty of misconduct alone to which one would not apply the adjective “grave”, that is not sufficient to disentitle him to his superannuation. The misconduct must be of a higher standard than that which would be applied, for example, in the test of whether an employer was justified in dismissing his servant for misconduct. I think we must come to the conclusion that when parliament introduced the word “grave” before the work “misconduct” it meant that the misconduct must be not only of a character which could properly be described as misconduct, but also that misconduct must be such as would amount to misconduct of a grave – that is serious and even very serious character.
In the case of Bhagwat Prashad v. Inspector General of Police, Punjab, AIR 1970 P and H 8, the matter involved the dismissal of a police officer for drunken behaviour. The rule under which he was dismissed,. Contemplated that dismissal from service shall be awarded only for the “gravest acts of misconduct”. In interpreting the provision the court held thus:
“11. The word “grave” is used in many senses and implies seriousness, importance, weight etc. There, is however, a distinction between misconduct and grave misconduct. The adjective ‘grave’ in this context makes the character of the conduct, serious or very serious. The words “gravest acts of misconduct” are incapable of definition, One has to apply one’s mind to the words and give a meaning to each of them in the light of the actual deed, situation and circumstances. “Misconduct” in order to earn the epithet of gravity has to be grass or flagrant. Consequently the degree of misconduct to justify dismissal has to be higher or more serious.
12. The use of the superlative ‘gravest’ and the adverb ‘only’ is not entirely without significances. To look at the matter exclusively from a grammatical angle, ‘gravest’ is the highest degree of misdeed as compared to what is just ‘grave’. This is because of the use of the superlative degree as against the positive or comparative degree. The superlative degree may be used wither to denote the highest or maximum degree in a given aggregate, or simply to indicate a supreme or very high degree without definite comparison. In the former sense, particularly when construing a statute, no misconduct can be styled to be of such an extreme degree as to be without a parallel or which cannot be worsted or bettered. “Misconduct” even if of the very worst cannot reach such a peak or depth which cannot be surpassed. Even in the case of superlative degree of misconduct there are grades and degrees. The argument does not admit of serious consideration, that the intent of the framers of the rule was, that absolutely the worst misconduct could alone merit dismissal, and so long as, comparatively speaking, there could be a possibility of a still worse conduct, it could not be termed the gravest act of misconduct,. Human conduct or behaviour cannot be graded and there can be no precise scale of graduation in order to arithmetically compare the gravity of the one from the other. In the circumstances, the use of the superlative degree, appear to be intended to indicate a supereminent, or a very high degree of misconduct, and not, that the degree should be so high or so low as cannot be outclassed or excelled.”
In the case of Malappa K.v. State of Karnataka, 1985 (2) Kar.L.J.199, the above decision of the Punjab and Hariyana High Court has been followed, in interpreting the essential conditions required to initiate or continue proceedings under Rule 214 of the Karnataka civil Services Rules.
In the case of State of Punjab v. Ram Singh, IR 1992 SC 2188, While addressing the question whether a constable gunman could have been dismissed from service for a single act of drunken behaviour as amounting to a “gravest act of misconduct” as contemplated under Rule 16.2(1) of the Punjab Police Manual 1934, Volume-II, the apex court has expressed thus: “4. Misconduct has been defined in Black’s Law Dictionary, Sixth Edition at page 999 thus:-
“A transgression of same established and definite rule of action a forbidden act, a dereliction from duty, unlawful behaviour willful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence of carelessness.”
Misconduct in office have been defined as:
“Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. The term embraces, acts, which the officer holder had no right to perform acts performed improperly, and failure to act in the face of an affirmative duty to act.”
P. Ramanatha Aiyar’s the Law Lexicon, Reprint Edition 1987 at p.821 ‘misconduct’ defines thus:-
“The term misconduct implies a wrongful intention, and not a mere error of judgment. Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion if left, except what necessity may demand and carelessness, negligence and unskillfullness are transgression of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law: carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act, and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public officer, by which the rights of a party have been affected.”
5. Thus it could be seen that the word ‘misconduct’ though not capable of precise definition, us reflection receive its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude it must be improper or wrong behaviour:
Unlawful behaviour, willful in character: for bidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty, the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject matter and the context wherein the term occurs, regard being had to the scope of the stature and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
6. Rule 16.2(1) consists of two parts. The first part is referable to gravest acts of misconduct which entails awarding an order of dismissal. Undoubtedly there is distinction between gravest misconduct and grave misconduct. Before awarding an order of dismissal it shall be mandatory that dismissal order should be made only when there are gravest acts of misconduct, that too when it impinges the pensionary rights of the delinquent after putting long length of service. As stated the first part relates to gravest acts of misconduct. Under General Clauses Act singular includes plural, act includes acts. The contention that there must be plurality of acts of misconduct to award dismissal is fastidious. The word “acts” would include singular “act” as well. It is not the repetition of the acts complained of but its quality. Insidious effect and gravity of situation that ensues from the offending ‘act’. The colour of the gravest act must be gathered from the surrounding or attending circumstances. Take for instance the delinquent that put in 29 years of continuous length of service and had unblemished record; in 30th year he commits defalcation of public money or fabricates false records to conceal misappropriation. He only committed once. Does it mean that he should non be inflicted with the punishment of dismissal but be allowed to continue in service for that year to enable him to get his full pension. The answer is obviously no. therefore, a single act of corruption is sufficient to award an order of dismissal under the rule as gravest act of misconduct.
7. The second part of the rule connotes the cumulative effect of continued misconduct proving incorrigibility and complete unfitness of police service and that the length of service of the offender and his claim for pension should be taken into account in an appropriate case. The contention that both parts must be read together appears to us to be illogical. Second part is referable to a misconduct of minor in character which does not by itself warrant an order of dismissal but due to continued acts of misconduct would have insidious cumulative effect on service morale may be a ground to take lenient view of giving an opportunity to reform. Despite giving such opportunities to reform. Despite giving such opportunities if the delinquent officer proved to be incorrigible and found complete unfit to remain in service than to maintain discipline in the service, instead of dismissing the delinquent officer, a lesser punishment of compulsory retirement or demotion to a lower grade or rank or removal from service without affecting his future chances of re-employment, if any, my meet the ends of justice. Take for instance the delinquent officer is habitually absent from duty when required. Despite giving an opportunity to reform himself he continues to remain absent from duty off and on. He proved himself to be incorrigible and thereby unfit to continue in service. Therefore, taking into c account his long length of service and his claim for pension he may be compulsorily retired from service so as to enable him to earn proportionate pension,. The second part of the rule operates in that area. It may also be made clear that the very order of dismissal from service for gravest misconduct may entail forfeiture of all pensionary benefits. Therefore, the word ‘or’ cannot be read as “and”. It must be disjunctive and independent. The common link that connects both clauses is “the gravest act/acts of misconduct.”
8. The next question is whether the single act of heavy drinking of alcohol by the respondent while on duty is a gravest misconduct. We have absolutely no doubt that the respondent, being a gunman having service revolver in his possession. It is obvious that he was on duty; while on duty he drunk alcohol heavily and became uncontrollable. Taking to drink by itself may not be a misconduct. Out of office hours one may take to drink and remain in the house. But being on duty, the disciplined service like police service, the personnel shall maintain discipline and shall not resort to drink or be in a drunken state while on duty. The fact is that the respondent after having had heavy drink, was seen roaming or wandering in the market with service revolver. When he was sent to the doctor for medical examination he abused the medical officer on duty which shows his depravity or delinquency due to his drinking habit. Thus it would constitute gravest misconduct warranting dismissal from service. The authorities, therefore, were justified in imposing the penalty of dismissal. The Courts below failed to properly appreciate the legal incidence and the effect of the rules.”In an unreported judgment of the Delhi High Court in WP 2292/2010 decided on 26-7-2010, while drawing inspiration from the above judgment of the apex court in Ram Singh’s case, a division bench of that court has expounded thus on the meaning to be assigned to “grave misconduct”:
“32. Having understood what misconduct is, it becomes easy to understand what a grave misconduct would be. It has to be the aggravated form of misconduct.
33. Acts of moral turpitude, acts of dishonesty, bribery and corruption would obviously be an aggravated from of misconduct because of not only the morally depraving nature of the act but even the reason that they would be attracting the penal laws. There would be no problem in understanding the gravity for such kind of offences. But that would not mean that only such kind of indictments would be a grave misconduct. A ready example to which ever4ybody would agree which as a case of grave misconduct, but within the realm of failure to maintain devotion to duty, would be where a fireman sleeps in the fire office and does not respond to an emergency call of fire in a building which ultimately results in the death of 10 persons. There is no dishonesty. There is no acceptance of bribe. There is no corruption. Here is no moral turpitude. But none would say that he act of failure to maintain devotion to duty is not of a grave kind.
34. It would be difficult to put in a strait jacket formula as to what kinds of acts sans moral turpitude. Dishonesty, bribery and corruption would constitute grave misconduct, but a ready touchstone would be where the ‘integrity’ to the devotion to duty’ is missing and the ‘lack of devotion’ is gross and culpable it would be a case of grave misconduct. The issue needs a little clarification here as to what would be meant by the expression ‘integrity to the devotion to duty’. Every concept has a core value and a fringe value. Similarly, every duty has a core and a fringe. Whatever is at the core of a duty would be the integrity of the duty but may be integral to the duty. It is in reference to this metaphysical concept that mottos are chose by organizations. For example in the fire department the appropriate motto would be: ‘Be always alert’. It would be so for the reason the integrity of the duty of a fire officer i.e., the core value of his work would be to be ‘always alert’. Similarly, for a doctor the core value of his work would be ‘duty to the extra vigilant’. This, where a doctor conducts four operations one after the other and in between does not wash his hands and change the gloves resulting in the three subsequent patients contacting the disease of the first, notwithstanding there being no moral turpitude involved or corruption or bribery, the doctor would be guilty of a grave misconduct as his act has breached the core value of his duty. The example fo the fireman given by us is self explanatory with reference to the core value of the duty of a fireman to be ‘always alert’. “Grave Misconduct”, as employed in the regulations in question, is clearly one which is of a higher degree than one which would be applied in the test of an employer seeking to impose the extreme punishment of dismissal from service for misconduct. The misconduct must not only be of a character which could properly be described as misconduct but misconduct of a very serious character.
As to what would be an aggravated form of misconduct cannot be exhaustively enumerated. There can be commission of a grave misconduct-even without the elements such a moral turpitude, dishonesty or depravity being present. This may well be within the realism of a failure to maintain devotion to duty. As is the example cited by a Division bench of the Delhi High Court, where a sleeping fore man at his station fails to respond to an emergency call of a fire accident resulting in the avoidable loss of lives. It could be termed as an act of grave misconduct even in the absence of elements such as dishonesty, depravity or moral turpitude except failure to maintain devotion to duty. It is seen that in terms of Regulation 22 of the Pension Regulations, it is provided that resignation or dismissal, removal or termination of an employee from the service of the Bank shall entail forfeiture of his entire past service and shall not qualify for pensionary benefits.
It may then be noticed that the extreme punishment for misconduct is dismissal from service. If this had been inflicted on the employee while in service, he would have no claim to pensionary benefits. The expression “grave misconduct” if understood as aggravated or a very serious misconduct, much more serious as would be sufficient to dismiss an employee from service, it is inexplicable that the competent authority should choose to impose the penalty of withholding a part of the pension, except in WP 17662/2005. This would apparently lead to the presumption that the misconduct, in the ultimate analysis, did not qualify as a “grave misconduct” but was misconduct which was not even serious enough to warrant dismissal from service. Insofar as the petitioner in WP 17662/2005 is concerned it is not in dispute that he had not contested the proceedings and hence is precluded from challenging the impugn ed order.
10. In the light of the above reasoning and having regard to the findings of fact by the competent authorities in the several petitions and on a close examination of the record, the petitions in WP 18992/2003 and WP 40590/2003, WP 30035/2004, WP 10563/2005 are allowed. The impugned annexures in the said writ petitions are quashed.
WP 17662/2005 stands dismissed.