A Person Cannot Be Deemed To Be In Service When First Dismissal Order Is In Force: Supreme Court

The Supreme Court Bench comprising Justices Krishna Murari and Bela M Trivedi has held that when the first dismissal order against a person in service is in force, irrespective of all pending litigations or his age of superannuation, he cannot be deemed to be continuing in service. Factual background of the Civil Appeal including its Judicial HistoryThe brief facts of the appeal goes that the respondent, while posted as a Branch Manager at various branches, was found to have committed various lapses, in respect of which he was suspended on 14.06.1993 in terms of Rule 50A(i)(a) of SBIOSR, 1992. On the departmental proceedings having been conducted against him, the Inquiry Authority had largely found the allegations to be proved. The Disciplinary Authority agreed with some of the findings recorded by the Inquiry Authority and called upon the respondent to make his submissions on the same, after which the Respondent was dismissed from service by the Appointing Authority as per the order dated 11.08.1999.The respondent being aggrieved by the said order had filed a Writ Petition before the High Court which was allowed by the Single Bench. An LPA was filed against that order with was finally dismissed.In the meantime, the respondent attained the age of superannuation on 30.11.2009. The Appellant-Bank having filed a SLP challenging the order dated 22.04.2010 passed by the Division Bench, the same was allowed by the Supreme Court on 25.11.2013.In view of the order passed by the top Court, the Appointing Authority issued a show-cause notice to the respondent on 06.02.2014, to which the respondent submitted his response on 10.02.2014.The Appointing Authority after granting personal hearing to the respondent on 14.02.2014, again passed the order of dismissal from service against the Respondent on 17.02.2014 in terms of Rule 67(J) of SBISOR w.e.f. 11.08.1999 and treating his period of suspension as not on duty. Being aggrieved by the said order passed by the Appointing Authority, the respondent filed Departmental appeal which was dismissed on 09.08.2014. The Respondent had then approached the High Court which allowed the said petition, and quashed and set aside the order of dismissal and ordered for payment of all arrears and benefits.The aggrieved appellant-bank filed an LPA on 17.10.2016, which came to be dismissed by the Division Bench vide the impugned order dated 01.02.2018. Therefore the present Civil Appeal was initiated by the Appellant Bank.State's Stand The primary contention raised by the state was that the High Court had wrongly interpreted Rule 19(1) and 19(3) of the SBIOSR, 1992.ASG Balbir Singh, appearing for the Appellant-Bank, argued, “The Supreme Court in the first round of litigation had allowed the appeal filed by the Appellant-Bank and set aside the order passed by the Division Bench, and while observing that the person who hears the matter requires to pass an order, had directed the Appointing Authority to take appropriate decision within 2 months, keeping all the contentions of the parties open. The appointing authority, therefore had issued a show-cause notice to the respondent and after giving him an opportunity of hearing had passed the order of dismissal, which was wrongly set aside by the Single Bench and by the Division Bench.” Respondent's ArgumentsThe Respondent's arguments were in three parts: a) An affirmative action was expected to be taken by the Appellant-Bank in view of the order passed by the Supreme Court on 25.11.2013, as the respondent had already attained the age of superannuation pending the proceeding before the High Court.b) The said order the Supreme Court had set aside the order of Division Bench, however had agreed with the view expressed by the Single Bench that as per the settled legal principle, the person who hears the matter is required to pass an order. The Supreme Court had granted the liberty only to the extent of directing the Appointing Authority to take appropriate action in accordance with law as the respondent had attained the age of superannuation. Under the circumstances, the Appointing Authority was required to take steps either to extend the service of the respondent in terms of Rule 19(1), or to continue the disciplinary proceedings, even after the superannuation of the respondent under Rule 19(3) of the Rules, however the Appellant- Bank did not take recourse to any of the said rules. c) The discretion to continue with the disciplinary proceedings had to be 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 retrospective effect which was not legally permissible. Discussion by the Court On the Legal Provisions InvolvedDiscussing Rule 19(1) of the SBIOSR 1992, the Court held, "On the bare perusal of the said Rules it clearly transpires that as per Rule 19(1), an officer could retire from the service of the bank on ...

A Person Cannot Be Deemed To Be In Service When First Dismissal Order Is In Force: Supreme Court

Anurag Tiwary

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A Person Cannot Be Deemed To Be In Service When First Dismissal Order Is In Force: Supreme Court

Anurag Tiwary

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