SURJEET SINGH BHAMRAversusBANK OF INDIA & ORS.

                        (2016] l S.C.R. 879



                   SURJEET SINGH BHAMRA                                  A
                                 v.
                     BANK OF INDIA & ORS.
                   (Civil Appeal No.5038 of2009)
                       FEBRUARY 08, 2016                                 B

[J. CHELAMESWAR AND ABHAY MANOHAR SAPRE, JJ.]
       Service law - Punishment order - Challenge to - Allegation
of commissio11 of several irregularities by appellant-Branch
Manager - Issuance of memo to appellant - Thereafter,
annou11cement of Bank of India Volu11tary Retirement Scheme, 2000
                                                                         c
- In terms thereof, application for voluntary retirement to be made
before 14.12. 2000 and the cut-off date for the Bank to complete all
the formalities was 30.12.2000 - Appellant applied for VRS on
16.11.2000 whereas he was served with the charge-sheet 011
02.03.2001 which was admitted by him - Subsequently, order passed        D
by the Chief Manager on 20. 03.2001 imposing the punishment of
reduction of his basic pay by five stages on the appellant -
Thereafter, appellants application for voluntary retireme11t accepted
by the Bank on 19.06.2001 - Punishment order challenged by the
appellant - Jn writ petition and writ appeal, punishment order upheld
                                                                         E
by the High Courts - On appeal, held: Scheme is partly mandatory
for its compliance for the employee whereas directory for its
compliance for the Bank - Relationship of employee and employer
between the appellant and the Bank continued till 19.06.2001 -
 Thus, Bank was within its rights to take any action under the service
rules against the appellant up to 19.06.2001 - Bank was within its       F
rights to issue a charge-sheet to the appellant on 02. 03.2001 -
Since the memo was served on the appellant prior to introduction
of the Scheme, the disciplinary proceedings were rightly i11itiated
after coming illfo force of the Scheme - Bank was right in
considering and accepting the application on 19.06.2001 - Thus,
                                                                         G
the action taken was just, legal and proper - Having regard to the
nature and gravity of the charge and admission of the charge by
appellant, the punishment imposed on the appellant was just and
 proper, and does not call for interference - Bank/Banking.

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                                 879
880                  SUPREME COURT REPORTS                 [2016] I S.C.R.


A            Bank/Banking - Bank of India Voluntary Retirement Scheme,
      2000 - Relevant clauses therein - Mandatory or directory - For
      ensuring their compliance by the employee and the Bank - Held: If
      a thing is required to be done by a private person within a specified
      time, same would ordinarily be mandatory but when a public
      functionary is required to perform a public function within a time-
B
      frame, the same would be held to be directory unless consequences
      therefor are specified - Thus, the Scheme is partly mandatory for
      its compliance for the employee and directory for its compliance
      for the Bank.
            Dismissing the appeal, the Court
c
            HELD: 1.1 On applying the principle of law in * BllfWlllll
      Singh case and **Visitor, AMU & Ors. case for interpreting the
      clauses of the Scheme that if a thing is required to be done by a
      private person within a specified time, same would ordinarily be
      mandatory but when a public functionary is required to perform a
 D    public function within a time-frame, the same would be held to be
      directory unless consequences therefor are specified, it is found
      that the Bank of India Voluntary Retirement Scheme, 2000 is
      partly mandatory for its compliance so far as the employee-
      appellant is concerned whereas it is directory for its compliance
 E    so far as the Bank-respondent is concerned. [Para 38, 42]
      [892-A, 893-C]
            Ba/want Singh & Ors. vs. Anand Kumar Sharma & Ors. (2003)
            3 SCC433:2003 (1) SCR 653; Visitor, AMU & Ors. vs. K.S.
            Misra (2007) 8SCC 593:2007 (9) SCR 763 - relied on.
 F          1.2 When the clause, which provides for filing an application
      by the employee by a particular date is seen, this clause is
      mandatory in its compliance for the employee because if an
      employee does not file the application before the due date then
      he has no right to file the application thereafter, whereas the clause
 G    which requires a Bank to pass the orders on the application by a
      specified date and complete all the formalities, it is directory in
      its compliance, In other words, it is not mandatory for the Bank
      to necessarily complete all the formalities before the due date
      specified in the clause and if the Bank fails to do it within the
      time but completes the formalities after the specified date, it would
 H    be permissible for the Bank to do so and the act so done would
        SURJEET SINGH BHAMRA v. BANK OF INDIA                          881



be regarded as being in conformity with the requirement of the         A
Scheme. [Paras 39 and 40](892-C-D)
        1.3 The reasons for the same are that the Scheme does not
provide any consequence as to what would follow, if the Bank
does not ensure compliance within the time fixed in the clause.
The appellant being a private individual, if he is required to'do B
some act within a specified time prescribed in the Scheme then it
is mandatory for him to do so within the time specified. The Bank
being a public functionary is required to perform public functions
and hence while discharging such functions, if the Scheme has
not provided any consequence for non-compliance of the act within
time, then the Scheme would not be construed as mandatory but c
it would be construed as directory insofar as the Bank is
concerned. Since the Scheme has not provided for accrual of any
benefit in employee's favour by "deeming fiction" in the event of
 non-compliance on the part of the Bank then no such benefit can
 accrue in favour of an employee automatically by fiction as a result D
 of any non-compliance. In other words, in order to enable an
 employee to claim any benefit by "deeming fiction" on account of
 non-compliance of any act by the Bank under the Scheme, it is
 necessary for the employee to show that the Scheme contains a
 clause for conferral of such benefit on the employee by "deem.ing
 fiction". There is no such clause in the Scheme and lastly, when E
 the Scheme has provided that the voluntary retirement of any
 employee would come into effect only when the order is passed
 on the application of an employee then there is no question of
 any application being accepted by "deeming fiction''. In other
 words, when the Scheme has provided passing of a specific order F
 by the Bank for accepting the application for voluntary retirement
 then the application cannot be held as accepted by "deeming
  fiction". [Para 41)[892-E-H; 893-A-B]
        1.4 The Bank was within its rights· to issue a charge-sheet
 to the appellant on 02.03,2001 because on 02.03.2001, the              G
 appellant was in the employment of the Bank and, therefore, he
 could be subjected to face disciplinary proceedings as per the
 Rules. Sinc.e the memo was served on. the appellant prior to
· introduction of the Scheme, the disciplinary proceedings were
  rightly initiated by serving a charge-sheet on the appellant after
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882                 SUPREME       JURT REPORTS          [2016] I S.C.R.


A coming into force of the Scheme on 01.11.2000. In terms of the
  Scheme, the appellant's application could be considered only after
  conclusion of disciplinary proceedings and, therefore, the Bank
  was right in considering the application and eventually accepting
  it on 19.06.2001. The relationship of employee and employer
  between the appellant and the Bank continued till 19.06.2001
B
  and, therefore, the Bank was within its rights to take any action
  under the service rules against the appellant up to 19.06.2001.
  The Bank took all the disciplinary actions prior to 19.06.2001
  and then accepted the application for voluntary retirement on
  19.06.2001. Such action, was just, legal and proper. [Para 45]
c [893-G-H; 894-A-B]
          1.5 It cannot be said that the appellant stood deemed retired
   on 31.12.2000 because no order was passed or/and communicated
   to him by the Bank on or before 31.12.2000 on his application for
   voluntary retirement and, therefore, the Bank had no right to
 D initiate any disciplinary proceeding and pass the punishment order
   against the appellant after 31.12.2000. [Para 46][894-C-D]
            1.6 Since the appellant admitted the charges leveled against
      him in the charge-sheet, there was no need for the Bank to have
      held any inquiry into the charges. When the charges stood proved
 E    on admission of the appellant, the Bank was justified in imposing
      punishment on the appellant as prescribed in the Rules. There is
      no ground to interfere in the punishment order as having regard
      to the nature and gravity of the charge, the punishment imposed
      on the appellant appears to be just and proper, calling no
      interference therein. [Para 48][894-F]
 F
         1.7 Once the appellant admitted the charges, appropriate
   punishment as prescribed in the Rules could be inflicted on him.
   It was for the Appointing Authority to have taken into account
   the seriousness of the charge and overall performance of the
   appellant while imposing punishment. It was done by the
 G authorities concerned as would be clear from mere perusal of
   the punishment order. [Para 50][894-H; 895-A]
              1.8 The impugned order is upheld though on reasons other
      . than the one glven by the High Court. [Para 53)[895-F-G]

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          SURJEET SINGH BHAMRA v. BANK OF INDIA                               883


                           Case Law Reference                                 A
20()3 (1) SCR 653                      relied on.         Para 37
2007 (9) SCR 763                       relied on          Para 37
          CIVIL APPELLATE JURISDICTION: Civil Appeal No.5038
of2009                                                                        B
    · From the Judgment and Order dated 09.05.2007 of the High Court
of Madhya Pradesh at Jabalpur in Writ Appeal No. I 71 of 2006
      Mehul M. Gupta, Shrinath Agrawal, R. P. Gupta for the Appellant.
    S.Gopakumaran Nair, T. G. Narayanan Nair, K. N.
Madhusoodhanan for the Respondents.
                                                                              c
         The Judgment of the Court was delivered:
      ABHAY MANOHAR SAPRE, J. I. This appeal is filed against
the final judgment and order dated 09 .05.2007 passed by the High Court
of Madhya Pradesh atJabalpur in Writ Appeal No. 171 of2006 whereby            D
the Division Bench of the High Court dismissed the appeal filed by the
appellant preferred against the judgment and order dated 20.04.2006 of
the Single Judge of the High Court in Writ Petition No. 3842 of2002 by
which the Single Judge dismissed the writ petition ofthe appellant wherein
the challenge was to the order dated 20.03.2001 passed by the Chief
Manager, Bank of India (respondent No.3 herein) imposing the                  E
 punishment of reduction of his basic pay by five stages on the appellant.
  . 2. In order to appreciate the issue involved in this appeal, it is
necessary to set out the relevant facts in brief infra.
        3. The appellant was an employee of the Bank oflndia. He was           F
 posted as Branch Manager, Panagar Branch, Jabalpur Region from
 04.-07.1996 to 26.05. I999. According to the appellant, during his tenure,
 the profits of the said Branch were increased from 2 lakhs to 30 lakhs,
 deposits were increased fr.om 6 crores to I I crores and advances were
 increased from 2 crores to 4 crores. The appellant also claimed that the
  NPA of the Branch fell down from 57 lakhs to 20 lakhs. The appellant         G
. claimed that due to his good performance, his Branch won the award of
  Best Branch of the Year.      ·
 .    4. On 08.09.2000, a memo was issued by the Chief Regional
 Manager, Bank of India, Jabalpur fo the appellant mentioning therein
                                                                               tt•
884                  SUPREME COURT REPORTS                     [2016) 1 S.C.R.


A     that during his tenure as Manager of Panagar Branch, certain
      irregularities/lapses were reported in d.isbursement ofloans. The details
      of several irregularities alleged to have been committed by the appellant
      were mentioned in the memo. The appellant was asked to submit his
      reply. On 18. 10.2000, the appellant submitted his reply to the Chief
      Regional Manager, Jabalpur.
 B
              5. On 01.11.2000, the respondent-Bank announced Voluntary
      Retirement Scheme, 2000 (in short 'Scheme') with a view to lay off
      approx. 6000 extra employees. Accordingly, offers were made to the
      staff in general for opting voluntary retirement pursuant to the Scheme
      on or before 31.12.2000.
 c
             6. In response to the said Scheme, the Bank received 7600
      applications as against 6000. The appellant also applied for voluntary
      retirement on I 6.11.2000. The appellant on 05.01.2001 was informed
      that his application is in the process.
 D           7. On 02.03.200 l, the appellant was served with the charge-sheet.
      The charges were in relation to the irregularities which were mentioned
      in the memo dated 08.09.2000.
            8. The appellant filed his reply on 13.03.2001 to the charge-sheet
      and accepted all the charges contained therein unconditionally.
 E          9. By order dated 20.03.2001, the Chief Manager, Dewas Branch
     and Disciplinary Authority, passed an order awarding the consolidated
     penalty ofreduction in the pay of the appellant by five stages in the time
   . scale for a period of3 years and on the expiry of such period, the reduction
     was to have the effect of postponing the future increments of his pay to
     the extent in terms of Regulation No.4( 1) of Bank of India Officer
 F
     Employees' (Discipline & Appeal) Regulations, I 976 ( in short "the
     Regulations").
             10. After passing of the order of punishment, the Chief Regional
      Manager accepted the appellant's application for voluntary retirement
 G    by letter dated 19.06.2001. In this way, the appellant stood retired from
      the services of Bank w.e.f. 19.06.2001.
              11. Being aggrieved by the said order of punishment, the appellant
      preferred a departmental appeal before the Zonal Manager, Bank of
      _India, Ujjain Zone. By order dated 21.06.2002, the Appellate Authority
      dismissed the appeal.
 H
         SURJEET SINGH BHAMRA v. BANK OF INDIA                                 885
              [ABHAY MANOHAR SAPRE, J.]

       12. Challenging the said order, the appellant prefen-ed writ petition   A
being W.P. No.3842 of2002 before the High Court. The Single Judge
of the High Court by order dated 20.04.2006, dismissed the writ petition.
       13. Against the order of the Single Judge, the appellant filed an
intra court appeal being W.A. No. 171 of 2006 before the High Court.
The Division Bench of the High Court by impugned order dated                   B
09.05.2007 dismissed the appeal and upheld the findings of the Single
Judge.
       14. Aggrieved by the said order, the appellant-employee has
preferred this appeal by way of special leave before this Court.
      15. Heard Mr. Mehul M. Gupta, learned counsel forthe appellant           c
and Mr. S. Gopakumaran Nair, learned senior counsel for the respondents.


       16. Mr. Mehul M. Gupta, learned Counsel for the appellant-
employee while assailing the legality and correctness of the impugned
order urged many-fold submissions. Jn the first instance, learned counsel      D
contended that the High Court erred in dismissing the appellant's writ
petition and his intra court appeal thereby erred in upholding the
punishment order dated 20.03.2001 passed by the Bank.
      17. It was his submission that once the appellant applied for
voluntary retirement by ensuring compliance of the requirements of the         E
Scheme then it was obligatory on the part of the Bank to have passed
an order either by accepting or rejecting the appellant's application on or
before 31.12.2000 as prescribed in the Scheme.
       18. Learned counsel pointed out that since the Bank failed to pass
any order on the appellant's application on or before 31.12.2000, its effect   F
was that the appellant's application was deemed accepted by "deeming
fiction" and as a consequence thereof, the appellant stood retired from
the services of the Bank on 31.12.2000.
       19. Learned counsel contended that in these circumstances, the
relationship of employer and employee between the appellant and the            G
Bank came to an end on 31.12.2000 and, therefore, the Bank had no
right to take any action against the appellant much less to serve any
charge-sheet and hold an inquiry into those charges and impose a
punishment by passing order dated 20.03.200 I.

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886                   SUPREME COURT REPORTS                     [20 I 6] I S.C.R.


A              20. Learned counsel further urged thatthough the order of voluntary
      retirement was issued l:iy the Bank on I 9.06.2001 yet according to him
      such order was deemed to have been passed on 3I.12.2000 because in
      terms of the Scheme, an order of acceptance or relieving or rejection of
      voluntary retirement was required to be passed by the Bank on or before
      3 I. I 2.2000. In other words, the submission was that since the compliance
B
      of several clauses of the Scheme was mandatory for the Bank and,
      therefore, if the Bank failed to pass any order on the application by
      31.12.2000, it only meant that either the application stood automatically
      allowed on 3 l.l2.2000 or the order passed on 19.06.2001 by which the
      appellant's application had been accepted was deemed to have been
c     passed on 31.12.2000. In either way, therefore, the appellant's retirement,
      according to learned counsel, came into force w.e.f. 31.12.2000 and not
      from 19.06.2001.
             21. Learned counsel then submitted that the punishment imposed
      on the appellant is not legally sustainable because the disciplinary
D     proceedings which culminated in passing the punishment order were
      initiated by the Bank after 3 I. I 2.2000, i.e. on 02.03.2001, when the
      relationship of employee and employer between the parties had already
      ceased due to acceptance of appellant's application for voluntary
      retirement on 31.12.2000 and hence the Bank had no right to initiate any
      disciplinary proceedings on and after 31.12.2000 against the appellant.
 E
            22. Learned counsel lastly submitted that since on assurance of
      the Bank, the appellant admitted the charges and, therefore, the Bank
      ought not to have imposed any punishment on acceptance of appellant's
      application for voluntary retirement. It was also urged that in any case,
      looking to the past performance and unblemished career of the appellant
 F    and having regard to the gravity of the charges, the punishment inflicted
      on the appellant is excessive and, therefore, liable to be quashed.
             23. In reply, learned counsel for the respondent (Bank) while
      supporting the impugned order urged that no interference in the impugned
      order is called for and the grounds on which punishment was upheld by
 G    the High Court deserve to be upheld by th is Court and lastly, the grounds
      urged by the learned counsel for the appellant in support of this appeal
      also have no merit.
             24. Learned counsel elaborated his submission by contending that
      the reading of the Scheme as a whole would go to show that firstly, the
 H
         SURJEET SINGH BHAMRA y. BANK OF INDIA                                887
              (ABHAY MANOHAR SAPRE, J.]

appellant was not eligible for consideration because disciplinary             A
proceedings were in contemplation against him and later initiated also
and even jf, he was held eligible to apply pursuant to the Scheme yet
according to learned counsel, the Bank was within their rights to pass
orders on his application made for voluntary retirement only on conclusion
of disciplinary proceedings and which the Bank also rightly passed by
                                                                              B
accepting the application on 19.06.2001.
        25. Learned Counsel further pointed out that the Scheme did not
provide any consequence in case if the applications submitted by
employees remain pending on 31.12.2000. It was urged that in the
absence of any specific consequences not being provided in the Scheme
in relation to pending applications on 31.12.2000, there could be no deemed
                                                                              c
acceptance of such applications on 31.12.2000 as was urged by the
learned counsel for the appellant. It was more so as the learned counsel
pointed out that the Scheme had provided that no voluntary retirement
of any' employee would come into force unless an order is passed by the
Bank on his application. In other words, the submission was that every        D
application made by the employee was required to be disposed of by
passing an order by the Bank and, therefore, so long as the order had not
been passed, the applications would remain pending.
       26. Learned counsel urged that the Scheme was directory in its
compliance insofar a~ the Bank was concerned and, therefore, the Bank         E
was within its rights to decide the pending applications even after
31.12.2000 regardless of any time constraint on the Bank in deciding
such applications. Learned counsel urged that the principle of"deeming
fiction" in these circumstances had no application to the Scheme for
want of any specific clause in the Scheme proyiding such fiction.
                                                                              F
       27. Learned counsel further pointed out that since the appellant
was in services of the Bank till 19 .06.200 I, the Bank was within their
rights to issue charge-sheet and conclude the disciplinary proceedings
before 19.06.2001 and which th.e Bank did when it served the charge-
sheet on the appellant on 02.03.2001 and passed the punishment order
on 20.03.200 I on the basis 0f admission made by the appellant admitting      G
the charges leveled against him.
       28. Lastly, learned counsel submitted that inthe light of his above-
mentioned submissions coupled with the fact that there Wa$ no challenge
to the order dated 19.06.2001· by.which
                                    .                       .  .
                                          the appellant's application   for
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888                   SUPREME COURT REPORTS                     [2016] 1 S.C.R.



A     voluntary retirement was accepted, no case is made out by the appellant
      for quashing the punishment order dated 20.03.2001 which was rightly
      confirmed by the Appellate Authority, Writ Court and lastly by the Division
      Bench.
             29. Having heard the learned counsel for the parties and on perusal
B     of the record of the case, we find no substance in the submissions of
      learned counsel for the appellant.
            30. In our considered opinion, the fate of the appeal largely depends
      upon answering three questions, viz., firstly, whether the Scheme in
      question and, in particular, its relevant clauses are mandatory or directory
c     for ensuring their compliance by the appellant and the Bank; Secondly,
      what is the effect of the Scheme on the rights of the appellant and the
      Bank for deciding the legality of the punishment order impugned in these
      proceedings; and lastly, whether any case is made out to set aside the
      punishment order.

D            31. At the outset, we may state that the appellant did not challenge
      the order dated 19.06.2001 passed by the Bank, by which his application
      for voluntary retirement was accepted but confined his challenge in these
      proceedings only to the order dated 20.03.2001 by which he was awarded
      punishment of reduction of his basic salary in five stages in time scale
      for a period of 3 years and its consequential effect in pay fixation as
 E    detailed in the order.
             32. Since the learned counsel for the parties have extensively
      referred to the various clauses of the Scheme to show its object and
      effect for deciding the legality of the punishment order, we consider it
      apposite to refer to these clauses infra:
 F
             "BANK OF INDIA VOLUNTARY RETIREMENT
             SCHEME-2000
             A. ELIGIBILITY:
             All permanent employees of the Bank with 15 years of
 G           service or 40 years of age, as on 01.11.2000.
             The following employees are not eligible for Voluntary
             Retirement under the Scheme:-
             a) Specialists Officers/Employees who have executed
             service bonds and have not completed it, Employees/
 H
  SURJEET SINGH BHAMRA v. BANK OF INDIA                        889
       [ABHAY MANOHAR SAPRE, J.]

Officers serving abroad under Special Arrangements/            A
Bonds, will not be eligible for YRS (the Board of Directors
may however waive this, subject to fulfillment of this bond/
other requirements).
b) Employees against whom disciplinary proceedings are
contemplated/pending or are under suspension.                  B
c) Employees appointed on contract basis.
d) Any other category of employees as may be specified by
the Board.
F) The Competent Authority may accept or reject the            c
application of an employee for voluntary retirement keeping
in view the organizational requirements or any
administrative reason and the decision of the Competent
Authority shall be final. No voluntary retirement shall come
into effect unless the Competent Authority has passed
orders accepting the application of the employees to retire    D
voluntarily under the Scheme.
G) Acceptance and Relieving/Rejection:
On acceptance of the application for voluntary Retirement
of an employee by the Competent Authority, the acceptance
                                                               E
as well as the date of relieving shall be communicated to
the employee through for controlling office/s. the employee
shall stand relieved on the date stipulated in the above
communication. The entire process of acceptance and
relieving shall be concluded not later than 31.12.2000.
                                                               F
In case, the application for voluntary Retirement of an
employee is rejected by the Competent Authority, an order
giving reasons for the same shall be passed by the
Competent Authority and communicated to the employee
through the controlling office, on or before 31.12.2000.
I. EFFECTIVE DATE:                                             G

The Scheme will be effective from 15.11.2000 and will be
in operation for a period of 1 month i.e. up to 14.12.2000
and can be withdrawn at the discretion of the Bank at any
time without assigning any reason.
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890                   SUPREME COURT REPORTS                     [2016] 1 S.C.R.


A           J. RIGHT TO AMEND/ALTER :
            The Bank reserves the right to alter and/or amend the above
            conditions of the Scheme. The applications made under the
            Scheme will be irrevocable and the employees will not have
            the right to withdraw the application once submitted."
B            33. Mere perusal of the afore-quoted clauses would go to show
      that the application for voluntary retirement was to be filed by the
      employee on or before 14.12.2000 and on such application being filed,
      the employee had no right to withdraw the application. The Scheme
      provided that any employee against whom some disciplinary proceedings
c     are contemplated or pending or if he is under suspension then he is not
      eligible to apply for voluntary retirement under the Scheme. The Scheme
      further provided that the Bank is required to pass orders on the application
      (accepting or rejecting) and complete all proceedings arising therefrom
      on or before 31.12.2000. The Scheme also provided that no voluntary
      retirement of an employee would come into effect unless the Bank passes
D     an order on the application.
            34. Before we examine the questions arising in the case, it is
      necessary to see the law, which applies to the case in hand.
             35. A three-Judge Bench of this Court in Balwant Singh & Ors.
 E    vs. Anand Kumar Sharma & Ors., (2003) 3 SCC 433 while examining
      the provisions ofBihar Buildings (Lease, Rent and Eviction) Control Act
      explained as to under what circumstances, the duty cast upon a private
      party is said to be mandatory and why it is said to be directory for any
      public functionary. This is what was held in paragraph 7 of this decision:
             "7. Yet there is another aspect of the matter which cannot
 F
             be lost sight of, It is a well-settled principle that if a thing is
             required to be done by a private person within a specified
             time, the same would ordinarily be mandatory but when a
             public functionary is required to perform a public function
             within a time-frame, the same will be held to be directory
 G           unless the consequences therefor are specified. In
             Sutherland's Statutory Construction, 3rd Edn., Vol. 3, at p.
             107, it is pointed out that a statutory direction to private
             individuals should generally be considered as mandatory
             and that the rule is just the opposite to that which obtains
             with respect to public officers. Again, at p. 109, it is pointed
 H
         SURJEET SINGH BHAMRA v. BANK OF INDIA                              891
              [ABHAY MANOHAR SAPRE, J.]

      out that often the question as to whether a mandatory or              A
      directory construction should be given to a statutory
      provision may be determined by an expression in the statute
      itself of the result that sliall follow non-compliance with the
      provision. At p. 111 it is stated as follows:
             "As a corollary of the rule outlined above, the fact           B
             that no consequences of non-compliance are stated
             in the statute, has been considered as a factor tending
             towards a directory construction. But this is only an
             element to be considered, and is by no means
             conclusive."
                                                                            c
       36. Later, a question arose in the case of Visitor, AMU & Ors.
vs. K.S. Misra, (2007) 8 SCC 593 as to whether a clause in a Statute
of the Benaras Hindu University which inter a/ia provided for doing
certain act within a specified time by the party concerned, if it is not
done within the time specified in a particular clause of the Statute then
whether such clause would be construed as being directory or mandatory      D
in nature and secondly, what would be the effect if the Statute did not
provide for any consequence to accrue in the event of non compliance
of such clause or when the Statute provided for some consequence in
the event of non-compliance.
       37. Jilstice GP Mathur speaking for the Bench examined the issue     E
in the ligh.t of the aforementioned principle laid down in the case of
Balwant Sin~h (supra) and after quoting the principle in paragraph 12
applied the same to examine the relevant clause of the case and held as
under:
       "12. A three-Judge Bench in Balwant Singh v. Anand                   F
      Kumar Sharma has explained in what circumstances the
      duty cast upon a private party can be said to be mandatory
      and para 7 of the Report reads as under: (SCC p. 436, para
      7)
      ..........."Princi.ple quoted" ............................. .        G

      Therefore, in accordance with the law laid down in the above
      authority, t~e provisions of Statutes 61(6)(iv)(b) and (c)
      should be treated as mandatory as it is a private party who
      has to do a particular act within a specified time."
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892                   SUPREME COURT REPORTS                    [2016] I S.C.R.



A            38. When we apply the aforesaid principle oflaw for interpreting
      the clauses of the Scheme in question then we find that the Scheme is
      partly mandatory and partly directory. In other words, it is mandatory in
      comp Iiance of some clauses so far as the employee is concerned, whereas
      it is directory in compliance of some clauses so far as the Bank is
      concerned.
 B
              39. This is clear when we see the clause, which provides for filing
      an application by the employee by a particular date. This clause is
      mandatory in its compliance for the employee because if an employee
      does not file the application before the due date then he has no right to
      file the application thereafter, whereas the clause which requires a Bank
 c    to pass the orders on the application by a specified date and complete all
      the formalities, it is directory in its compliance.
             40. In other words, it is not mandatory for the Bank to necessarily
      complete all the formalities before the due date specified in the clause
      and ifthe Bank fails to do it within the time but completes the formalities
 D    after the specified date, it would be permissible for the Bank to do so
      and the act so done would be regarded as being in conformity with the
      requirement of the Scheme.
             41. This we say for several reasons. Firstly, the Scheme does not
      provide any consequence as to what would follow, ifthe Bank does not
 E    ensure compliance within the time fixed in the clause. Secondly, the
      appellant being a private individual, ifhe is required to do some act within
      a specified time prescribed in the Scheme then it is mandatory for him to
      do so within the time specified. Thirdly, the Bank being a public
      functionary is required to perform public functions and hence while
 F    discharging such functions, if the Scheme has not provided any
      consequence for non-compliance of the act within time, then the Scheme
      would not be construed as mandatory but it would be construed as
      directory insofar as the Bank is concerned. Fourthly, since the Scheme
      has not provided for accrual of any benefit in employee's favour by
      "deeming fiction" in the event of non-compliance on the part of the
 G    Bank then no such benefit can accrue in favour of an employee
      automatically by fiction as a result of any non-compliance. In other
      words, in order to enable an employee to claim any benefit by "deeming
      fiction" on account ofnon-compliance of any act by the Bank under the
      Scheme, it is necessary forthe employee to show that the Scheme contains
 H    a clause for conferral of such benefit on the employee by "deeming
         SURJEET SINGH BHAMRA v. BANK OF INDIA                               893
              [ABHAY MANOHAR SAPRE, J.]

fiction". There is no such clause in the Scheme and lastly, when the         A
Scheme has provided that the voluntary retirement of any employee
would come into effect only when the order is passed on the application
of an employee then there is no question of any application being accepted
by "deeming fiction". In other words, when the Scheme has provided
passing of a specific order by the Bank for accepting the application for
                                                                             B
voluntary retirement then the application cannot be held as accepted by
"deeming fiction".
       42. In view of foregoing reasons, we are of the considered opinion
that the Scheme in question is partly mandatory for its compliance so far
as the employee (appellant) is concerned whereas it is directory for its
compliance so far as the Bank (respondent) is concerned. There can be
                                                                             c
no dispute for the legal proposition that the Scheme can be partially
mandatory and partially directory.
       43. In the light of what we have held above, we find from the
facts of this case that on 08.09.2000, the Bank issued a memo to the
appellant wherein the Bank set out the irregularities alleged to be          D
committed by the appellant. They were replied by the appellant on
18.10.2000. The Scheme, however, came into force on 01. l 1.2000which,
inter alia, provided that the application for voluntary retirement can be
made before 14.12.2000. The cut-off date for the Bank for completing
all the formalities was 30.12.2000.                                          E
      44. The appellant applied for voluntary retirement on 16.11.2000
whereas he was served with the charge-sheet on 02.03.2001. He,
however, admitted the charges on 13 .03.2001. This resulted in imposition
of punishment on the appellant on 20.03.2001. It was followed by
acceptance of his application for voluntary retirement by the Bank on         F
19.06.2001.
         45. In our considered opinion, the Bank was within its rights to
 issue a charge-sheet to the appellant on 02.03.2001 because firstly, on
 02.03.2001, the appellant was in the employment of the Bank and,
 therefore, he could be subjected to face disciplinary proceedings as per     G
 the Rules. Secondly, since the memo was served on the appellant prior
 to introduction of the Scheme, the disciplinary proceedings were rightly
  initiated by serving a charge-sheet on the appellant after coming into
  force of the Scheme on 01.11.2000. Thirdly, in terms of the Scheme, the
  appellant's application could be considered only after conclusion of
                                                                              H
894                   SUPREME COURT REPORTS                    (2016] 1 S.C.R.


A     disciplinary proceedings and, therefore, the Bank was right in considering
      the application and eventuaily accepting it on 19.06.200 l. Fourthly, the
      relationship of employee and employer between the appeilant and the
      Bank continued tiil 19.06.2001 and, therefore, the Bank was within its
      rights to take any action under the service rules against the appellant up
      to 19.06.2001. It is not in dispute that the Bank took ail the disciplinary
B
      actions prior to 19.06.2001 and then accepted the application for voluntary
      retirement on 19.06.2001. Such action, in our view, was just, legal and
      proper.
             46. In the 1ight of foregoing reasons, we cannot accept the
      submission ofleamed counsel for the appellant when he contended that
 c    the appellant stood deemed retired on 31.12.2000 because no order was
      passed or/and communicated to him by the Bank on or before 31.12.2000
      on his application for voluntary retirement and, therefore, the Bank had
      no right to initiate any disciplinary proceeding and pass the punishment
      order against the appellant after 31.12.2000. This submission is devoid
D     of any merit and is accordingly rejected.
             47. Coming to the next question as to whether the punishment
      imposed on the appellant was legal or not. Learned counsel for the
      appellant was not able to point out any illegality or perversity in the
      disciplinary proceedings or in the punishment order dated 20.03.200 l.
 E           48. As a matter of fact, since the appellant admitted the charges
      leveled against him in the charge-sheet, there was no need for the Bank
      to have held any inquiry into the charges. When the charges stood proved
      on admission of the appellant, the Bank was justified in imposing
      punishment on the appellant as prescribed in the Rules. We, therefore,
 F    find no ground to interfere in the punishment order as we also find that
      having regard to the nature and gravity of the charge, the punishment
      imposed on the appellant appears to be just and proper, calling no
      interference therein.
             49. The next submission of the learned counsel for the appellant
 G    that since the appellant had unblemished career throughout in his service
      period, the disciplinary proceedings initiated against the appellant were
      not called for and deserve to be quashed also have no substance.
            SO. Suffice it to say, once the appellant admitted the charges,
      appropriate punishment as prescribed in the Rules could be inflicted on
      him. It was for the Appointing Authority to have taken into account the
 H
             SURJEET SINGH BHAMRA v. BANK OF INDIA                            895
                  [ABHAY MANOHAR SAPRE, J.]

seriousness of the charge and overall performance of the appellant while      A
imposing punishment. It was done by the authorities concerned in this
case as would be clear from mere perusal of the punishment order. The
relevant para of the punishment order reads as under:
              "The acts of misconduct committed by you are serious
         in nature but keeping in view facts and circumstances of             B
         the case, I have decided to take a lenient view in the matter
         and to impose upon you Consolidated Major Penalty of
         reduction in pay by five stages in a time scale for a period
         of three years with the further direction that you will not
         earn your normal increments of pay during the period of
         such reduction and reduction will have the effect of                 c
         postponing your future increments to that .extent in terms
         of clause 4(f) of Bank Of India Officer Employees'
         [Discipline and Appeal) Regulations, 1976.
              I have considered your past record and all other
         extenuating/mitigating circumstances of the case. After a            D
         careful consideration, I find that the ends of justice would
         meet by imposition of the aforesaid consolidated penalty
         on you. I order accordingly."
       51. In the light of foregoing, the submission of the learned counsel
for the appellant on the question of imposition of punishment and on the      E
issue of quantum has no substance and is accordingly rejected.
      52. In view of the foregoing discussion, all the three questions
framed above are answered against the appellant and in favour of the
Bru1k.
                                                                              F
       53. The appeal thus fails and is accordingly dismissed. As a
consequence, the impugned order is upheld though on reasons other
than the one given by the High Court. No costs.
Nidhi Jain                                                Appeal dismissed.