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2002 DIGILAW 742 (AP)

B. v. Narayana Rao VS Indian Bank, Madras

2002-06-19

DALAVA SUBRAHMANYAM, S.R.NAYAK

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S. R. NAYAK, J. ( 1 ) THE unsuccessful petitioner-appellant being aggrieved by the order of the learned single judge dated 2-9-1988 in Writ Petition No. 6933 of 1988 has filed this, writ appeal. ( 2 ) IN the writ petition, the petitioner sought for a writ of certiorari for quashing the proceedings dated 4-8-1986 of the Deputy General Manager (Personnel) and the proceedings No. HIM:genl:87, dated 20-10-1987 of the Chief Manager, Himayatnagar, Office of Indian Bank, Hyderabad and for a consequential direction to the respondent to promote the petitioner to the Officer Grade (J. M. Scale-1) post with retrospective effect i. e. , from 8-5-1974 and to grant all the consequential benefits flowing from such promotion. ( 3 ) THE facts leading to the filing of the writ petition be summarized briefly as under: The petitioner while working as Clerk in the establishment of the respondent bank came under zone of consideration for promotion to the post of Officer Grade (J. M. Scale-I) on 8-5-1974. But, his case was not considered for promotion on the ground that he was accused No. 2 in CC No. 17/77 and CC No. 24/77. The petitioner was subsequently acquitted in those criminal cases by the Special Court. After his acquittal, in pursuance of the request of the petitioner, the petitioner s case was considered and he was promoted to Officer Grade (J. M. Scale-I) with effect from 18-6-1980. Thereafter, the petitioner made several representations to the management of the bank to grant him promotion with retrospective effect, i. e. , with effect from 17-5-1974, the day on which his immediate juniors in the feeder cadre were promoted. The bank s management by its letter dated 4-8-1986 informed the petitioner that the petitioner is not entitled to promotion with effect from 7-5-1974 as per the policy existing during the year 1974. The petitioner on 25-8-1987 made further representation with similar request. That request was also turned down by the bank s management by its letter dated 20-10-1987 and that led to the petitioner filing the above writ petition praying for certiorari. ( 4 ) BEFORE the teamed single judge, it was contended on behalf of the petitioner that the pendency of the disciplinary proceedings or criminal case would not have deprived the petitioner of being considered for promotion and non-consideration of the petitioner s case for promotion tantamounted to imposition of punishment. ( 4 ) BEFORE the teamed single judge, it was contended on behalf of the petitioner that the pendency of the disciplinary proceedings or criminal case would not have deprived the petitioner of being considered for promotion and non-consideration of the petitioner s case for promotion tantamounted to imposition of punishment. The petitioner placed reliance on the judgment of this Court in B. Geogre v. I. G. of Police and Ors. , 1973 (2) SLR 131, and the judgments of the Supreme Court in Mangal Das v. Lieutenant Governor (Delhi) and Ors. , 1974 (2) SLR 661 , and State of Mysore v. Syed Mahamood and Ors. , AIR 1968 SC 1113 . It was also contended that since the petitioner was acquitted honourably by the Special Court in CC Nos. 17 and 24 of 1977, he should be treated as totally innocent of the charge and he is entitled to be promoted with retrospective date, i. e. , the date on which his immediate juniors were promoted to the post of Officer Grade (J. M. Scale-I ). The learned single Judge has opined that when the petitioner came under zone of consideration for promotion to the Officer Grade (J. M. Scale-I) in the year 1974, the then existing promotion policy permitted the management not to consider his case for promotion because he was an accused in criminal cases and there was nothing wrong on the part of the management in not considering the case of the petitioner for promotion. The learned judge has also opined that the petitioner became eligible for consideration for promotion to the post of Officer Grade (J. M. Scale-I) only after he was exonerated of the charges in CC Nos. 17 and 24 of 1977. So opining, the learned judge concluded that the petitioner is not entitled to promotion to the Officer Grade (J. M. Scale-I) with retrospective effect. In the premise of the said opinion, the learned judge dismissed the writ petition by the order impugned in this writ appeal. ( 5 ) WE have heard the learned Counsel for the parties. Sri D. V. Sitharama Murthy, learned Counsel for the appellant contended that there is an error apparent in the view taken by the learned Judge. In the premise of the said opinion, the learned judge dismissed the writ petition by the order impugned in this writ appeal. ( 5 ) WE have heard the learned Counsel for the parties. Sri D. V. Sitharama Murthy, learned Counsel for the appellant contended that there is an error apparent in the view taken by the learned Judge. It is not the case of the management that in the year 1974, it considered the case of the petitioner for promotion and for valid reasons rejected his claim for promotion and subsequently promoted him by Office Order dated 18-6-1980 and if that were to be the case, perhaps, the petitioner could not have claimed, as a matter of right, that he should be promoted to the post of Officer Grade (J. M. Scale-I) with retrospective effect. But, here is a case where the management deferred the consideration of the case of the petitioner when he came under zone of consideration for promotion before the D. P. C. on 18-5-1974 merely on the ground that he was accused No. 2 in CC No. 17/77 and CC Nos. 24/77 and only when he was acquitted honourably by the Special Court in those criminal cases, his case was considered. Therefore, the management having found him fit for promotion, it ought to have promoted the petitioner to the post of Officer Grade (J. M. Scale-I) with effect from the anterior date on which date his immediate junior or juniors was/were promoted. ( 6 ) IT is well settled position in law that if an employee s case is not considered for promotion merely on the ground that disciplinary proceedings are pending or prosecution is pending in the Criminal Law Court or on some other similar legally permissible grounds and his case is deferred for consideration in future, after the termination of such proceedings and prosecution, if the concerned employee is acquitted or exonerated honourably and if the employer considers such person for promotion and finds him fit for promotion to the post, then, such promotion should take effect from the anterior date i. e. , the date on which his immediate junior or juniors was/were promoted to the post in question except where the relevant recruitment rules direct otherwise. If such treatment is denied to an employee, it is trite, the rights guaranteed to the employee under Article 14 and Article 16 of the Constitution, would be offended. It is not a case where the bank s management disagreed with the acquittal of the petitioner by the Special Court and initiated disciplinary proceedings against the petitioner and he was found guilty in such disciplinary proceedings. Looking from any angle, we do not find any justification to deny the relief sought by the appellant petitioner. The view taken by the learned judge, with respect, if we may say so, is not good law. ( 7 ) IN the result and for the foregoing reasons, we allow the writ appeal and set aside the order of the learned single Judge, dated 2-9-1998 and allow Writ Petition No. 6933 of 1988 and quash the impugned proceedings in the writ petition. A direction shall issue to the management of the respondent bank to grant promotion to the petitioner to the post of Officer Grade (J. M. Scale-I) with effect from the date on which his immediate junior was promoted to the post of Officer Grade (J. M. Scale-I ). No order as to costs. ( 8 ) BEFORE parting with this case, we think it appropriate to record the submission of Sri D. V. Sitharam Murthy, learned Counsel that subsequent to the filing of the writ appeal, the petitioner was permitted to retire voluntarily under Voluntary Retirement Scheme (for short v. R. S. ) framed by the management of the bank. Therefore, the effect of this judgment is to work out the monetary benefits payable to the petitioner consequent upon his retirement under the V. R. S.