R. N. KAPUR v. UCO BANK — 1993 DIGILAW 564 (DEL)

D. K. Jain ( 1 ) BY this petition under Article 226 of the Constitution, the petitioner seeks a writ of mandamus to its erstwhile employers, namely, the UCO Bank and its General Manager (Personnel), directing them to grant promotion to the petitioner with retrospective effect to scale II from 29 August 1979 and to scale III from 01 July 1983 in terms of clause 6 (in part C) of the head office staff circular letter No. 52/75 dated 23 June 1975. ( 2 ) THE petitioner, who had joined the respondent bank as a clerk on 02 January 1958, was later promoted as an officer in the bank s junior management scale-I (Grade D) effective from 15 December 1972. While he was working as an Assistant Manager in the Punjabi Bagh branch of the bank, the petitioner was charge sheeted on 29 August 1978 for allegedly committing some irregularities between 11 August 1976 and 14 July 1977. Departmental enquiry initiated against him was concluded on 28 May 1979; enquiry officer found him guilty and ultimately vide order dated 24 September 1980, the disciplinary authority imposed on the petitioner a punishment of withholding of one increment of his pay, without cumulative effect. The petitioner s appeal against the said punishment was dismissed on 24 April 1981 and the matter rested there. ( 3 ) IT appears that after the petitioner was charge sheeted, a DPC was held and some officers, who the petitioner claims were junior to him, were promoted to next higher scale II (grade C ). Since the petitioner felt that on 15 December 1977 he had become eligible for promotion to the next higher grade and had not been considered for the same with effect from 01 September 1978, he made a representation to the General Manager on 09 March 1979 but without success. He was informed that since departmental enquiry was pending against him, he could not be considered for promotion at that stage in terms of the aforesaid Office Circular. The next promotion process with effect from 01 July 1983 commenced some time in the year 1983 and although in the final list of generalist/ specialist officers issued in terms of paras 13 and 14 of the promotion policy, the petitioner was at serial No. 125, he did not qualify for promotion. The next promotion process with effect from 01 July 1983 commenced some time in the year 1983 and although in the final list of generalist/ specialist officers issued in terms of paras 13 and 14 of the promotion policy, the petitioner was at serial No. 125, he did not qualify for promotion. On his preferring an appeal to the Chairman on 03 October 1983, he was called for interview on 05 March 1984 by the Promotion Committee, but no result was communicated. He made yet another appeal on 16 August 1984 and finally vide letter dated 02 May 1985, he was informed that his appeals had not been found to be acceptable. The petitioner kept quiet till 02 September 1988 when he made yet another appeal to the Chairman, which was turned down on 14 October 1988 and he was informed that in the promotion process of 1983, the next promotion process initiated after the expiry of his period of punishment, he could not secure the minimum qualifying marks in performance appraisal and written test for being considered for promotion to scale II and, therefore, he could not be promoted with effect from 01 July 1983. Although in the meanwhile vide order dated 15 September 1988, ,the petitioner was promoted to scale II with effect from 01 January 1988, he seeks to challenge in this petition his non-consideration and/or promotion under the promotion processes initiated in the years 1978 and 1983. ( 4 ) THE petition is opposed by the respondents who have filed counter affidavit as also on additional affidavit. Although in the counter affidavit it has been stated that the petitioner was not promoted on merits in the year 1978 but in the additional affidavit it has been categorically stated that he was not considered for promotion on account of the pending enquiry and the stand taken in the counter affidavit to that effect is also sought to be clarified. Thus the bank s final stand is that the petitioner was not considered for promotion in 1978 on account of the pending disciplinary proceedings in terms of clause 5 of part C of the staff circular letter dated 23 June 1975. ( 5 ) MR. Thus the bank s final stand is that the petitioner was not considered for promotion in 1978 on account of the pending disciplinary proceedings in terms of clause 5 of part C of the staff circular letter dated 23 June 1975. ( 5 ) MR. Bishwajit Bhattacharya, learned counsel for the petitioner, has assailed before me the action of the respondents in not promoting the petitioner from scale I to scale II with effect from 29 August 1979 and to scale III with effect from 01 July 1983 and has canvassed three principal contentions, namely, (i) though on account of pending enquiry, the bank had not considered him for promotion in the promotion process set in motion in the year 1978 because of clause 5 of pan C of the aforesaid circular letter, it virtually ignored clause 6 of the same policy, under which it was incumbent upon the respondent to consider the petitioner for promotion to scale II on the expiry of one year, the period for which increment had been stopped (ii) moderation of his assessment report for the purpose of promotion for the year 1983 by the review authority is bad, in that the review authority, namely, Mr. N. L. Golani, was the disciplinary authority who had upheld the charges levelled against him and was, therefore, bound to be biased against him, and (iii) the appeal of the petitioner had also been illegally rejected by the Committee because they were influenced by the views of Mr. Claim No. 5 N. L. Golani, who was also a -member of the Committee. ( 6 ) MR. K-N. Bhatt, Senior Advocate, appearing for the respondents, in resistence to the above has heavily relied upon the promotion policy and has supported the action of the respondents. He has also raised a preliminary objection that the present petition badly suffers from the vice of laches because after the rejection of petitioner s final appeal on 02 May 1985, he had raked up the issues, raised in the present petition, tor the first time on 02 September 1988 when he filed a third appeal. He has also raised a preliminary objection that the present petition badly suffers from the vice of laches because after the rejection of petitioner s final appeal on 02 May 1985, he had raked up the issues, raised in the present petition, tor the first time on 02 September 1988 when he filed a third appeal. He has pointed out that the petitioner s prayer regarding his promotion with effect from 29 August 1979 was neither made nor pending in the year 1981 when all proceedings relating to enquiry against him came to an end and this issue was not raised even in his appeal, filed on 03 October 1983, against his non-promotion in the year 1983. ( 7 ) THOUGH I do find some substance in the preliminary objection raised by Mr. Bhatt but I am not inclined to reject the petition on the preliminary objection as I have heard learned counsel for the parties at length on the merits of the case. ( 8 ) IN order to appreciate the rival contentions it would be necessary to refer to clauses 5 and 6 of part C of the staff circular letter No. 52/75 dated 23 June 1975 which have been relied upon by both the sides. These are as under: "5. . An officer against whom departmental enquiry or any other enquiry by an outside agency like the Central Bureau of Investigation, Enforcement Directorate, etc. , is pending, shall not be considered for promotion until the enquiry is completed; if he is exonerated, his case for promotion to the next higher Grade shall be considered in the light of findings of the enquiry. "6. An officer who is awarded punishment in the form of stoppage of a certain number of increments shall be considered for promotion only after the expiry of the equivalent number of years for which the increment has been stopped. "6. An officer who is awarded punishment in the form of stoppage of a certain number of increments shall be considered for promotion only after the expiry of the equivalent number of years for which the increment has been stopped. " ( 9 ) FROM a bare reading of the two clauses it is evident that an officer against whom departmental enquiry is pending, is not to be considered for promotion until the enquiry is completed and he is exonerated, in which case he is to be considered in the light of the findings of the enquiry officer and if an officer is awarded punishment in the form of stoppage of a certain number of increments, he is to be considered for promotion only after expiry of the equivalent number of years for which the increment has been stopped. ( 10 ) THE petitioner has neither challenged the said staff circular nor has he disputed the applicability of clause 5 of part c thereof at the time when the promotion process was on in the year 1978, but what is now sought to be urged on his behalf is that in the same promotion process on account of pending enquiry against the petitioner, the bank should have adopted the sealed cover procedure and if the DPC had recommended his promotion, he should have been promoted in terms of clause 6 on 29 August 1979 i. e. immediately on the expiry of one year for which his increment was stopped. In support reliance is placed on the judgment of the Supreme Court in the case of Union of India, etc. vs. K. V. Jankiraman, etc. etc. , AIR 1991 SC 2010 . ( 11 ) IN my view, the argument is fallacious and is only of academic interest. In the first instance, it is not pointed out as to how in the absence of any provision for adoption of sealed cover procedure, in the promotion policy, it should have been adopted in the petitioner s case or further that it had been adopted by the bank in any other case. Secondly, it is common ground that in terms of Clause 5 of the circular, the petitioner could not be considered for promotion till departmental enquiry against him was completed. Secondly, it is common ground that in terms of Clause 5 of the circular, the petitioner could not be considered for promotion till departmental enquiry against him was completed. Besides, since he was found guilty and was awarded punishment of stoppage of one increment, in terms of clause 6 thereof, he could be considered for promotion only after the expiry of the equivalent number of years for which the increment had been stopped. The intention of clause 6 is that a person should not be debarred from promotion for all time to come if there has been a departmental enquiry or other proceedings as contemplated in clause 5. Clause 6 cannot be read to mean that when an employee is visited with a penalty as a result of the disciplinary proceedings, on the expiry of period of such punishment, he should be given promotion from the original date when he was due for consideration for promotion. Admittedly, after 1978, the next DPC was held in the year 1983 and the. petitioner was duly considered for promotion but he failed to qualify. ( 12 ) ASSUMING for the sake of argument that there was a provision for taking recourse to the sealed cover procedure and it had been adopted in the instant case, vet in view of the fact that the petitioner was found guilty and punishment was a warded, he could not be promoted from the original date for which the DPC had been held. In K. V. Jankiraman s case (supra) while disagreeing with the view taken by a Full Bench of the Central Administrative Tribunal that when an employee is visited with a penalty as a result of disciplinary proceedings, there should be a review DPC on the date when the sealed cover procedure was followed and the review DPC should consider the findings of the sealed cover as also the penalty imposed, the Supreme Court observed thus: ". . . . TO qualify for promotion, the least that is expected of an employe is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in presents. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. " ( 13 ) THUS, there is no merit in the contention and the same is accordingly rejected. ( 14 ) THIS brings me to the question as to whether the moderation of the marks of the petitioner by the reviewing authority and the appellate committee is biased and illegal on account of the fact that the reviewing authority happened to be the disciplinary authority and was present when the petitioner s appeal was deliberated upon by the appellate authority. To appreciate the contention raised it would be appropriate at this stage to refer to the procedure prescribed in the promotion policy for appeal by an officer who has been denied promotion. Clause 25 of the promotion policy, which prescribes the procedure for appeals, in so far as presently relevant, provides: "21. PROCEDURE FOR APPEALS: 21. 1 An officer who has been denied promotion shall have a right to appeal directly to the Chairman and Managing Director. 21. 2 In case of officers upto Scale III, the Chairman and Managing Director will constitute committee (s) to consider the appeals and submit to him their recommendations. 21. 3 If an officer in Junior Management Grade Scale I and Middle Management Grade Scale II and III has not been promoted only because of his securing 40% marks or over in assessment but less than the minimum required marks, he shall invariably be interviewed by the above committee (s ). 21. 3 If an officer in Junior Management Grade Scale I and Middle Management Grade Scale II and III has not been promoted only because of his securing 40% marks or over in assessment but less than the minimum required marks, he shall invariably be interviewed by the above committee (s ). The reviewing authority of the officer shall also be present at the time of the interview, so that the committee may ascertain his views on the subject matter. The basic object of the committee will be to assess the performance, job knowledge and potential of the officer through the process of interview with a view to determine whether the marks awarded to him reflect his correct assessment. The committee will be competent to make such recommendations as are considered appropriate to the Chairman and Managing Director. In other cases, the appeals shall be considered and disposed of in such manner as may be decided by the committee (s ). The composition of the committee (s) will be as under: of (i) An officer in Top Executive Grade; (ii) An officer in Senior Management Grade; (iii) Chairman or member of Banking Service Recruitment Board or a representative from NIBM or any other management institute not below the rank of a professor or a senior faculty member from a Bankers Training College. ( 15 ) FROM the above procedure, it is evident that the promotion policy provides for a complete, independent and self contained procedure for appeal by an employee against his non-promotion to a committee which consists of three high ranking officers. Therefore, even if it is assumed, though there is no material on record to do so, that the reviewing authority could hold some bias against the petitioner on account of his having dealt with his disciplinary proceedings at some stage, the mere fact that the petitioner s appeal against the moderation by the reviewing authority, was considered by a high powered independent appellate committee, the allegation of bias against the reviewing authority is not of material significance. It is also clear from clause 21. 3 set out above, that the reviewing authority of the employee concerned has to be present at the time of interview only to facilitate the committee to ascertain his views on the subject matter. It is also clear from clause 21. 3 set out above, that the reviewing authority of the employee concerned has to be present at the time of interview only to facilitate the committee to ascertain his views on the subject matter. He is neither a member of the appellate committee nor is he required to participant in the deliberations of the committee, nor are his views binding on the committe In the counter affidavit filed by the respondents, they have disclosed the names of the members who constituted the appellate committee and it is stated that Mr. N. L. Golani, the reviewing authority, was present only in terms of the aforesaid clause 21. 3 so that the committee could ascertain his views. There is nothing to suggest to the contrary. Bias must be proved to exist before the proceedings will be vitiated on that ground. Mere suspicion without any attending circumstances, clearly indicating bias. would not suffice. Merely because Mr. Golani was present at the time of interview of the petitioner by the appellate committee, in the absence of any indication as to the role played by him to the prejudice of the petitioner, it cannot he said that the decision of the appellate committee was influenced by his presence and the proceedings were thus vitiated. Even otherwise, there is no allegation of misconduct in the writ petition against the appellate committee. ( 16 ) THE ratio of the decision of the Supreme Court in Institute of Chartered Accountants of India vs. L. J. Ratna and others, AIR 1987 S. C. 71, on which reliance was placed by learned counsel for the petitioner, is not applicable to the facts of the present case. In that case, while holding that the finding of the Council was vitiated by the participation of the members of the disciplinary authority, the court had noticed that the President, Vice President and three members of the Council composed the disciplinary authority and further that the President and Vice President, who were on the disciplinary committee did hold significant status in the meetings of the council and the possibility of the Council disagreeing with the report of the disciplinary authority in the presence of the President and the Vice President and other members of the committee who also were in the council would be rather remote. The court observed that the member whose conduct has been subject of enquiry by the disciplinary authority ending in conclusions adverse to him, can legitimately entertain an apprehension that the President and the Vice President of the Council and other members of the disciplinary authority would maintain the opinion expressed by them in their report and would press for the acceptance of their report by the Council. As noticed above, in the instant case, the reviewing authority, namely, Mr. N. L. Golani, was not a member of the appellate committee. He was only present at the time of petitioner s interview so that the committee could ascertain his views. ( 17 ) IN the absence of any allegation of any sort against any of the members of the committee, I feel that the apprehension of the petitioner that Mr. Golani must have influenced the views of the committee is ill-founded and cannot be accepted. ( 18 ) IN view of the discussion above, I do not find any merit in the writ petition, the same is accordingly dismissed and the rule is discharged. ( 19 ) THERE will be no order as to costs.