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2018 DIGILAW 861 (ORI)

Suresh Chandra Dash v. State Bank of India

2018-12-21

B.R.SARANGI

body2018
JUDGMENT Dr. B.R. SARANGI, J. - The petitioner, who was working as Manager of State Bank of India, has filed this application seeking direction to the opposite parties to give him promotion to Senior Manager Grade Scale (SMGS)-IV w.e.f. 01.11.1992 by opening the sealed cover decision of the promoting authority, in view of disposal of the disciplinary proceeding vide Annexure-3 series, and further seeks for direction to give consequential financial and service benefits, as due and admissible to him in accordance with law. 2. The factual matrix of the case, in hand, is that the petitioner initially joined in the State Bank of India in a Clerical Grade on 01.07.1969 and thereafter he was promoted to Officer Grade on 01.10.1978. As per the bank’s policy, for promotion of officers from Scale-I to Scale-II, a test was conducted for the year 1986 among more than 700 candidates. The petitioner topped the list of successful candidates and in the viva-voce though he was equally good, without assigning any reason and in utter violation of rules, regulations and directives of the Hon’ble Supreme Court and High Court, the promotion order of the petitioner was kept under sealed cover. Due to intervention of the Officers’ Association, the sealed cover was opened on 02.07.1990 and the petitioner was promoted to MMGS w.e.f. 01.08.1986. But on 01.08.1988, while considering promotion to MMGS Grade-III, the case of the petitioner was ignored on some plea or other, whereas other eligible officials were promoted. Subsequently, promotion to MMGS Grade-III was given to the petitioner w.e.f. 01.08.1989 instead of 01.08.1988. Such order of promotion was modified on 14.02.1994 giving effect from 01.08.1988. Due to such arbitrary action of the authority concerned, the petitioner was deprived of getting his promotion in time vis-à-vis his contemporaries. 2.1 The petitioner became eligible for promotion to SMGS w.e.f. 01.11.1992 on completion of four years of service in MMGS Grade-III w.e.f. 01.08.1988. But he was deprived of due to pendency of disciplinary proceeding, which was initiated against him on 17.02.1992 on some allegation of misconduct relating to the year 1983-84. However, the petitioner’s case for promotion was considered to SMGS-IV w.e.f 01.11.1992, but the same was kept in sealed cover pending disposal of the disciplinary proceeding dated 17.02.1992. The petitioner was also found suitable for promotion to SMGS-IV w.e.f. 01.11.1993 and 01.11.1994 and was in the zone of consideration. However, the petitioner’s case for promotion was considered to SMGS-IV w.e.f 01.11.1992, but the same was kept in sealed cover pending disposal of the disciplinary proceeding dated 17.02.1992. The petitioner was also found suitable for promotion to SMGS-IV w.e.f. 01.11.1993 and 01.11.1994 and was in the zone of consideration. Consequentially, he was called for interview, but the findings of the promoting authority were kept under sealed cover, along with the assessment of 01.11.1992, pending disposal of enquiry. In the meantime, the departmental enquiry, vide H.O. D.A.C. No. 14/929 dated 17.02.1992, ended with punishment of ‘censure’. But in considering the appeal of the petitioner, the appellate authority was pleased to pass an order on 02.03.1995 rescinding the penalty of ‘censure’ imposed upon him, which was communicated to the petitioner on 15.03.1995. Therefore, as a necessary corollary, the decision of the prompting authority, which was kept in a sealed cover w.e.f. 01.11.1992, should have been opened and benefit should have been extended to the petitioner. But reasons best known to the authorities, the same was not opened and promotion to the SMGS-IV from 01.11.1993 and 01.11.1994 was also kept in a sealed cover, which pertains to disciplinary proceeding vide H.O/D.P.D. No.17/556 dated 03.09.1994. Finally, the said disciplinary proceeding ended with the punishment of ‘censure’, which was confirmed by the appellate authority. Against that order, the petitioner preferred review, but by the time the writ application was filed, the petition for review was still pending with the authority concerned. Therefore, the disciplinary proceeding, vide H.O. D.A.C. No. 14/929 dated 17.02.1992, even though was concluded, the decision of the promoting authority was kept in sealed cover from 01.11.1992. The same should have been opened and the petitioner should have been extended with the benefit as due and admissible to him. Since no action was taken, hence this application. 3. Mr. C.A. Rao, learned Senior Counsel appearing along with Mr. S.K. Behera, learned counsel for the petitioner contended that non-opening of the sealed cover, pursuant to closure of disciplinary proceeding No. H.O. D.A.C. No. 14/929 dated 17.02.1992, which was kept by the promoting authority from 01.11.1992, is arbitrary, unreasonable, contrary to the provisions of law. 3. Mr. C.A. Rao, learned Senior Counsel appearing along with Mr. S.K. Behera, learned counsel for the petitioner contended that non-opening of the sealed cover, pursuant to closure of disciplinary proceeding No. H.O. D.A.C. No. 14/929 dated 17.02.1992, which was kept by the promoting authority from 01.11.1992, is arbitrary, unreasonable, contrary to the provisions of law. Merely because of pendency of subsequent proceeding, which was initiated against the petitioner for some purpose, and for which the petitioner’s promotion was kept in a sealed cover, will not stand on the way of the authority to open the sealed cover of the order dated 01.11.1992. To substantiate his contention, he has relied upon the judgment of the apex Court in Delhi Jal Board v. Mahindar Singh, AIR 2000 SC 2767 . 4. Mr. P.V. Balakrishna, learned counsel for opposite parties- Bank, referring to the pleadings made in paragraph-11 of the counter affidavit, contended that as per the bank’s circular and guidelines governing the field, if a departmental proceeding ended with minor penalty, the decision of the promoting authority is not given effect to and accordingly, petitioner’s promotion to SMGS-IV with effect from 01.11.1992 could not operate. It is further contended that with regard to the petitioner’s promotion to SMGS-IV with effect from 01.11.1993 and 01.11.1994, which were under the sealed cover, were opened and it was found that the petitioner was not suitable for promotion. Therefore, the benefit sought for cannot be admissible to the petitioner and as such, it is contended that the writ petition should be dismissed. 5. This Court heard Mr. C.A. Rao, learned Senior Counsel appearing along with Mr.S.K. Behera, learned counsel for the petitioner and Mr. P.V. Balakrishna, learned counsel for opposite parties- Bank. Pleadings having been exchanged, with the consent of learned counsel for the parties, this writ petition is being disposed of finally at the stage of admission. 6. The facts delineated above are undisputed. As indicated above, the petitioner was due for promotion to SMGS-IV w.e.f. 01.11.1992. He was called upon to participate in the interview and his case was considered. But the outcome of that interview was kept in a sealed cover pending finalization of the disciplinary proceeding i.e. H.O.D.A.C. No. 14/929 dated 17.02.1992. Although the disciplinary authority imposed penalty of ‘censure” but the appellate authority subsequently exonerated the petitioner of the same. He was called upon to participate in the interview and his case was considered. But the outcome of that interview was kept in a sealed cover pending finalization of the disciplinary proceeding i.e. H.O.D.A.C. No. 14/929 dated 17.02.1992. Although the disciplinary authority imposed penalty of ‘censure” but the appellate authority subsequently exonerated the petitioner of the same. Therefore, the authorities could have opened the sealed cover and if the petitioner was found suitable, could have been given benefits of promotion. But as a matter of fact the sealed cover was not opened because of the pendency of the subsequent disciplinary proceeding initiated against the petitioner vide HO/DPD No. 17/556 dated 03.09.1994. Subsequent pendency of any proceeding cannot have any bearing with regard to the opening of sealed cover which relates to the earlier disciplinary proceeding i.e. H.O. D.A.C. No. 14/929 dated 17.02.1992. Needless to say that pursuant to the proceeding, i.e., H.O. D.A.C. No. 14/929 dated 17.02.1992 though the disciplinary authority imposed punishment of “censure”, but subsequently in appeal the appellate authority rescinded the penalty of ‘censure’ imposed on the petitioner, vide order dated 02.07.1995, which was communicated to the petitioner vide H.O. D.P.D. No. 17/1246 dated 15.03.1995. 7. The petitioner specifically pleaded in paragraphs- 9 to 11 of the writ petition, which read thus:- ”9. That, the petitioner became eligible for promotion to Senior Management Grade Scale w.e.f. 1.11.92 i.e. on completion of 4 years service in M.M.G.S. III w.e.f. 1.8.88. But unfortunately in the meantime in order to deprive the petitioner from his legitimate promotion, a disciplinary proceeding was initiated vide HO.O. D.A.C. No. 14/929 dt. 17.2.92 on some alleged misconduct relating to the year, 1983- 84. The true copy of the letter dt. 26.2.92 in forwarding the Disciplinary proceeding charges is annexed as Annexure-3 (Series). Thereafter the case of the petitioner was considered for promotion to S.M.G.S. IV w.e.f. 1.11.92 under the sealed cover procedure and the assessment of the promoting Authority was kept under sealed cover in view of the pendency of Disciplinary proceeding vide H.O. D.A.C. 14/929 dt. 17.2.92. The true copy of the communication dt. 1.11.92 to that effect is annexed hereto as Annexure-4. 10. That the petitioner was also found suitable for promotion to S.M.G.S. IV w.e.f. 01.11.1993 and 01.11.1994 and was in the zone of consideration. 17.2.92. The true copy of the communication dt. 1.11.92 to that effect is annexed hereto as Annexure-4. 10. That the petitioner was also found suitable for promotion to S.M.G.S. IV w.e.f. 01.11.1993 and 01.11.1994 and was in the zone of consideration. Accordingly he was called for interview, but the findings of the promoting Authority were kept under Sealed cover long with the assessment of 01.11.1992 on the alibi of a pending disciplinary inquiry by letter dt. 28.11.95 and the same is annexed herewith as Annexure-4(series). 11. That, it is humbly submitted here in the meantime the departmental inquiry initiated vide H.O. D.A.C. 14/929 dt. 17.2.92 ended with a punishment of “CESURE”. But subsequently in considering the appeal of the petitioner, the Appellate Authority was pleased to pass an order on 2.3.95 resending the penalty of ‘CENSURE’ imposed upon him. The said appellate order was communicated to the petitioner vide H.O./D.P.D. 17/1246 dt. 15.3.95. The true copy of the forwarding letter dt. 15.3.95 along with the order of the Appellate Authority dt. 2.3.95 are annexed hereto as Annexure-5 (Series)” These pleadings of the petitioner have been duly admitted by the opposite parties bank in the counter affidavit in paragraph 8, which reads thus:- “8. That in response to para-9, 10 & 11 of the writ petition, it is submitted that the petitioner was eligible for promotion to SMGS-IV w.e.f. 1.11.1992 and accordingly he was also called for interview. As an enquiry relating to his irregular sanction and follow up of advances at Nowrangpur Branch of the Opp. Parties, Bank was pending against him vide charge sheet dated 26.2.1992, his case was kept in sealed cover as per Bank’s procedure and guidelines. It may be noted that as per the Bank’s guidelines, officers, who are otherwise eligible but against whom Disciplinary Action is pending or is contemplated at the time of considering an officer for further promotion, the findings of the promoting authority has to be kept in sealed cover and decision to open the sealed cover could be taken only after the conclusion of the disciplinary proceedings. In this connection, the relevant passage of the Corporate Center letter No. ADM: CM: 737A dated 18.2.1991 of the Bank (Annexure-“A”) are as under : “Where the departmental proceedings have ended with the imposition of a minor penalty viz. In this connection, the relevant passage of the Corporate Center letter No. ADM: CM: 737A dated 18.2.1991 of the Bank (Annexure-“A”) are as under : “Where the departmental proceedings have ended with the imposition of a minor penalty viz. censure, recovery of pecuniary loss to the Bank, withholding of increments of pay or withholding of promotion, the decision of the promoting Authority in favour of the employee, kept in the sealed cover is not to be given effect to. // XXXXXX / / In case of the imposition of minor penalty of censure, the first sealed cover is not given effect to but subsequent sealed covers, if any, are opened in chronological order and the findings of the Promotion Authority acted upon.” In this connection, as stated herein above, the Disciplinary Authority vide his order dated 23.2.1994 imposed a penalty of “Censure” in the enquiry initiated agianst the petitioner vide the charge sheet dated 26.2.1992. Therefore, in conformity with the Bank’s guidelines and Circulars relating to sealed cover procedure the decision of the promoting authority kept in the sealed cover was not given effect to. However, since in the mean time another disciplinary proceeding case had already been initiated, the sealed cover of 1992 regarding the promotion of the petitioner was not opened. Subsequently, the petitioner filed his appeal challenging the said punishment. The Appellate Authority rescinded the said penalty of Censure and administratively warned him vide his order dated 2.3.1995” In paragraph 9 of the counter affidavit, it has also been admitted that the result of promotion to SMGS-IV with effect from 01.11.199, which was kept in sealed cover, was not given effect to. The relevant part of paragraph-9 is quoted below:- “9. That in response to Para-12 of the writ petition, it is once again reiterated that as the penalty of Censure was imposed on the petitioner by the Disciplinary Authority vide his order dated 23.2.1994, his result of promotion to SMGS-IV with effect from 1.11.1992 kept under Sealed Cover was not given effect to. However, by the time the punishment of Censure was rescinded by the Appellate Authority vide his order dated 2.3.1995, the Disciplinary Authority vide another Charge sheet dated 3.9.1994 initiated another Departmental proceedings against the petitioner for his dereliction of duties amounting to gross misconduct as he had passed for payment of one forged Govt. Bill of Rs. 98,000/-. However, by the time the punishment of Censure was rescinded by the Appellate Authority vide his order dated 2.3.1995, the Disciplinary Authority vide another Charge sheet dated 3.9.1994 initiated another Departmental proceedings against the petitioner for his dereliction of duties amounting to gross misconduct as he had passed for payment of one forged Govt. Bill of Rs. 98,000/-. It is further submitted that by the time, the Appellate Authority has rescinded the penalty of censure another departmental proceedings had already begun for which his result of promotion was kept in sealed cover. Therefore, the allegation of harassment is not true and hereby denied.” 8. Therefore, on the pleadings available on record, it is the admitted that the result of promotion to the post of SMGS-IV with effect from 01.11.1992, which was kept in sealed cover, was not given effect to because of subsequent pendency of the disciplinary proceeding against the petitioner, for which reliance has been placed on the pleadings made in paragraph-11 of the counter affidavit by the learned counsel for the opposite parties. But that by itself does not disclose the fact, that the punishment imposed by the disciplinary authority in the proceeding which was initiated against the petitioner vide H.O. D.A.C. No. 14/929 dated 17.02.1992, was rescinded by the appellate authority, has not been taken note of. Paragraph 11 of the counter affidavit reads thus:- “11. That in response to Para-14 and 15 of the writ petition, it is once again submitted that as per the Bank’s Circulars and guidelines, a departmental proceedings ending with a minor penalty the decision of the promoting authority is not given effect to. Accordingly, the petitioner’s promotion to SMGS-IV with effect from 1.11.1992 could not operate. As regards the petitioner’s promotion to SMGS-IV with effect from 1.11.1993 and 1.11.1994 which were under the sealed cover were opened and it was found that the petitioners was not suitable for promotion” 9. It may be that the results of the departmental promotion committee held on 01.11.1993 and 01.11.1994 for promotion to SMGS-IV, which were kept under sealed cover, were opened and the petitioner was not found suitable for promotion. But so far as proceeding in H.O. D.A.C. No.14/929 dated 17.02.1992 is concerned, promotion of the petitioner to SMGS-IV with effect from 01.11.1992, which was kept in sealed cover, was not opened. But so far as proceeding in H.O. D.A.C. No.14/929 dated 17.02.1992 is concerned, promotion of the petitioner to SMGS-IV with effect from 01.11.1992, which was kept in sealed cover, was not opened. But that itself was due to pendency of the subsequent disciplinary proceeding, which is not a bar to open the sealed cover, has already been ended by rescinding the minor penalty imposed by the disciplinary authority. 10. In Delhi Jal Board (supra), the apex Court, taking into consideration the similar fact, in paragraph 5 of the judgment held as follows:- “5. The right to be considered by the Departmental Promotion Committee is a fundamental right guaranteed under Art. 16 of the Constitution of India, provided a person is eligible and is in the zone of consideration. The sealed cover procedure permits the question of his promotion to be kept in abeyance till the result of any pending disciplinary inquiry. But the findings of the disciplinary enquiry exonerating the officer would have to be given effect to as they obviously relate back to the date on which the charges are framed. If the disciplinary inquiry ended in his favour, it is as if the officer had not been subjected to any disciplinary enquiry. The sealed cover procedure was envisaged under the rules to give benefit of any assessment made by the Departmental Promotion Committee in favour of such an officer, if he had been found fit for promotion and if he was later exonerated in the disciplinary inquiry which was pending at the time when the DPC met. The mere fact that by the time the disciplinary proceedings in the first inquiry ended in his favour and by the time the sealed cover was opened to give effect to it, another departmental enquiry was started by the Department, would not, in our view, come in the way of giving him the benefit of the assessment by the first Departmental Promotion Committee in his favour in the anterior selection. There is, therefore, no question of referring the matter to a larger Bench.” In view of the law laid down by the apex Court, as mentioned supra, though by the time the disciplinary proceeding in the first inquiry ended in favour of the petitioner and by the time the sealed cover was opened to give effect to it, another disciplinary proceeding was started by the department, would not come in the way of giving the petitioner the benefit of the assessment made by the first departmental promotion committee in his favour in the anterior selection. 11. Therefore, applying the law laid down by the apex Court to the present context, the opposite parties are directed to give the benefit of assessment made by the first departmental promotion committee on 01.11.1992 by opening the sealed cover forthwith, preferably within a period of two months from the date of communication of this judgment. In the event the petitioner has been given promotion to the post of SMGS-IV, pursuant to such decision of the promotion committee, he is entitled to get all consequential service benefits as due and admissible to him in accordance with law. 12. The writ petition is thus allowed. No order to costs. Petition allowed.