JUDGMENT :

Arindam Sinha J.

1. We had recorded dispensation of all formalities with consent of parties, for hearing of this appeal on papers disclosed in the stay application. Mr. Majumder, learned advocate appearing on behalf of respondent/writ petitioner, had waived service of notice of appeal.

2. Mr. Ahmed, learned advocate appears on behalf of appellants and relies on clause (b) in sub-section (1) of section 10 in Banking Regulation Act, 1949. He submits, the provision, as applicable, is, no banking company shall employ any person who has been convicted by the criminal Court of an offence involving moral turpitude. He draws attention to show cause notice dated 6th December, 2012. It recites that vide orders dated 26th April, 2012 and 1st May, 2012 the criminal Court had convicted respondent under section 302 of Indian Penal Code, for causing death of his wife. He was told that as he had been convicted by competent Court for an offence amounting to moral turpitude, under said provision of the Act of 1949, he cannot be continued in employment of the Bank. Respondent replied to the show cause by letter dated 24th December, 2012 informing he had appealed against the conviction. That he was under suspension with effect from date of conviction and, inter alia, as follows :-

“It would amount to gross miscarriage of justice if any further action is contemplated against me, prior to hon’ble court’s verdict in the matter. I shall be highly obliged if you will take a compassionate view in the matter.”

3. He submits, on long pendency of the appeal, there was delay and finally order dated 30th January, 2016 was passed imposing punishment of compulsory retirement and that the period of suspension will be treated as ‘time not spent on duty’.

4. He relies on regulation 11 in Bank of Baroda Officer Employees’ (Discipline and Appeal) Regulations, 1976. Regulation 11 is reproduced below:-

“11. SPECIAL PROCEDURE IN CERTAIN CASES

“Notwithstanding anything contained in regulation 6 or in regulation 7 or in regulation 8 the Disciplinary Authority may impose any of the penalties specified in regulation 4 if the officer employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial.

Provided that the Officer Employee may be given an opportunity of making representation on the penalty proposed to be imposed before any order is made.”

5. He cites judgment of Supreme Court in Sushil Kumar Singhal vs. Punjab National Bank reported in (2010) 8 SCC 573, paragraphs 18 and 23 to 26, on moral turpitude.

6. Mr. Mazumdar draws attention to section 19 in Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970, to submit, thereby was given power to Board of Directors of a corresponding new bank, as is appellant, to make regulations after consultation with Reserve Bank and with previous sanction of the Central Government. The Regulations are Bank of Baroda Officer Employees’ (Discipline & Appeal) Regulations, 1976. He submits, this subordinate legislation gives discretion to the disciplinary authority, regarding imposition of any of the penalties, if the officer employee has been convicted on a criminal charge, or on the strength of facts or conclusions arrived at by a judicial trial. There is a proviso. The consequence under section 10(1)(b) in Banking Regulation Act, 1949, by the Regulations, has been transformed to discretion on imposition of penalty. Procedure in regulations 6, 7 or 8 must be followed as applicable to imposition of penalties.

7. He submits further, his client has not committed any act in relation to his service, for which there can be initiation of disciplinary proceeding against him. On query Mr. Majumder submits, no cross-objection was filed. An alleged crime, where he is the accused, has rendered him exposed to a situation suffered, regarding his service. By April, 2016 his client would have achieved pensionable service, but the penalty order says that period under suspensio