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2004 DIGILAW 1210 (RAJ)

State Bank of India v. Sampat Raj Mewara

2004-08-25

ANIL DEV SINGH, KRISHAN KUMAR ACHARYA

body2004
Honble KUMAR, J.–This special appeal is directed against the judgment dated 27.9.2002 rendered by the learned Single Judge in S.B. Civil Writ Petition No. 3079/2002. (2). The relevant facts of the case are that the respondent- petitioner is working as Electronic Automatic Machine Operator (EAMO) at State Bank of India, Pali Marwar. He was entrusted with the work on the post of draft clearing. As per the instructions of the Bank, some drafts of Bank were reportedly lost and accordingly the numbers of those drafts were installed in the computer as such the lost drafts should not be cleared. The instructions were received from the higher authorities, that the drafts issued in the old format should not be cleared/passed. It has been alleged by the appellants that the respondent-petitioner had the enough knowledge about the instructions issued by the higher authorities and of the lost drafts. In spite of the above fact, the respondent-petitioner has said to have deleted the command of lost draft and cleared the drafts in dispute, for which a huge loss of Rs. 1,82,236/- was borne by the appellant- respondents. Thereafter a letter Annexure-1 alongwith the copies of the disputed drafts were sent to the respondent-petitioner and he was asked to submit his explanation. The respondent-petitioner submitted his explanation vide Annexure-2. After that, another letter dated 31.5.2001 (Annexure-3) was also sent to the respondent-petitioner by the appellant-respondents stating therein that the computer system was showing the details of the lost drafts and there was difference in amount in figures and words then how the above drafts were passed by the respondent- petitioner. The respondent-petitioner again submitted his reply (Annexure-4). The whole matter was reported to the higher authorities and as per (Annexure-5, the higher authorities appellant-respondent No. 3 issued a memorandum to the respondent- petitioner (Annexure-5 & 7), calling upon the explanation and stating therein that the reply of the respondent-petitioner was not acceptable and appropriate disciplinary action for committing fraud which amounts to the gross-mis-conduct is being contemplated against the respondent-petitioner. Therefore, the respondent-petitioner was not found eligible to appear in the promotional tests. Thereafter, the writ petition was filed by the respondent-petitioner with the following prayers :- A. the non-petitioners be restrained from disallowing the petitioner from appearing in the promotional examination to be held in the month of August, 2002 and in future also. Therefore, the respondent-petitioner was not found eligible to appear in the promotional tests. Thereafter, the writ petition was filed by the respondent-petitioner with the following prayers :- A. the non-petitioners be restrained from disallowing the petitioner from appearing in the promotional examination to be held in the month of August, 2002 and in future also. B. the non-petitioners be directed to include the name of the petitioner in list of eligible candidates for promotional examination to be held in the month of August 2002 and in future also. C. The non-petitioners be directed to promote the petitioner, if he succeeds in the promotional examination w.e.f. 2.9.2001 on which date the first promotional examination was held after becoming eligible of petitioner for promotion with all consequential benefits. (3). The appellant-respondents filed the reply to the writ petition and pleaded that the respondent-petitioner was responsible for clearing of the two drafts, which were reportedly lost and the numbers of those drafts were installed in the computers. The respondent-petitioner had enough knowledge regarding the instructions issued by the higher authorities and lost drafts. Thus, a memorandum (Annexure-5) was issued to the respondent-petitioner as disciplinary action was contemplated against him. The appellant-respondents have also pleaded that the banking services are very responsible services and it requires higher skill and integrity and since the respondent-petitioner has committed fraud and grave misconduct, therefore, as per the Debarment Policy of the Bank (Annexure-R/6), the respondent- petitioner was not entitled for any relief. (4). After hearing both the parties, the learned Single Judge has allowed the writ petition to the extent that the appellant- respondents were directed to allow the respondent-petitioner to appear in the promotional examination which were to be held in last week of September, 2002 or in future also. It was also directed that the result of the respondent-petitioner be kept in sealed cover and the same was directed to be opened by the respondents after the enquiry is over and the respondents were kept free to proceed further according to result of the enquiry. The learned Single Judge further directed that this order would not come in their way in any manner. Aggrieved by this order the appellants have filed this appeal. (5). We have heard the learned counsel for both the parties and gone through the judgment passed by the learned Single Judge as well as the record of the case. (6). The learned Single Judge further directed that this order would not come in their way in any manner. Aggrieved by this order the appellants have filed this appeal. (5). We have heard the learned counsel for both the parties and gone through the judgment passed by the learned Single Judge as well as the record of the case. (6). The main contention of the learned counsel for the appellant-respondents is based on the Debarment Policy of Bank (Annexure-R/6). Learned counsel for the appellant-respondents has argued that if enquiry is contemplated against an employee for an offence amounting to fraud, misappropriation of money, forgery or any other act which prima facie amounts to criminal misconduct then as per policy the employee shall be debarred from promotion for a period not exceeding 3 years, reckoned from the date such contemplation is advised to the employee in writing. In all other cases of disciplinary action which are of lessor gravity, the bar will operate as from the date the employee is served with a charge-sheet. Therefore, his contention is that as per the policy, enquiry was contemplated against the respondent- petitioner regarding the offence of fraud, misappropriation of money and forgery, which amounts to the criminal mis-conduct and also caused the monetary loss of Rs. 1,82,236/- to the Bank as he has cleared the drafts, which were reportedly lost and numbers of those drafts were also installed in the computer. The respondent- petitioner had the enough knowledge regarding the instructions issued by higher Authorities about the lost drafts. Therefore as per memorandum Annexure-5 and also Annexure-7, the respondent- petitioner was advised that he is not eligible to appear in the promotional test, therefore, learned Single Judge has not considered the Debarment Policy of the Bank in true prospect and entirety and has allowed the respondent-petitioner to appear in the promotional examinations and result of the petitioner was directed to be kept in sealed cover till the enquiry is over. Learned counsel for the appellants has argued that as per Clause 2 of the Debarment Policy (Annexure-R/6), the respondent- petitioner is not entitled for promotion for a period not exceeding three years from the date such contemplation is advised to respondent-petitioner. Learned counsel for the appellants has argued that as per Clause 2 of the Debarment Policy (Annexure-R/6), the respondent- petitioner is not entitled for promotion for a period not exceeding three years from the date such contemplation is advised to respondent-petitioner. When the respondent-petitioner is not entitled for promotion for a period of three years, no useful purpose is going to be served to allow him to appear in the examination and to keep the result in the sealed cover. He has also drawn our attention to Clause 4 of the Debarment Policy of the Bank and contended that any employee who has been charge- sheeted or disciplinary action is contemplated against him for minor misconduct, he can be permitted provisionally to appear in the written test, interview etc. for promotion to higher cadre, subject to his being eligible otherwise and how his case will be dealt with has been narrated in the subsequent clauses. Therefore, for the major criminal misconduct which has been narrated in sub-clause (1) of Clause 2 of the policy, the respondent-petitioner was not even eligible to appear in the promotional examination. Learned counsel for the appellants has further argued that respondent-petitioner has not even challenged this policy, therefore, he is not entitled for any relief and no mandamus can be issued. Therefore, he prayed that the order passed by the learned Single Judge be set aside and the writ petition filed by the respondent-petitioner may kindly be dismissed. (7). Learned counsel for the respondent has supported the judgment of learned Single Judge and argued that although this policy was not challenged but it is a harsh policy which clearly debars a person to be eligible for promotion for a period not exceeding three years. Therefore, this policy is violative of principle of natural justice and good conscience and also violates Article 14 of the Constitution of India. Learned counsel for the respondent-petitioner has also argued that learned Single Judge has only allowed him to appear in the promotional examinations to be held in last week of Sept., 2002 or in future and also directed to keep his result in the sealed cover to be opened by the respondents after the enquiry is over and the respondents were kept free to proceed further according to result of the enquiry and it was specifically directed that this order would not come in their way in any manner. Therefore, he has argued that no interference is called for by this Court in the order passed by the learned Single Judge as no substantial relief has been granted to him. (8). We have considered the rival arguments made by the learned counsel for the parties. Learned counsel for the respondent has tried to make out a case before this Court that the Debarment Policy of the Bank is a harsh policy which debars a person to be eligible for promotion for a period not exceeding three years and, therefore, is violative of Article 14 of the Constitution of India as well as principles of natural justice. Learned counsel for the appellants has argued that this policy was not challenged in the writ petition and no material whatsoever has been placed on record by the respondent-petitioner as to how this policy is against the principles of natural justice. Therefore, at the appellate stage the argument made by the learned counsel for the respondent-petitioner regarding the Debarment Policy being violative of Article 14 of the Constitution of India as well as principles of natural justice may not be considered. Since, the respondent-petitioner neither raised this issue before the learned Single Judge nor he has pleaded that this policy is violative of Article 14 of the Constitution of India or is against the principles of natural justice nor any substantial material has been placed on record, therefore, it is difficult for us to decide the objections raised by the learned counsel for the respondent-petitioner at this appellate stage. Thus, we do not consider it appropriate to deal with this aspect of the matter at this appellate stage. The respondent-petitioner should have pleaded and argued this issue before the learned Single Judge. (9). We have gone through the Debarment Policy of the Bank (Annexure-R/6) which reads as under:- ``1. An employee could be debarred from promotion in two cases i.e. when disciplinary proceedings are in progress and after punishment is awarded to him. 2. When disciplinary proceedings are in progress, the following procedure will be followed :- (i) An employee against whom disciplinary action is contemplated for an offence amounting to fraud, misappropriation of money, forgery or any other act which prima facie amounts to criminal misconduct, shall be debarred from promotion for a period not exceeding 3 years, reckoned from the date such contemplation is advised to the employee in writing. In all other cases of disciplinary action, the bar will operate as from the date the employee is served with a charge-sheet. (ii) An employee shall not be eligible for any promotion during the period of his suspension, irrespective of the period involved. 3. In cases where punishment has been awarded, the policy will be as under : i) There shall be no bar on eligibility for promotion where an employee has been warned or censured or where an adverse remark has been entered in his service record. ii) Where an employee is reverted as a measure of disciplinary action, he will not be automatically eligible for promotion again, if it involves as out-of-cadre promotion, upon the expiry of the debarment period of 3 years. But each such case will be considered on its individual merits. The Circle Management may review such cases taking into account the gravity of his past misconduct and his subsequent work and conduct. He may, however, be considered for higher appointment within the cadre after one year of reversion. NOTE : Where the suspension period has been treated ``as such it should not be taken into account as service and not counted for seniority for promotion within the cadre after one year of reversion. iii) Where increment(s) of an employee(s) has/have been stopped as a measure of disciplinary action, he shall not be eligible for promotion till the period covered by such stoppage of increment(s) expires, notwithstanding whether the 3 year period passes in the meantime or not. Such an employee will not, however, be ineligible for promotion within his cadre involving an allowance-carrying post during the period the stoppage of increment operates. 4. Where an employee has been charge-sheeted or disciplinary action is contemplated against him for minor misconduct, he may be permitted provisionally to appear in the written test, interview etc., for promotion to higher cadre, subject to his being eligible otherwise. A case of this nature will be dealt with as under; i) ``If the employee is completely exonerated on the conclusion of disciplinary proceedings and it is found that he was successful in the test/interview, he will be promoted with retrospective effect along with other employees. ii) An employee who has been warned/censured on conclusion of disciplinary proceedings and is found suitable for promotion on the basis of test/interview, will be promoted with effect from a future date. ii) An employee who has been warned/censured on conclusion of disciplinary proceedings and is found suitable for promotion on the basis of test/interview, will be promoted with effect from a future date. The effect of punishment to such an employee would thus be loss of seniority vis-a-vis others, who appeared for the same test and got promoted earlier. Accordingly, the employee may be promoted with the batch promoted subsequent to the award of punishment to him, without having to appear again in promotion test. iii) In case of any other punishment imposed after conclusion of disciplinary proceedings, the result of the promotion test will be cancelled. The employee will have to appear afresh in the test after the debarment period is over. However, appearance in the test, result of which is not declared, will not be counted as a chance availed of. NOTE: An employee who is debarred from promotion is also debarred from officiating in that capacity. (10). The aforesaid Debarment Policy clearly states that an employee can be debarred from promotion in two cases i.e. when disciplinary proceedings are in progress and after punishment is awarded to him. When disciplinary proceedings are in progress for misconduct for an offence amounting to fraud, misappropriation of money, forgery or any other act which prima facie amounts to criminal misconduct, the employee shall be debarred from promotion for a period not exceeding 3 years, reckoned from the date such contemplation is advised to an employee in writing or in all other cases of disciplinary action, the bar will operate as from the date the employee is served with the charge-sheet. In cases, where the punishment has been awarded as per policy there shall be no bar on eligibility for promotion where an employee has been warned or censured or where an adverse remark has been entered in his service record but where an employee is reverted as a measure of disciplinary action, he will not be automatically eligible for promotion again, if it involves an out of cadre promotion, upon the expiry of the debarment period of 3 years. But each such case will be considered on its individual merits. The Circle Management will review such cases taking into account the gravity of his past misconduct and his subsequent work and conduct. He may, however, be considered for higher appointment within the cadre after one year of reversion. But each such case will be considered on its individual merits. The Circle Management will review such cases taking into account the gravity of his past misconduct and his subsequent work and conduct. He may, however, be considered for higher appointment within the cadre after one year of reversion. Clause 4 of the Debarment Policy speaks about appearance in the promotional examinations provisionally. It says that when an employee has been charge-sheeted or disciplinary action is contemplated against him for minor misconduct, he may be permitted provisionally to appear in the written test, interview etc. for promotion to higher cadre, subject to his being eligible otherwise. A case of this nature will be dealt with as per sub- clause (i) to (iii) of Clause 4 of the Debarment policy as cited above. (11). From perusal of Clause 4 of the Debarment Policy, it is clear that if an employee, who has been charge-sheeted or disciplinary action is contemplated against him for minor misconduct, he can be permitted provisionally to appear in the written test, interview etc. for promotion to the higher cadre. As regards the misconduct as mentioned in Clause 2 of the Debarment Policy is concerned, the employee is not even entitled to appear provisionally for a written test and interview etc. for promotion to the higher cadre. (12). We have gone through the memorandum (Annexure-5) as well as the letter dated 25.9.2001 (Annexure-7) issued by the Bank to the respondent-petitioner. From the perusal of the memorandum as well as letter, it is manifestly clear that enquiry against the respondent-petitioner was contemplated for the offence amounting to fraud, causing huge loss to the tune of Rs. 1,82,230/- to the Bank. It cannot be said to be a minor misconduct as enumerated in Clause 4 of the Debarment policy. Since enquiry contemplated against the respondent-petitioner was of gross-misconduct, therefore, as per the Debarment Policy he was not entitled to appear in the written test, interview etc. for promotion to the higher post. Therefore, we find force in the argument advanced by the learned counsel for the appellant. It appears that the learned Single Judge has not considered Clause 2 and Clause 4 of the Debarment Policy in true prospect and allowed the respondent- petitioner to appear in the promotional written examination with some directions mentioned in the judgment impugned. Therefore, we find force in the argument advanced by the learned counsel for the appellant. It appears that the learned Single Judge has not considered Clause 2 and Clause 4 of the Debarment Policy in true prospect and allowed the respondent- petitioner to appear in the promotional written examination with some directions mentioned in the judgment impugned. As per the Debarment Policy, since, enquiry was contemplated against the respondent-petitioner for the major misconduct, amounting to fraud, causing huge loss to the Bank, the appellant-respondents issued Annexure-5 and Annexure-7, which cannot be said to be illegal or against the Debarment Policy of the Bank. Therefore, no mandamus can be issued against the established policy by the Court. (13). Accordingly, the appeal is allowed and the judgment dated 27.9.2002 passed by the learned Single Judge is set aside. Consequently, the writ petition filed by the respondent- petitioner stands dismissed. The respondent-petitioner is not entitled for any relief. If the respondent-petitioner has appeared in the promotional examination in pursuance of the order of the learned Single Judge, his appearance in the promotional examination and result thereof shall not be considered by the appellants and the same shall be treated as cancelled.