Compulsory retirement
K K S V SOMESWAR
(Querist) 29 March 2014
This query is : Resolved
The company has given Compulsory Retirement (CRS)to an employee on the grounds of a criminal offence which is under trial. In the domestic enquiry just basing on panchanama the company in two sittings punished the employee with CRS. The compnay informed that just basing on hearsay evidence the domestic proceedings can be concluded that the employee did criminal offence. Is it correct ? because there is no evidence in the criminal offence and the employee was implicated by some group. Company informed that appeal can be made within 45 days of receipt of letter. The query is
1. When can the set aside petition be filed ? (now ? or after appeal and company's reply ?)
2. Can the employee accepts the CRS benefits and pension now ? If accepted the CRS benefits, will it be a disqualification for filing set aside petition ?
Request you to clarify in detail. thanks & regards.
Sudhir Kumar, Advocate
(Expert) 29 March 2014
no proper reply can be given as you have not indicated whether it is Govt company or not.
Rajendra K Goyal
(Expert) 29 March 2014
Domestic inquiry and the court proceedings are separate from each other. File appeal within time.
V R SHROFF
(Expert) 29 March 2014
iS employee WORKMAN???
dO NOT SIGN RETIREMENT, OR TAKE ANY COMPENSATION.
YOU CAN ENJOY FULL SALARY LIFETIME, DURING SUSPENSION // & ON AQUITTAL OF CRIMINAL CHARGES!!! JACKPOT FOR U!!
K K S V SOMESWAR
(Querist) 29 March 2014
sorry for troubling the experts and their valuable time. the company is a nationalised bank and the employee is a senior officer in nationalised bank. Received the order copy of Compulsory Retirement Scheme on 26.3.14. It is written in the order that an appeal can be made within 45 days from date of order i.e before 9.5.14.
whether set aside petition can be filed in Honourable High Court after 9.5.14 and after getting reply to appeal from Bank ? or within 30 days from 26.3.14.
Request the experts to clarify. Once again extremely sorry to troubling the experts.
K K S V SOMESWAR
(Querist) 29 March 2014
sorry once again. the officer was a senior branch manager and he was forced to lend to the interest parties without proper security and the officer denied the same. the local authorities planned and sent a fake mail in pseudonymous names against the Executive Director of Bank to some banks which are derogatory like he was dismissed from service. Neither the mail-id was in the name of employee nor it was given through his computer. the mail was given from outside internet cafe where there was no evidence that the employee gave the mail and the case is under trial. the internet cafe owners deposed before honourable judge that they did not see the employee coming to their internet cafe and they did not have any evidence about his giving email. This information was placed before the bank also. the bank in it's letter stated that domestic enquiry goes on the theory of preponderance of probability and circumstantial evidence and hearsay evidence is permitted / admissible in domestic enquiries and there is nothing objectionable in it and does not in any way amount to infringement of rights under Article 21 of Constitution of India.
Sudhir Kumar, Advocate
(Expert) 29 March 2014
anyway. Prima-facie I tend to agree with Mr RK Goyal I will add as under:-
(I) Nationalized Bank have their own Control Appeal and Discipline Rules which are by and large replica of the rules applicable in Central Govt employees.
(II) Employee being workman or not is not at all relevant as these rules apply to all employees, including CMD across the board.
(III) Prima-facie disciplinary action can be taken during dependency of the criminal proceedings WITHOUT WAITING FOR THE VERDICT OF COURT. Nothing prima-facie illegal.
(IV) Such disciplinary action (if criminal case is pending) can be taken only on following the procedure of chargesheet and inquiry. Such procedure cannot be completed in two sitting. In this case it appears that procedure has been overlooked.
(V) Since the employee is not suspended then there is no scope of he getting any salary within period of criminal trial.
(VI) of In this case a major penalty has been given and apparently without inquiry. However if no appeal is made in 46 days then there will be no occasion to appeal after acquittal.
(VII) Since this appeal is intended to reverse loss of employment and if rejected is going to be the basis of litigation, if not drafted by a person well versed in service matter may not be fruitful.
(VII) Even if appeal is not filed within 46 days there is Scope of revision but in the absence of appeal the merits of revision prima-facie get diluted.
(VIII) without this appeal the court is not expected to entertain any litigation against penalty.
(IX) Mere acquittal (after years) is no guarantee of the reinstatement.
(X) Refusal to take terminal benefits on compulsory retirement is no license to join back rather it will add to misery. Acceptance of terminal benefits is no hurdle to reinstatement if the penalty is adjudged as illegal.
So you are not in Jackpot rather in thick soup.
Sudhir Kumar, Advocate
(Expert) 29 March 2014
your specific questions :-
1. When can the set aside petition be filed ? (now ? or after appeal and company's reply ?)
ANS : AFTER APPEAL.
2. Can the employee accepts the CRS benefits and pension now ?
ANS :YES. HE HAS NO CHOICE AT THIS STAGE
If accepted the CRS benefits, will it be a disqualification for filing set aside petition ?
ANS : NOT AT ALL. RATHER HE WILL HAVE NO MONEY TO FIGHT BACK.
Guest
(Expert) 30 March 2014
Mr. Someshwar,
Please clarify, as a Chief Manager, in what way you are concerned with the disciplinary case of the said senior branch manager? I don't think you were the disciplinary authority in his case.
Moreover, from the instance of email by the employee pseudonymously, the case seems to be serious enough, while your description does not give sufficient detail about the charge and evidence adduced during the inquiry against the employee.
K K S V SOMESWAR
(Querist) 30 March 2014
Good evening Shri Dhingra Sir. The CRS was given to my friend in a nationalised bank. The charges mentioned in his charge sheet are "It is alleged against you that you have indulged in acts of creating fake mail ids by impersonation and sending mails which are highly derogatory in nature which are not founded on facts and thus committed acts unbecoming of an officer of the bank, guilty of having committed serious acts of indiscipline contravened the laid down code of conduct attracting stringent and exemplary major penalty". In the domestic enquiry bank produced a copy of the charge sheet filed by IO. Basing on this the total enquiry was conducted in two sittings. The case is presently under trial. He never had a remark in his 35 years of service and struggled for the growth of bank always and he is on the edge of retirement with 3 years service left over. Since he did not accede to the request of his boss for giving loan, they did all this and even in domestic enquiry bank did not produce any evidence except the charge sheet filed by IO in Hon. Court. He requested bank to wait till the trial is over but the bank did not, and punished him with Compulsory Retirement Scheme. During 11 months of his suspension period we saw him struggling in getting good business to his bank with utmost sincerity. thanks & regards to all experts who gave their expert opinion.
Guest
(Expert) 30 March 2014
The burden of proof lied on the prosecution (bank) during the inquiry proceedings. If they failed to prove the Inquiry Officer had no right to assume the charge to have been proved or to expect the charged officer to disprove the charge. So, if treated as proved, that is ethically wrong.
However the employee was required to face the inquiry effectively instead of making request to postpone the inquiry, as the bank/ inquiring authority were not bound to acceed to the request of the employee to postpone the inquiry.
Court case should have been taken as entirely a different entity, as there is a lot of difference between the legal case and the disciplinary case initiated at administrative level.
Now if he has been compulsorily retired, he should start taking benefits of the CRS and to make effective appeal against the order of the penalty order to the appellate authority. He can file a writ petition in the competent court of law against his CRS, if needed only after waiting the decision of the appellate authority. If he wins the case, he can be reinstated with continuity of service, as the intervening period between the date of CRS and the date of judgment can be treated as duty for all purposes.
However, his already existing court case, if any, would have to be handled separately on merits of the case in addition to the case against the penalty order.
CRS would not prove to be a hinderence in filing any case.
K K S V SOMESWAR
(Querist) 05 April 2014
Thanks to all respected seniors and experts for clarification.
Sorry to trouble you again. Whether the officer who got his compulsory retirement from Bank on 13.3.2014 eligible to enroll in Bar Council since he is a Law graduate and got his LLB degree in 1999 ?
Rajendra K Goyal
(Expert) 05 April 2014
Excellent and practical advise by the expert PS Dhingra ji and other experts.
Yes, he can be enrolled consult State bar Council office.
K K S V SOMESWAR
(Querist) 14 August 2014
Respected EXPERTS / SIRs,
Appeal on CRS was rejected by the Appellant Authority and the letter received by my friend on 5.8.2014. What is the time limit to file set aside petition ? As he is in severe financial problems he wanted to receive terminal benefits and monthly pension and wish to file the set aside petition after receiving the terminal benefits and monthly pension ? Is it right ? thanks in advance to all experts.
