Research › Browse › Judgment

Gauhati High Court · body

1998 DIGILAW 120 (GAU)

Pralay Saran Chakraborty v. State Bank of India and Ors.

1998-05-05

A.K.PATNAIK, D.N.CHOWDHURY

body1998
A. K. Patnaik, J.-- This is an appeal against the judgment dated 10.9.96 of the learned Single Judge of this Court dismissing Civil Rule No. 170 of 1994 filed by the appellant. 2. The facts briefly are that the appellant was an officer in the rank of Junior Management Grade Scale I in the State Bank of India. In the year 1989, he was allowed to officiate in the higher post of Middle Management Grade Scale n at its Regional Office at Agartala. By memorandum dated 28.4.93, the appellant was transferred from the said Regional Office at Agartala and reverted and posted as officer in the rank of Junior Management Grade Scale I at the Agartala Branch of the State Bank of India. Aggrieved by the said transfer and reversion, the appellant filed Title Suit No.32 of 1993 in the Court of the learned Munsiff, West Tripura, Agartala, on 7.5.93 challenging the said order dated 28.4.93. Along with the said title suit, the appellant also filed an application for temporary injunction numbered Misc Case 40 of 1993. But the said prayer for temporary injunction was rejected by the learned Munsiff by his order dated 21.5.93. Against the said order rejecting the prayer for temporary injunction, the appellant filed an appeal before the learned District Judge, West Tripura, Agartala, but the said appeal was also dismissed. The appellant then filed writ petition numbered as Civil Rule No.170 of 1994 before this Court praying for, inter alia, a direction on the respondents to allow the appellant to resume his duties at the Regional Office of the State Bank of India as Middle Management Grade Scale U (for short Middle Management Grade Scale II) and to treat him as on duty in the said post at the Regional Office of the State Bank of India with effect from 8.5.93, and to pay him his salary and allowa­nces for the months of October, November and December, 1993, and January, February and March, 1994. In the said writ petition, a prayer was also made for a writ of Certiorari quashing the order of the learned Munsiff, West Tripura, Agartala, rejecting the prayer of the appellant for temporary injunction, and for transfer of the said Title Suit No.32 of 1993 pending in the Court of learned Munsiff, West Tripura, Agartala, to this Court. In the said writ petition, a prayer was also made for a writ of Certiorari quashing the order of the learned Munsiff, West Tripura, Agartala, rejecting the prayer of the appellant for temporary injunction, and for transfer of the said Title Suit No.32 of 1993 pending in the Court of learned Munsiff, West Tripura, Agartala, to this Court. During the pendency of the aforesaid writ petition, the appellant filed on 31.7.95 a petition for amendment of the writ petition challenging the letter dated 29.3.94 of the Assistant General Manager, State Bank of India, Regional Office at Agartala, permitting the appellant to retire voluntarily from Bank's service as at the close of business on 31.3.94. The respondents contended, inter alia, hi their counter-affidavit that since the appellant had issued a notice dated 31.12.93 to the appropriate authority expressing his intention to go on voluntary retirement on and from 31.3.94 and the said notice had been accepted, the appellant stood voluntarily retired from the Bank's service with effect from 31.3.94 and that after his voluntary retirement the writ petition filed by the writ petitioner/appellant was not maintainable. By the impugned judgment dated 10,9.96, the learned Single Judge held that the notice of the appellant for voluntary retirement had been accepted by the competent authority and that the appellant did not approach the Court with clean hands and, accordingly, dismissed the writ petition awarding cost of Rs.5,000/- to the respondents. 3. At the hearing of this appeal, Sri Pralay Saran Chakraborty, the appellant appearing in person, contended that although initially the appellant issued a notice dated 31.12.93 to various authorities of the Bank for voluntary retirement with effect from 31.3.94, subsequently he also issued notices dated 4.4.94 and 28.4.94 for deferring the date of such retirement and thereafter issued another notice dated 27.6.94 revoking his earlier notice for voluntary retirement dated 31.12.93. . He argued that under the fourth proviso to Rule 19 (1) of the State Bank of India Officers Service Rules framed by the Central Board of State Bank of India under sub-section (1) of section 43 of the State Bank of India Act, 1955, it was only the 'competent authority' who could permit an officer who had completed 20 years of service or 20 years of pensionable service to retire from the Bank's service. But in the instant case, the impugned letter dated 29.3.94 of the Assistant General Manager issued to the appellant would show that it was not the competent authority but it was the appropriate authority who had permitted the appellant to retire voluntarily from the Bank's service as at the close of business on 31.3.94. 4. In reply, Mr. AM Lodh, learned counsel for the respondents, in his written argument contended that the notice of voluntary retirement dated 31.12.93 of the appellant would show that the said notice was issued by the appellant voluntarily and the said notice was accepted by the authorities by letter dated 29.3.94 which was communicated to the appellant and received by the appellant also on 29.3.94. As per the said notice of the appellant for voluntary retirement with effect from 31.3,94, as accepted by the authorities, by letter dated 29.3.94, the appellant's voluntary retirement took effect from 31.3.94 and it was only thereafter that the appellant submitted the letters dated 4.4.94 and 28.4.94 requesting the Bank authorities to defer his voluntary retirement and subsequently the letter dated 27.6.94 revoking his decision to retire voluntarily with effect from 31.3.94. In the said written argument, it was further contended by Mr. Lodh that the competent authority for sanctioning retirement of officers of the grade to which the appellant belongs was the Deputy Managing Director (Personnel) and accordingly the appellant's notice for voluntary retirement was accepted by the Chief General Manager, Local Head Office Guwahati and the Deputy Managing Director (Personnel), Central Office, and this was communicated by the Assistant General Manager of Tripura Region of the State Bank of India. 5. The relevant proviso to Rule 19 (1) of the State Bank of India Officers Service Rules under which voluntary retirement of the appellant appears to have permitted by the respondents is quoted herein below : "19. (1) ... 5. The relevant proviso to Rule 19 (1) of the State Bank of India Officers Service Rules under which voluntary retirement of the appellant appears to have permitted by the respondents is quoted herein below : "19. (1) ... Provided further that an officer who has completed 20 years' service or 20 years pensionable service, as the case may be, may be permitted by the competent authority to retire from the Bank's service, subject to his giving three months* notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived by it." The aforesaid proviso clearly shows that when an officer of the State Bank of India who has completed 20 years' service or 20 years' pensionable service, can retire from Bank's service only if he is permitted by the competent authority. Interpreting a similar provision for voluntary retirement contained in the bye-laws of Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd, the Supreme Court in the case of HPMC vs. Suman Behari Sharma, AIR 1996 SC1353, to which a reference has been made in the impugned judgment of the learned Single Judge, has held that the bye-law confers a right on the employee of the said Corporation to request for voluntary retirement on completion of 25 year's service or on attaining the age of 50 years, but his desire would materialise only if he is permitted to retire and not otherwise. Applying the aforesaid law to the present case, although the above-quoted proviso to Rule 19 (1) of the State Bank of India Officers Service Rules confers a right on an officer who had completed 20 years of service or 20 years of personable service to retire from the Bank's service, as and when such an officer indicates his intention to retire volun­tarily from the Bank' s service, such retirement, in our considered opinion would take effect only when the officer is permitted by the competent authority to do so. 6. The question therefore is as to whether the appellant was permitted by the competent authority to retire from Bank's service with effect from 31.3.94 pursuant to his notice dated 31.12.93 for voluntary retirement. According to the case of the respondents, the competent authority to grant such permission for voluntary retirement of the appellant was the Deputy Managing Director (Personnel), Central Office. According to the case of the respondents, the competent authority to grant such permission for voluntary retirement of the appellant was the Deputy Managing Director (Personnel), Central Office. In the impugned letter dated 29.3.94, the Assistant General Manager, Tripura Region, Agartala has stated that it has been decided by the appropriate authority to permit the appellant to retire voluntarily from the Bank's service as at the close of business on 31.3.94. To find out who was the appropriate authority who had permitted the appellant to retire voluntarily from the Bank's service as at the close of business on 31.3.94 as stated in the impugned letter dated 29.3.94 of the Assistant General Manager, Tripura Region, Agartala, this Court called for the original of the orders of the concerned authority permitting the appellant to retire from service with effect from 31.3.94 and the respondents have filed before this Court a note dated 25.6.94 of the Deputy General Manager (Personnel Admn), Central Office, submitted4o4he Deputy Managing Director (Personnel) The first paragraph of the said note dated 25.6.94 of the Deputy General Manager (Personnel Admn) is to tip following effect: "... We have to advise that Sri P. Chakraborty, Junior Management Grade Scale I of our Guwahati Local Head Office had submitted his application dated 31.12.1993 (Flag A) for voluntary retirement from Bank's service to Guwahati Local Head Office and sent a direct copy to us. We had sent his representation to Guwahati Local Head Office for their comments. Our Local Head Office advised that they have permitted him to retire from Bank's service as at the close of business on 31.3.1994 (Flag B)." The facts stated in the aforesaid note of the Deputy General Manager (Personnel Admn) would show that it was the Guwahati Local Head Office which had permitted the appellant to retire from Bank's service as at the close of business on 31.3.94 and not the Deputy Managing Director (Personnel) who was the competent authority for permitting such retirement. In the said note, however, a proposal was made by the Deputy General Manager (Personnel Admn) that the competent authority may grant post facto approval to the Local Head Office's action in permitting the appellant to retire from Bank's service as at the close of business on 31.3.94, but no orders of the Deputy Managing Director (Personnel) have been produced before us showing that the appellant was permitted to retire from the Bank's service at the close of the business on 31.3.94. The finding of the learned Single Judge in the impugned judgment dated 10.9.96 that the appellant's notice for voluntary retirement with effect from 31.3,94 was accepted by the competent authority of the Bank is therefore liable to be set aside. 7. It was next contended by Sri Pralay Saran Chakraborty, the appellant, that the order dated 28.4.93 transferring and posting him as Junior Management Grade Scale I (for short Junior Management Grade Scale I) permanently and relieving him from his duties as Middle Management Grade Scale II Officer in the Regional Office at Agartala as at the close of business on 8th May, 1993 amounted to reduction in rank and that such an order could be passed by the authorities only after following the procedure for disciplinary proceedings for imposition of major penalties as contained in the State Bank of India Officers Service Rules. The appellant submitted that no such procedure was followed and no show cause or opportunity was given to the appellant before he was reverted from the higher post of Middle Management Grade Scale n to the post of Junior Management Grade Scale I. The appellant therefore prayed that the impugned order dated 28.4.93 should be quashed by this Court and the appellant be allowed to resume his duties in the higher post of Middle Management Grade Scale II at the Regional Office of State Bank of India at Agartala, and his salary and allowances with effect from 8.5.93 in the said post be paid to him. 8. Mr. 8. Mr. AM lodh, learned counsel for the respondents, on the other hand, has contended in his written argument that the appellant had been promoted only on officiating basis to the post of Middle Management Grade Scale II and that he was required to appear in interview for regular promotion to the said post of Middle Management Grade Scale II and that the appellant was informed by letter dated 23.9.91 to appear before the Interview Board but the appellant refused to appear before the said Interview Board and in the circumstances the respondents had no other option but to revert him to his substantive post of Junior Management Grade Scale I. He also relied on the Department Policy of the State Bank of India under which officers absenting themselves from interview for promotion to the next higher grade are liable to be permanently debarred from promotion to higher grades of management and officiating charges. 9. Admittedly, the appellant was only officiating in the post of Middle Management Grade Scale II at the Regional Office of the State Bank of India at Agartala. Therefore, he did not have any right to hold the said higher post of Middle Management Grade Scale II in which he was officiating. Reversion of the appellant from officiating post of Middle Management Grade Scale II to his substantive post of Junior Management Grade Scale I without any punitive element or penal consequences does not amount to reduction in rank requiring the authorities to follow the procedure to be followed in the case of penalties (see - PL Dhingra vs. Union of India, AIR 1958 SC 36 ; State of UP vs. Sughar Singh, AIR 1974 SC 423 and Nyadar Singh vs. Union of India, AIR 1988 SC 1979 ). This position in service law has also been incorporated in Explanations to Rule 67 of the State Bank of India Officers Service Rules. The fifth Explanation in the said Explanations is to the following effect: "Explanations :......... This position in service law has also been incorporated in Explanations to Rule 67 of the State Bank of India Officers Service Rules. The fifth Explanation in the said Explanations is to the following effect: "Explanations :......... (v) reversion to a lower grade or post of an officer officiating in a higher grade or post, on the ground that he is considered, after trial, to be unsuitable for such higher grade or post, or on administrative grounds unconnected with his conduct." The aforesaid Explanation clearly states that reversion to a lower grade or post of an officer officiating in a higher grade or post on the ground that he is not suitable for such higher grade or post or on an administrative ground unconnected with his conduct will not amount to a penalty within the meaning of Rule 67 of the State Bank of India Officers Service Rules. Where therefore the appellant did not appear in the interview for promotion to the higher grade or post in which he was officiating, his reversion to the lower grade or post, namely, Junior Management Grade Scale I, was not on account of his misconduct and such reversion did not amount to major penalty of reduction to a lower grade or post as mentioned in Rule 67 of the aforesaid Rules. 10. While, however, reversion of an officer from the higher post in which he was officiating and to which he had no right has no penal consequences, permanent debarment of such officer reverted to his lower substantive post or rank from promotion in future to higher post or grade has serious penal consequences and cannot be resorted to by .the respondents without complying with the basic requirement of principles of natural justice. In our opinion, therefore, while there is no illegality in the impugned order dated 28.4.93 of the respondents transferring and posting the appellant as Junior Management Grade Scale I at the Agartala Branch of the State Bank of India, the respondents cannot debar the appellant permanently from consideration for promotion to the higher post without complying with the principles of natural justice. 11. 11. Before we part, we would like to state that since the appellant had filed Title Suit No.32 of 1993 in the Court of learned Munsiff, West Tripura, Agartala challenging the impugned order dated 28.4.93 transferring and posting the appellant as Junior Managing Grade Scale I permanently in the Agartala Branch of State Bank of India, we would not have normally decided the dispute between the parties relating to the said order dated 28.4.93 in this writ petition. But considering the fact that both the appellant and the respondents had made their submissions on the merit of the challenge to the said order dated 28.4.93 and this litigation between the parties relating to order dated 28.4.93 has been pending for almost 5 years now, we have dealt with the said submissions with a view to set at rest the controversy between the parties. 12. In the result, we dispose of this appeal by directing that the Deputy Managing Director (Personnel) Central Office, State Bank of India will take a decisions on the voluntary retirement of the appellant and his promotion and his salary and allowances keeping in mind the observations made in this judgment as well as the notice dated 27.6.94 of the appellant revoking his notice to retire voluntarily from service. The said decisions will be taken by the said competent authority within two months from today and the amounts paid to the appellant pursuant to interim orders passed by this Court will be adjusted against the salary or terminal benefits of the appellant, as the case may be. 13. The writ appeal is allowed to the extent indicated above. However, considering the facts and circumstances of the case, the parties shall bear their own costs.