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2006 DIGILAW 2354 (PNJ)

Ajit Singh Cheema v. Punjab and Sind Bank

2006-05-26

AJAI LAMBA, S.S.NIJJAR

body2006
JUDGMENT AJAI LAMBA, J. 1. The petitioner was ignored for promotion. He has, therefore, filed the present writ petition. Before filing the writ petition, the petitioner has submitted a statutory appeal Annexure P-12 dated 22.11.2004. In the appeal, the petitioner has raised numerous issues which are factual as well as legal. The respondents have rejected the appeal submitted by the petitioner by order dated February 25, 2005 (Annexure P-14). Counsel for the petitioner submits that the order passed by the respondents is not only non-speaking but is against the spirit of the promotion policy made under Regulation 17 of the Punjab and Sind Bank (Officers) Service Regulation, 1982 (hereinafter referred to as ‘Regulation). Regulation 13 provides as under : “ APPELLATE PROCEDURE Any officer in JMGS-1, MMGS-II or MMGS-III who feels that his case for promotion has not been properly dealt with will have a right to appeal within a period of 60 days from the date on which the promotion was announced. The appeal would be submitted to AUTHORITY mentioned hereunder : FOR PROMOTIONS FROM AUTHORITY JMGS-l TO MMGS-II GENERAL MANAGER (PERSONNEL) MMGS-II TO MMGS-III EXECUTIVE DIRECTOR MMGS-III TO SMGS-IV CHAIRMAN & MANAGING DIRECTOR The said Authority shall consider the representation and review the earlier decision, if considered necessary. The decision in this regard shall be placed before the CMD for approval for promotion to MMGS-II, III & SMGS-IV. In case of officers seeking promotions from Grade Scale-IV onwards, there shall be no appeal against the decision of Departmental Promotion committee. However, an officer aggrieved by the decision of Departmental Promotion Committee may make a representation to the said committee within a period of three months from the date on which the promotion was announced. The Committee as soon as it may be and in any case not later than six months from the date of receipt of the representation will consider and review or modify its earlier decision, if considered necessary. The decision of the Committee shall be recorded in writing and will be placed before the Board of Directors for ratification before being implemented. “ 2. Mr. I.P.Singh Advocate, on the other hand, submits that the Regulation has been fully complied, as the appeal has been considered by the Appellate Authority by examining the entire service record of the petitioner. The decision has been placed before the CMD which has been communicated to the petitioner. “ 2. Mr. I.P.Singh Advocate, on the other hand, submits that the Regulation has been fully complied, as the appeal has been considered by the Appellate Authority by examining the entire service record of the petitioner. The decision has been placed before the CMD which has been communicated to the petitioner. Learned counsel further submits that the reasons for suppression of the petitioner have been set out in detail in the written statement. The petitioner has not been selected due to the poor performance at the interview viz-a-viz other candidates for the promotion from SMGS-III to SMGS-IV.I The only right of the petitioner was to be considered, no writ or mandamus can be issued directing the respondents Bank to issue the order of promotion. 3. We have considered the submissions made by the learned counsel for the parties. 4. We refrain from expressing any opinion on the validity or otherwise of the Rule under which the appeal of the Officer is to be considered. A bare perusal of the Regulation shows that it makes no provision for hearing a Senior Officer in an Appeal against an order by which the claim of the officer for promotion to one of the top- positions in the Bank has been rejected. In such circumstances, in our opinion, it becomes incumbent upon the respondents to pass a detailed speaking order informing the Officer of the reasons which Weighed with the authority for not accepting his appeal for modification/ rectification of the earlier order. The importance of giving an opportunity of hearing to the concerned Officer in appeal by the departmental authority has been considered by a Full Bench of this Court in Ram Niwas Bansal vs. State of Bank of Patiala 1998(4) SLR 711. The importance of giving an opportunity of hearing to the concerned Officer in appeal by the departmental authority has been considered by a Full Bench of this Court in Ram Niwas Bansal vs. State of Bank of Patiala 1998(4) SLR 711. The Court considered the following question: “Whether, in absence of a specific provision in Regulation 70 of the State Bank of Patiala (Officers) Service Regulation, 1979, granting right of personal hearing to a delinquent officer before the Appellate Authority in departmental proceedings, the Court would read into such rule and provide right of such hearing on the application of maxim audi alteram partem, is the precise question that falls for consideration of the Full Bench in this writ petition.” After considering the relevant case law, the Full Bench observed as follows : “41 To read principles of natural justice into such statutory provisions is the basic need of the day because the principles of natural justice are primarily intended to promote justice and prevent injustice in any administrative or quasi- judicial decisions. Balance of equities and test of prejudice both tilt in favour of an employee and such statutory provisions must be read and construed in comity to the basic rule of law. “ 44. In the case of S.L.Loona v. The Punjab National Bank and another, 1992(2) SLR 250, a Division Bench of this Court while interpreting somewhat similar rule (Regulation 17) of the Punjab National Bank Officers Employees (Discipline and Appeal) Regulations, 1977 accepted that the appellate authority was obliged to grant hearing to the delinquent officer. Similar view was taken in State Bank of Patiala v. Ram Gopal Gupta and others, 1998(1) 1.L.R.(Pb.& Hr.) 219. The need for reading the maxim of Audi Alteram Partem into such provisions was upheld in another judgment of this Court in the case of S.C.Girotra v. United Commercial Bank, (1989-1) 95 P.L.R. 381 : [1989 (1) SLR 521 (Pb. & Hry.)] as well as by a Division Bench of Himachal Pradesh High Court in a very recently pronounced judgment titled as S.L.Thakur v. Punjab National Bank and others, 1998(1) SLR 271. 46. For the reasons afore-stated we are of the considered view that the law laid down by the Hon’ble Supreme Court of India in the case of Ram Chander (supra) still holds the field. 46. For the reasons afore-stated we are of the considered view that the law laid down by the Hon’ble Supreme Court of India in the case of Ram Chander (supra) still holds the field. Further, we are of the view that on the language of Regulation 70, as above noticed, the delinquent officer would have a right to ask for the hearing at the appellate stage. Such right accrues to the applicant from the principles of natural justice. Non-adherence to the maxim of audi alteram partem where it is deemed by the delinquent officer would per se be prejudicial to the case of the delinquent officer and would affect the order of the appellate authority exercising such wide powers and discretion adversely.” 5. The aforesaid observations of the Full Bench have been followed by a Division Bench of this court in the case of Gulab Singh v. The Maharishi Dayanand University & Ors. 2004(6) SLR 295. The Division Bench noticed the arguments of the learned counsel appearing for the University and observed as follows : “ Mr. Balram Gupta, learned Sr. Advocate appearing for the respondents has submitted that the authorities have passed well reasoned speaking orders at every stage. Therefore, no legal right of the petitioner has been violated. Learned Sr. Counsel has further submitted that at the appellate stage, it was not necessary for the petitioner to be granted an opportunity of personal hearing. He was given adequate opportunity of hearing by the disciplinary authority. The petitioner could not have added anything new at the appellate stage. Therefore, it would have been an exercise in futility for the appellate authority to grant an opportunity of personal hearing to the petitioner. The Chancellor acts under Section 9(14) of Maharshi Dayanand University Act (hereinafter referred to as “the Act”), as the appellate authority against the orders passed by the Executive Council or the Vice-Chancellor, in respect of any disciplinary action taken against any employee. The aforesaid Section does not specifically provide for the grant of an opportunity of hearing to the aggrieved employee. For this added reason also, it was not necessary to grant any opportunity of hearing to the petitioner. In support of the submissions, learned Sr. The aforesaid Section does not specifically provide for the grant of an opportunity of hearing to the aggrieved employee. For this added reason also, it was not necessary to grant any opportunity of hearing to the petitioner. In support of the submissions, learned Sr. Counsel relies on the judgments rendered in F.N.Roy v. Collector or customs, Calcutta and others, AIR 1957 S.C. 648 (para 11), Union of India v. Jyoti prakash Mitter, AIR 1971 S.C. 1093 (para 25) : [1971 (2) S.L.R. 203 (SC)], State Bank of Patiala v. Mahendra Kumar Singhal, 1955(5) SLR 4 (para 3) and Union of India and Anr. v. M/s Jesus Sales Corporation, JT 1996(3) S.C. 597. Section 9(14) of the Act is as follows : “9(14) : Any employee of the University who is aggrieved by the decision of the Executive Councilor the Vice- Chancellor in respect of any disciplinary action taken against him, may address a memorial to the Chancellor in such manner as may be prescribed by statutes and the decision of the Chancellor shall be final.” “ A perusal of the aforesaid Section shows that no specific procedure has been prescribed for exercise of the appellate jurisdiction by the Chancellor of the University. In such circumstances, undoubtedly, the Chancellor would have to adopt a reasonable procedure, which would ensure that the appellant is given a reasonable opportunity to present his case. The procedure shall also have to ensure that it complies with the hallowed principle that justice must not only be done, but must manifestly be seen to be done. The distinction between justice being done and being seen to be done has been eloquently set out in many cases. The significance of this maxim was summed up by Lord Widgery C.J. in the case of R. v. Home Secretary, EX.P.Hosenball, (1977) 1 WLR 766, 722, as “the principles of natural justice are those fundamental rules, the breach of which will prevent justice from being seen to be done”. In the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 : [1967 SLR 465 (SC)], it has been clearly held by the Supreme Court that “even an administrative order which involves civil consequences... must be made consistently with the rules of natural justice”. In the case of State of Orissa v. Dr. (Miss) Binapani Dei, AIR 1967 SC 1269 : [1967 SLR 465 (SC)], it has been clearly held by the Supreme Court that “even an administrative order which involves civil consequences... must be made consistently with the rules of natural justice”. The question as to what would constitute civil consequences was answered by the Supreme Court in the case of Mohinder Singh Gill v. The Chief Election. Commissioner, New Delhi, AIR 1978 SC 851. Krishna lyer,J., speaking for the Constitution Bench observed as follows : “But what is a civil consequence, let us ask ourselves, by passing verbal booby-traps? “Civil Consequence” undoubtedly covers infraction of not merely property or personal rights but of civil liberties, material deprivations and non- pecuniary damages. In its comprehensive connotation, everything that affects a citizen in his civil life inflicts a civil consequence.” In the case of Schmidt v. Secretary of State for Home Affairs,(1969) 2 Ch D 149, Lord Denning M.R. Observed as under :- “The speeches in Ridge v. Baldwin, (1964) AC 40, show that an administrative body may, in a proper case, be bound to give a person who is affected by their decision an opportunity of making representations. It all depends on whether he has some right or interest or, I would add, some legitimate expectation, of which it would not be fair to deprive him.” We are unable to accept the submission of Mr. Gupta that it was not necessary for the appellate authority to hear the petitioner as he could have said nothing new. This very question has been considered by the Supreme Court in the case of S.L.Kapoor v. Jagmohan and others, AIR 1981 Supreme Court 136. In the aforesaid case, Chinnappa Reddy, J., speaking for the Supreme Court observed as under : “17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non- observance of natural justice but because Courts do not issue futile writs. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non- observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however, slightly, and penalties are discretionary.” In Ridge v. Baldwin, (1964) AC 40, the same argument had been raised before the House of Lords that even if the appellant had been heard by the watch committee, nothing that he could have said could have made any difference. The argument was rejected. Similar argument was raised in the case of John. Rees, (1970) 1 Ch 345. Megarry; J. observed as follows : “ It may be that there are some who would decry the importance which the courts attach to the observance of the rules of natural justice. ‘When something is obvious’, they may say, why force everybody to go through the tiresome waste of time involved in framing charges and giving an opportunity to be heard? The result is obvious from the start’. Those who take this view do not think, do themselves justice. As everybody who has anything to do with the law well knows the path of the law is strewn with examples of open and shut cases which, somehow, were not of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change. Nor are those with any knowledge of human nature who pause to think for moment likely to underestimate (sic. - underestimate) the feelings of resentment of those who find that a decision against them has been made without their being afforded any opportunity to influence the course of events. “ 6. These well settled principles have been re-stated by the Supreme Court in the case of Canara Bank vs.Shri Debasis Das, 2003(3) SLR 64 (SC). 7. In view of the settled position of law, we are of the considered opinion that the writ petition deserves to be allowed. We, therefore, allow the writ petition, quashing the impugned order, Annexure P-14 dated 25.2.2005. 7. In view of the settled position of law, we are of the considered opinion that the writ petition deserves to be allowed. We, therefore, allow the writ petition, quashing the impugned order, Annexure P-14 dated 25.2.2005. The respondents are directed to pass a fresh order in accordance with law within a period of two months, of the receipt of the certified copy of this order. No costs.