V.K.Gupta, J. - (1.) This appeal under Clause 15 of the Letters Patent is filed by the appellant State Bank of India and other appellants against the judgment dated 17.11.95 by a learned single Judge of this court whereby the disciplinary proceedings including the charge-sheet, the enquiry report and the order dated 21.1.92 dismissing the respondent R.N. Banerjee from the service of the appellant bank have all been quashed and set aside with directions to the appellants to treat the respondent/writ-petitioner as having been retired from service of the bank on 28.2.91 and to give him all consequential retirement benefits as are admissible under law. Brief facts leading to the filing of the appeal are that the writ-petitioner (Respondent in this appeal) was working in the State Bank of India where he had joined as a Probationary Officer on 1st March, 1961. In October, 1986 he was posted as the Chief Manager of the bank at its Antwerp (Belgium) branch. He served in that branch uptill April, 1990, thereafter he returned to India on posting. On 17th April, 1990 a show-cause notice was issued to the respondent wherein certain allegations were levelled against him with regard to his allegedly having committed some irregularities and acts of misconduct. We are not concerned with the facts relating to the show-cause notice because ultimately, as initially observed, a formal and regular charge-sheet regarding the same subject matter was also served upon the respondent. However sometime after the issuance of the aforesaid showcause notice the respondent was placed under suspension by an order dated 4.9.90 passed in terms of Rule 50A(1)(a) of the State Bank of India (Supervising Staff) Service Rules. This suspension order was challenged by the petitioner in a writ application filed by him in this court which was disposed of on 14th September, 1990 whereby the learned single Judge issued certain directions regarding the nomenclature to be used instead of the suspension order and the payment of subsistance allowance to the respondent. We are not concerned with these directions as such in the present appeal, except to the extent that the learned single Judge also directed that the appellants would be at liberty to initiate disciplinary proceedings against the respondent in accordance with law and to conclude the same within six months from the date of such initiation. Charge-sheet accordingly was issued to the petitioner on 26th March, 1991. The petitioner submitted his reply to his charge-sheet on 12th April, 1991. He simultaneously filed another writ-application under Article 226 of the Constitution of India in this court wherein the legality and validity of the aforesaid charge-sheet was challenged. The writ application however was disposed of on 28.5.91 by Kalyanmoy Ganguli, J. (as he then was). The operative and relevant part of this judgment dated 28-5-91 reads as under: "The enquiry proceeding is to commence within a fortnight from the date of communication of this order. The enquiry is to be conducted continuously without allowing any adjournment except under compelling circumstances. The enquiry is to be concluded within six months from the date of commencement thereof as indicated hereinbefore. The petitioner is directed to co-operate in the matter of the enquiry. If the petitioner does not so co-operate, the authority concerned will be entitled to proceed ex parte. The report of the enquiry is to be submitted to the appropriate authority within a fortnight from the date of completion of the enquiry. The copy of the enquiry is to be supplied to the petitioner within a week from the date of receipt thereof. The petitioner will be at liberty to make any comments on the report of the enquiry, if any, within a week from the date of receipt thereof. The final order is to be passed within 10 days from the date of receipt of the representation, if any, regarding the enquiry report. The respondents will not give effect to the final order passed in the enquiry for a period of a forthnight from the date of the communication thereof. In default of compliance of any of the directions given hereinabove and on the expiry of the period mentioned above, the enquiry proceeding shall be deemed to have been abandoned by the employer. As the respondents could not file any affidavit-in-opposition, the statement and the allegations made in the writ petition are not admitted. I have not decided the points taken in the writ petition merits. Liberty to mention."
(2.) It appears that consequent upon the aforesaid directions of the learned single Judge while disposing of the aforesaid writ application, the first preliminary hearing in the departmental proceedings was fixed on 8.6.91. One Mrs. Vijai Laxmi Sharma, who at the relevant time was Commissioner for Departmental Enquiries, Central Vigilance Organisation, Government of India, was appointed as the Enquiry Officer in this case. From 8.6.91 when the first preliminary hearing in the enquiry was conducted by the said Enquiry Officer, the Enquiry proceedings continued and ultimately the Enquiry Officer submitted her report dated 16.12.91 wherein she held the respondent guilty of chargesheet 1 to 7 by returning her finding as "proved" in respect of these charges. However regarding charge No. 8 and 9 she held these charges as "not proved" and "established" respectively. By a communication dated 23rd December, 1991 addressed by the Managing Director of the appellant bank to the respondent a copy of the aforesaid enquiry report was forwarded and the respondent was asked to submit his reply/explanation to the said report. The respondent submitted his explanation on 6th January, 1992. On 16th January, 1992 the Managing Director of the bank as the disciplinary authority submitted a Memorandum to the Executive Council of the Bank recommending dismissal of the respondent from the service of the bank in view of the fact that the charges against him were found proved by the Enquiry Officer. A supplementary memorandum dated 28th January. 1992 was also sent by the Managing Director to the Executive Council. The executive council agreeing with the recommendation of the disciplinary authority passed order on 21.1.92 dismissing the respondent from the service of the bank. It is against the said order of dismissal, connected disciplinary proceedings and the charge-sheet arising therefrom as also the enquiry report that the petitioner filed writ-application under Article 226 of the Constitution of India which, as observed earlier was allowed by the learned single Judge in terms indicated herein above. It is against this judgment that the present appeal has been preferred by the appellant Bank.
(3.) The learned single Judge, broadly speaking allowed the writ application on two counts. First of all, the learned single Judge found that the enquiry/disciplinary proceedings were not conducted in accordance with law in the principles of natural justice and rules and regulations on the subject were not properly followed and observed by the Enquiry Officer and others concerned and that the respondent did not get full opportunity of either defending himself effectively or preparing his defence appropriately. According to the learned single Judge all these anomalies and infirmities vitiated the enquiry and prejudiced the respondent. Having thus observed and found that the enquiry and the disciplinary proceedings suffered from glaring illegalities and infirmities, the learned single Judge went on to observe that he still could have asked the Enquiry Officer to carry on the enquiry and complete the same in accordance with law but, as found by him on the second count, the learned single Judge further held that the petitioner from the very thereshold was not at all liable to be proceeded against in the departmental proceedings since as on the date of issuance of the charge-sheet, the respondent was not in the service of the bank. In this regard reliance was placed by the learned single Judge on para 19 of the State Bank of India Officers (Determination of Terms and Conditions of Service) Order 1979 (hereinafter to be referred as 1979 order for short). Para 19 of 1979 Order reads thus: "19.(1) An officer shall retire from the service of the Bank on attaining the age of fifty-eight years or upon the completion of thirty years' service or thirty years' pensionable service if he is a member 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 the age of fifty-eight years or has completed thirty years' service or thirty years' pensionable service as the case may be, should such extension be deemed desirable in the interest of the Bank, so however, that the service rendered by the concerned officer beyond 58 years of age except to the extent of the period of leave due at that time will not count for purpose of pension. Provided further an officer may, at the discretion of the Executive Committee, be retired from the Bank's service after he has attained 50 years of age or has completed 25 years' service or 25 years pensionable service as the case may be, by giving him three months' notice in writing or pay in lieu thereof. Provided further that an officer who has completed 25 years' service or 25 year's pensionable service as the case may be, may be permitted by the Executive Committee to retire from the Bank's service, subject to his giving three months' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived. (2) Notwithstanding anything to the contrary in this order no officer who has ceased to be in the Bank's service by the operation of, or by virtue of, any provision shall be deemed to have retired from the Bank's service for the purpose of the Imperial Bank of India Employees' Pension Fund Rules unless such cessation of service has been sanctioned as retirement for the purpose of either of the said pension fund rules as may be applicable to him. (3) In case disciplinary proceedings under the relevant rules of service have been initiated against an officer before he ceases to be in the Bank's service by the operation of, or by virtue of, any of the said rules or the provisions of this order, the disciplinary proceedings may, at the discretion of the Managing Director, be continued and concluded by the authority by which the proceedings were initiated in the manner provided for in the said 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 of the continuance and conclusion of such proceedings. Explanation: An officer will retire on the last day of the month in which he completes the stipulated service or age retirement.";