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2016 DIGILAW 584 (GUJ)

State Bank of India (SBI) v. Arvind P. Jejurikar

2016-03-14

R.SUBHASH REDDY, V.M.PANCHOLI

body2016
JUDGMENT R. Subhash Reddy, C.J. 1. The Letters Patent Appeal under Clause 15 of the Letters Patent is filed by the original respondent aggrieved by the order dated 12.01.2016 passed the learned Single Judge in Special Civil Application No. 14783 of 2003 by which the learned Single Judge has allowed the petition. 2. The respondent herein had joined the services of appellant-Bank in Junior Management Grade Scale-I on 27.10.1975. In due course, the respondent herein-original petitioner had received his promotions and was promoted upto the rank of Senior Management Grade-V in which rank he was working as Assistant General Manager (D &RB) at the Head Office, Bhavnagar. He was entitled to further promotion to Top Executive Grade Scale-VI (TEGS-VI) upon completion of three years in the feeder cadre. The case of the respondent herein was considered for further promotion in the meeting of Departmental Promotion Committee (DPC) and his case was recommended in the month of September 2001, but orders were not issued and the results were kept in a sealed cover. Once again on 21.09.2002 the DPC meeting was convened and again the proceedings of the DPC were kept in sealed cover. 3. Complaining non-promotion to the post of Top Executive Grade Scale-VI by keeping proceedings of DPC in sealed cover though no disciplinary proceedings were initiated by issuing charge memo or charge sheet, the respondent had approached this Court by filing Special Civil Application No. 14783 of 2003. It was his say before the learned Single Judge that as on the date when DPC has recommended his case for promotion in the month of September 2001 and again in the month of September 2002, no disciplinary proceedings were initiated by issuing any charge sheet. As such there was no reason to keep his promotion in sealed cover. The respondent has relied on judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman, reported in A.I.R. 1991 SC 2010. The case of the appellant-Bank before the learned Single Judge was that as the competent disciplinary authority has taken decision on 29.03.2001 to initiate proceedings and subsequently different proceedings were initiated against the respondent, as such his promotion was kept in sealed cover, such procedure cannot be found fault with. 4. The case of the appellant-Bank before the learned Single Judge was that as the competent disciplinary authority has taken decision on 29.03.2001 to initiate proceedings and subsequently different proceedings were initiated against the respondent, as such his promotion was kept in sealed cover, such procedure cannot be found fault with. 4. The learned Single Judge has not accepted the defence of the appellant-Bank placing reliance of the decision of the Hon'ble Supreme Court in the matter of Union of India v. K.V. Jankiraman (supra) and has allowed the petition by recording a finding that the appellant-bank was clearly wrong in keeping the recommendations of the said two DPCs, denying promotion to him. The learned Single Judge directed the appellant-Bank to open sealed covers and to give effect of such recommendations, viz. if the respondent is found suitable for promotion, the appellant-Bank shall give effect to the same from the due date with all consequential benefits including that of difference in salary. 5. In this Appeal it is contended by the learned counsel appearing for the appellant-Bank, that the Disciplinary Committee has taken decision on 29.03.2001 to initiate disciplinary proceedings against the respondent herein. As such the appellants are well justified in not giving effect to the recommendations of the Departmental Promotion Committee. It is contended by the learned counsel that having regard to the decision of the Disciplinary Committee to initiate disciplinary proceedings, the said date can be taken to say that departmental proceedings were pending on the dates when sealed cover procedure was followed by not giving effect to the recommendations of the Departmental Promotion Committee. The learned counsel has placed reliance to the judgment of the Hon'ble Supreme Court in the case of Delhi Development Authority v. H.C. Khurana, reported in A.I.R. 1993 SC 1488. 6. Having regard to the submissions made by the learned counsel appearing for the appellants the only aspect which is required to be considered in this appeal is whether the appellants were justified in not giving effect to the recommendations of the Departmental Promotion Committee for the promotion of the respondent basing on the decision of the Disciplinary Committee to initiate disciplinary proceedings. The question, namely, when disciplinary proceedings are said to be initiated, is no more res integra in view of the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman (supra). The question, namely, when disciplinary proceedings are said to be initiated, is no more res integra in view of the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman (supra). In the said judgment, the Hon'ble Supreme Court has considered the question that while giving effect to promotion, when sealed cover procedure is to be adopted and further it was specifically answered on the question, namely, when disciplinary/criminal proceedings can be said to have commenced. In the said judgment it is clearly held that disciplinary proceedings are said to have commenced only after issuance of charge memo in disciplinary proceedings, and charge sheet in criminal proceedings. Relevant paras from the aforesaid judgment read as under: "6. On the first question, viz., as to when for the purposes of the sealed cover procedure the disciplinary/criminal proceedings can be said to have commenced, the Full Bench of the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge sheet in a criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the Tribunal on this point. The contention advanced by the learned counsel for the appellant-authorities that when there are serious allegations and it takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of administration to reward the employee with a promotion, increment etc. does not impress us. The acceptance of this contention would result in injustice to the employees in many-cases. As has been the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the issue of any charge-memo/charge sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. Many times they never result in the issue of any charge-memo/charge sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it should not take much time to collect the relevant evidence and finalize the charges. What is further, if the charges are that serious, the authorities have the power to suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are not without a remedy. It was then contended on behalf of the authorities that conclusions Nos. 1 and 4 of the Full Bench of the Tribunal are inconsistent with each other. Those conclusions are as follows: "(1) consideration for promotion, selection grade, crossing the efficiency bar or higher scale of pay cannot be withheld merely on the ground of pendency of a disciplinary or criminal proceedings against an official; (2) ... (3) ... (4) the sealed cover procedure can be resorted only after a charge memo is served on the concerned official or the charge sheet filed before the criminal court and not before;" There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. 7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January. Thus read, there is no inconsistency in the two conclusions. We, therefore, repel the challenge of the appellant-authorities to the said finding of the Full Bench of the Tribunal. 7. The Full Bench of the Tribunal, while considering the earlier Memorandum dated 30th January. 1982 has, among other things, held that the portion of paragraph 2 of the memorandum which says "but no arrears are allowed in respect of the period prior to the date of the actual promotion" is violative of Articles 14 and 16 of the Constitution because withholding of salary of the promotional post for the period during which the promotion has been withheld while giving other benefits, is discriminatory when compared with other employees who are not at the verge of promotion when the disciplinary proceedings were initiated against them. The Tribunal has, therefore, directed that on exoneration, full salary should be paid to such employee which he would have received on promotion if he had not been subjected to disciplinary proceedings. We are afraid that the Tribunal's reference to paragraph 2 of the Memorandum is incorrect. Paragraph 2 only recites the state of affairs as existed on January 30, 1982 and the portion of the Memorandum which deals with the relevant point is the last sentence of the first sub-paragraph after clause (iii) of paragraph 3 of the Memorandum which is reproduced above. That sentence reads as follows: "But no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion". This sentence is preceded by the observation that when the employee is completely exonerated on the conclusion of the disciplinary/court proceedings, that is, when no statutory penalty, including that of censure, is imposed, he is to be given a notional promotion from the date he would have been promoted as determined by the Departmental Promotion Committee. This direction in the Memorandum has also to be read along with the other direction which follows in the next sub-paragraph and which states that if it is found as a result of the proceedings that some blame attaches to the officer then the penalty of censure at least, should be imposed. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings. This direction is in supersession of the earlier instructions which provided that in a case where departmental disciplinary proceedings have been held, "warning" should not be issued as a result of such proceedings. There is no doubt that when an employee is completely exonerated and is not visited with the penalty even of censure indicating thereby that he was not blame worthy in the least, he should not be deprived of any benefits including the salary of the promotional post. It was urged on behalf of the appellant-authorities in all these cases that a person is not entitled to the salary of the post unless he assumes charge of the same. They relied on F.R. 17(1) of the Fundamental Rules and Supplementary Rules which read as follows: "F.R. 17(1) Subject to any exceptions specifically made in these rules and to the provision of sub-rule (2), an officer shall begin to draw the pay and allowances attached to his tenure of a post with effect from the date when he assumes the duties of that post, and shall cease to draw them as soon as he ceases to discharge those duties: Provided that an officer who is absent from duty without any authority shall not be entitled to any pay and allowances during the period of such absence." It was further contended on their behalf that the normal rule is "no work no pay". Hence a person cannot be allowed to draw the benefits of a post the duties of which he has not discharged. To allow him to do so is against the elementary rule that a person is to be paid only for the work he has done and not for the work he has not done. As against this, it was pointed out on behalf of the concerned employees, that on many occasions even frivolous proceedings are instituted at the instance of interested persons, sometimes with a specific object of denying the promotion due, and the employee concerned is made to suffer both mental agony and privations which are multiplied when he is also placed under suspension. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. We are not much impressed by the contentions advanced on behalf of the authorities. When, therefore, at the end of such sufferings, he comes out with a clean bill, he has to be restored to all the benefits from which he was kept away unjustly. We are not much impressed by the contentions advanced on behalf of the authorities. The normal rule of "no work no pay" is not applicable to cases such as the present one where the employee although he is willing to work is kept away from work by the authorities for no fault of his. This is not a case where the employee remains away from work for his own reasons, although the work is offered to him. It is for this reason that F.R. 17(1) will also be inapplicable to such cases. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardize public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz. "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum: "However, whether the officer concerned will be entitled to any arrears of pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so." To this extent we set aside the conclusion of the Tribunal on the said point." 7. We have perused the judgment in the case of Delhi Development Authority v. H.C. Khurana (supra) relied on by the learned counsel for the appellants. The ratio laid down by the Hon'ble Supreme Court in the aforesaid judgment would not render any assistance to accept the plea of the appellants in this case. In the aforesaid case, the Hon'ble Supreme Court has considered the delay on the part of the employer in serving charge memo, after its issuance. In the present case, it is not in dispute that on the date when the appellants have resorted to sealed cover procedure, there was no pendency of any disciplinary proceedings against the respondents. Mere decision taken by the disciplinary authority to initiate disciplinary proceedings cannot be equated to initiation of disciplinary proceedings. As there was no charge memo in disciplinary proceedings on the date of keeping result of the respondent for promotion in sealed cover, we are of the considered view that the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman (supra) will squarely apply to the facts of the case, in support of the case of the respondent. It is also relevant to notice, that the appellant-Bank itself had issued circular instructions on 08.08.1992, based on the judgment of the Hon'ble Supreme Court in the case of Union of India v. K.V. Jankiraman (supra) and the circular instructions to the relevant issue in question read as under: "3. Keeping in view the judgment of Supreme Court, it has been decided that the sealed cover procedure will henceforth be applicable to the following cases of officers in respect of promotion from JMGS I, MMGS II and III and SMGS IV to the next higher grade/scale. (i) officers against whom charge sheet has been issued in a disciplinary case and/or criminal prosecution has been launched in the Court of law. (ii) officers who have been placed under suspension." 8. In view of the said ratio decided by the Hon'ble Supreme Court having been circulated by the appellant-Bank itself among its officers, we do not find any merit so as to warrant interference with the order of the learned Single Judge. This Letters Patent Appeal is devoid of any merit. Hence it is dismissed. 9. As the LPA is dismissed, no order on the Civil Application. The Civil Application stands disposed of accordingly.