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2012 DIGILAW 556 (PAT)

Sanjay Prasad v. Bank of India

2012-04-03

AJAY KUMAR TRIPATHI

body2012
ORAL ORDER Both the writ applications arise from a common bundle of facts. Therefore, they have been heard together and are being disposed off together by a common order. 2. The origin to the dispute relates to examination conducted by the Bank for consideration of the right of these petitioners to be promoted to the next higher scale. Since the Bank has no mechanism to hold such examination and the examination is outsourced to what is known as Institute of Banking Personnel Selection. The examination was conducted on the basis of paper which was set by them under the supervision of the Institute as well as the Personnel from the concerned Bank. The Court is made to believe that the Institute of Banking Personnel Selection, also known as IBPS, is a nodal agency of which most of the Indian Banks rely on for conducting such examinations. 3. In the present case, the examination was held in the year 2005. Answer sheets were evaluated and in a confidential communication issued by IBPS to respondent Bank, they opined that many a candidates including the present petitioners had resorted to copying. The said communication became the basis for issuance of a memo of charge to which petitioners responded denying the allegation but the disciplinary authority issued penalty of withholding promotion for five years. 4. When the order of punishment was challenged in a writ application earlier, petitioners were relegated to the appellate authority in view of provision of appeal. The appellate authority considered the appeal, took an indulgent view in the sense that the petitioners have not been totally absolved of their guilt but the period of debarment from promotion has been reduced to three years. In both the writs it is the punishment orders passed by the appellate authority which are under challenge. 5. Counsels representing the petitioners submit that no proper procedure was adopted before the order of punishment came to be passed. There was a memo of charge issued upon the petitioners with some extracts of the parameters based on which the IBPS came to a considered opinion of mass copying and that was all with regard to the investigation or enquiry in relation to the charge. There was a memo of charge issued upon the petitioners with some extracts of the parameters based on which the IBPS came to a considered opinion of mass copying and that was all with regard to the investigation or enquiry in relation to the charge. According to the petitioners, the allegation and the charges are rather serious as it could have had serious civil consequences upon them which have come to visit them as they were alleged to have violated Regulation 3(1) and 24 of the Bank of India Officer Employees’ (Conduct) Regulations, 1976. 6. One thing evident from the pleadings and materials on record is that the punishment order passed by the disciplinary authority as well as the appellate authority is based on the report of the IBPS made to the Bank, which was confidential in nature. The opinion expressed by IBPS that there was copying resorted to was accepted as a gospel truth on behalf of the Bank and without actual investigation into the allegation and even without considering the explanations offered by the charged officers. The order of punishment came to visit them. Petitioners were not given any opportunity of hearing nor any formal charges came to be investigated by tendering of evidence either on behalf of the Management or the petitioners being given an opportunity to produce evidence in support thereof. 7. One significant aspect which has emerged in the dispute is that there was no complaint or report at any point of time from the centre, the invigilators or any senior official of the Bank with regard to any wrong being done in the examination conducted. The apprehension or opinion expressed by IBPS is based on their analysis of the answer sheets when it was processed by them at their level. 8. The Court has gone through the parameters based on which such findings have been recorded by IBPS. It is based on mathematical formulation of probability which is a scientific basis and it is not based on mumbo jumbo which the counsels for the petitioners tried to convey to the Court. The loop-holes they tried to dig into the procedure adopted by IBPS has not impressed this Court because Court has gone through the explanation which has been offered or the parameters which has been laid down by IBPS. 9. The loop-holes they tried to dig into the procedure adopted by IBPS has not impressed this Court because Court has gone through the explanation which has been offered or the parameters which has been laid down by IBPS. 9. Learned counsel representing the Bank submits that they have full faith in the Institute with regard to the conduct of examination. The institute has its own reputation and since they are the authority to conduct such examination and also provide results, they have to go by the wisdom expressed by them with regard to the examination, so held. Since inputs were provided to them and the data which has been analyzed by them was pointer to the fact that there was expected coping amongst the candidates who sat in the examination, therefore, to maintain the purity of the examination and to ensure honesty in the conduct of such officers, disciplinary action was required to be taken and it has been taken. 10. In the supplementary counter affidavit now the detailed communication made by IBPS has been annexed, based on which the decision to impose punishment upon the petitioners was taken. 11. After having heard rival contention on behalf of the parties as also having perused the Regulation, this Court is of the considered opinion that imposition of punishment of withholding promotion for a period of five years and subsequently reduced to three years, has been held to be a minor punishment by the Bank and therefore, according to them, there was no requirement for holding a detailed departmental enquiry. This Court has reservation on interpretation which can be given to the definition of a minor penalty as per Regulation 4C, to encompass of withholding every promotion, whatever be their duration, cannot be said to be a minor punishment per say. Withholding of promotion for a long period of time itself has a cascading effect on future prospects and career of an employee which can have serious consequences for him for the rest of his life he remains in service. Withholding of promotion for a shorter period of time may in certain circumstances be treated to be a minor punishment but since in the present case the withholding of promotion, initially was for five years and then curtailed to three years, it surely has a serious civil consequences upon the petitioners. 12. Withholding of promotion for a shorter period of time may in certain circumstances be treated to be a minor punishment but since in the present case the withholding of promotion, initially was for five years and then curtailed to three years, it surely has a serious civil consequences upon the petitioners. 12. In the opinion of this Court, this was not a matter where the punishment ought to have been imposed on the basis of a show cause and materials which were not even furnished to the petitioners and used behind their back. The petitioners were entitled to at least to have a look the basis or the materials which is now sought to be produced by the bank in the supplementary affidavit at the time when the matter was being looked into by the disciplinary authority or even by the appellate authority subsequently. Since the procedure adopted in the present case does not satisfy the parameters or the ambit of an adjudication based on rule of law by giving free and fair opportunity to these petitioners, the Court is constrained to hold that the Bank has adopted a slipshod procedure to impose punishment upon the petitioners without holding proper enquiry into the matter. 13. The Court is not in a position to brush aside the findings given by the IBPS and the analysis which they have made from the answer sheets. Therefore, the Court will not come in the way if the Bank still wants to pursue the matter further but the orders of punishment surely are required to be interfered with and both the orders passed by the disciplinary authority as well as the appellate authority, contained in Annexure-7 and 13 in CWJC No. 6185 of 2008 and Anneuxre-14 and 21 series in CWJC No. 12112 of 2008, are hereby quashed. It is left to the wisdom of the Bank now whether they would like the matter to rest or get on with the issue to pin down the petitioners for their indiscretion, if there was one. 14. It is made clear that since the writ applications now stand finally decided, the withholding of the results in a sealed cover resorted to by the Bank will now be opened and it is for the Bank to decide as to what benefit petitioners can derive from the opening of the sealed cover. 15. Both the writ applications are allowed.