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2020 DIGILAW 554 (CAL)

Shyamal Kanti Mondal v. State Bank Of India

2020-07-01

SUBRATA TALUKDAR

body2020
JUDGMENT Subrata Talukdar, J. - This writ petition pertaining to the year 2006 came up for final adjudication in 2020 before this Court after being taken up for consideration last in 2014. 2. Both the parties, i.e. the Petitioner and the Respondent/The State Bank of India (for short SBI) were exhaustively heard. 3. The factual background to the dispute is as follows. 4. In the year 2006 when this writ petition was filed, the petitioner was in service of the Respondent/SBI. At the time when the writ petition was finally heard, the petitioner had long retired from service. In the writ petition the claim is to promotion to the Junior Management Grade II (for short JM II) and Middle Management III (for short MM III) from the post of Assistant to which the petitioner was appointed in December 1980 and also retired during pendency of this writ petition. 5. Mr. Chowdhury, Learned Counsel for the petitioner, emphatically submits that in terms of the then prevailing Promotion Policy of SBI the petitioner was called upon by a Notice dated 27th December, 1994 to appear in the written test and interview for promotion as JM II. However, the petitioner was not allowed to appear in the promotional exercise. 6. Again on 28th November, 1995 the petitioner intimated his willingness to appear in the promotional test to the post of JM II and was issued an Admit Card for the written test to be held in April-May 1996. However, on the 20th of May, 1996, the petitioner was suddenly informed that he was ineligible to appear for the promotional test scheduled for 26th May, 1996. On the same date, i.e. 20th May, 1996, the petitioner claims to have been further informed that he was declared ineligible to participate in the promotional exercise in view of a pending Disciplinary Proceedings (for short DP). 7. Mr. Chowdhury points out that notwithstanding the pendency of the DP as intimated on 20th May 1996, again on 3rd April, 1997, the petitioner was offered the opportunity to sit for the promotional test. However, the petitioner was not allowed to appear in such test reiterating the pending DP of 1995 and subsequently topped with an order of punishment of Censure dated 6th January, 1999. 8. However, the petitioner was not allowed to appear in such test reiterating the pending DP of 1995 and subsequently topped with an order of punishment of Censure dated 6th January, 1999. 8. Both the Appeal filed by the petitioner against the order of punishment and his representation before the Chairman of the Grievance Committee of SBI having been rejected in March, 1999 and December, 2000 respectively, the first writ petition, being WP 215 (W) of 2002, was filed by the petitioner. 9. Learned Counsel for the petitioner heavily relies on the final order of the Hon''ble Court dated 21st June, 2004 in WP 215 (W) of 2002 which is reproduced in full below:- "The Court:- This writ petition has been filed challenging the decision of the Disciplinary Authority and the Appellate Authority regarding punishment imposed on the petitioner in connection with the departmental proceeding that was initiated against him by chargesheet dated February 25th, 1995. An enquiry was held. The Enquiry Officer has submitted his report. by a decision dated October 9th, 1998 the Disciplinary Authority recorded his disagreement with the finding of the Enquiry Officer regarding charges 1(a) and 1(b). Proposing punishment the Disciplinary Authority gave an opportunity to the petitioner to make representation. After the representation was submitted the Disciplinary Authority passed the final order if he inflicted punishment of conaure on the petitioner. Appeal preferred by the petitioner was rejected by the A[[e;;ate Authority by a decision dated March 10th, 1999. Learned Counsel for the petitioner submits that the Disciplinary Authority did not record his disagreement after following the principles of natural justice. He submits that at the stage of recording disagreement the Disciplinary Authority did not give an opportunity of hearing to the petitioner. He relies on the Supreme Court decision reported at 1999 (4) SLR 292 (SC). He further contends that the Disciplinary Authority recorded his disagreement without disclosing any reason for such disagreement. Learned Counsel for the respondents submits that a minor punishment was imposed and the principles of natural justice were complied with before imposing the punishment. After hearing the Learned Counsel for the parties and after going through the materials on record I am of the view that the decisions of the Disciplinary Authority and the Appellate Authority cannot be sustained in Law. After hearing the Learned Counsel for the parties and after going through the materials on record I am of the view that the decisions of the Disciplinary Authority and the Appellate Authority cannot be sustained in Law. The Law has been clearly laid down by the Apex Court that if the Disciplinary Authority finds reasons to disagree with the finding of the Enquiry Officer, then at the stage of recording such disagreement the Disciplinary Authority in the present case the Disciplinary Authority did not give any opportunity of hearing to the petitioner at the stage of recording disagreement. The disagreement recorded by the Disciplinary Authority is also vitiated by non-disclosure of reasons for such disagreement. Hence the decision cannot be sustained. As a consequence the Appellate Authority''s decision also cannot be sustained. For the above reasons this writ petition is allowed. The decisions of the Disciplinary Authority and the Appellate Authority are hereby quashed. The decision wherein the Disciplinary Authority recorded this disagreement with the finding of the Enquiry Officer is also hereby set aside. All the consequential steps shall be taken by the respondents forthwith. The Disciplinary Authority shall, however, be at liberty to proceed afresh, if he finds reasons for it, from the stage of receipt of proceed afresh then all the principles of natural justice shall be complied with by the Disciplinary Authority. In the facts and circumstances of the case I am not inclined to make an order for costs in favour of the petitioner. Hence there will be no order for costs in this application. Urgent certified xerox copy of this dictated order may be supplied to the parties, if applied for." 10. It is submitted that the Respondent/SBI acted in terms of the order dated 21st June, 2004 by writing to the petitioner on 7th March, 2005 as follows:- "STAFF-Award QUASHED OF CENSURE With reference to the above, it has been decided by the concerned Disciplinary Authority to quashed the punishment of censure on you in terms of the order of the Hon''ble Justice Shri J.Biswas of the Calcutta High Court dated 21.06.2004. Branch Manager." 11. Therefore, Mr. Chowdhury submits that with the quashing of the order of Censure, there was no obstacle to the petitioner being entitled to promotion at the next higher grade with retrospective effect. Branch Manager." 11. Therefore, Mr. Chowdhury submits that with the quashing of the order of Censure, there was no obstacle to the petitioner being entitled to promotion at the next higher grade with retrospective effect. Accordingly, the petitioner addressed a representation to the concerned authorities at SBI dated the 19th of May, 2005 followed by a Demand for Justice through his Learned Advocate dated 6th December, 2005 praying for consequential benefits to be extended in terms of the order of the Hon''ble Court dated 21st June, 2004. 12. Since the petitioner was not considered for promotion during the subsistence of his service in 2006, the present writ petition has been filed. The prayers in the writ petition read as follows:- "In the premises your petitioner humbly prays that Your Lordships may graciously be pleased to issue- a) A Writ in the nature of Mandamus commanding the respondents to forthwith act in accordance with law and promote the petitioner to the post of Junior Management Gr.I with effect from 1994 and Middle Management Gr.II in 1998 and Middle Management Gr.III in 2002 and also to pay the petitioner all arrears of salaries and allowances attached to the said posts forthwith and also to fix the seniority of the petitioner in accordance with law; b) A Writ in the nature of Certiorari directing the respondents to certify and produce all records relating to withholding of promotion of the petitioner in the post of Junior Management Gr.I thereafter Middle Management Gr. II and Middle Management Gr.III so that conscionable justice may therein be administered in quashing the same; c) Rule Nisi in terms of prayers (a) and (b) above; d) Any other or further order or orders and/or writ and/or direction as Your Lordships may deem fit and proper. And your petitioner, as in duty bound, shall ever pray." 13. During the pendency of the writ petition, the petitioner stood superannuated. Relying on a plethora of legal authorities, Mr. Chowdhury submits that the SBI is bound to take consequential steps in terms of the solemn order dated 21st June, 2004. It is submitted that by calling the petitioner thrice for the promotional tests and denying him an opportunity thrice to appear in such tests is an arbitrary exercise. It was always open to the SBI to adopt the Sealed Cover Method to consider the petitioner for promotion notwithstanding the pendency of the DP. It is submitted that by calling the petitioner thrice for the promotional tests and denying him an opportunity thrice to appear in such tests is an arbitrary exercise. It was always open to the SBI to adopt the Sealed Cover Method to consider the petitioner for promotion notwithstanding the pendency of the DP. Such Sealed Cover Method is recognized by law and the petitioner was, admittedly, thrice within the zone of consideration having been called to appear for the promotional tests. 14. Arguing that the right to be considered for promotion is a fundamental right and also that the solemn order of 21st June, 2004 has attained finality and accepted by the SBI, which would be evident from the communication dated 7th March, 2005 (supra), Mr. Chowdhury submits that the SBI deliberately sat tight on the promotion of the petitioner allowing him to retire. 15. In support of his submissions Mr. Chowdhury relies upon the following authorities:- AIR 1994 SC 2408 ; AIR 1991 SC 2010 ; 1985 (1) SLR 5000; AIR 1987 SC 479 ; AIR 1996 SC 571 ; 1999 (4) SLR 492. 16. Also relying on AIR 1979 SC 1060 Mr. Chowdhury submits that in the particular facts of the present case, this Court has the power to mould the relief. 17. Arguing for the Respondents/SBI, Mr. Routh, Learned Counsel, submits that the policy the then prevailing Promotion Policy is not under challenge by the petitioner. Relying on the then Promotion Policy, Learned Counsel for SBI submits that in cases where the DP is in progress or, when the DP is contemplated for an offence amounting to fraud, forgery or any other act which prima facie falls within the pale of criminal misconduct, the promotion shall be withheld. 18. It is submitted that the Respondents/SBI had always continued to act under the then Promotion Policy. Since, at the material point of time, when the petitioner was called upon to appear in the promotional tests, the DP was pending and/or in progress read with the further fact that the punishment of Censure was issued in 1999, the petitioner was ineligible to be even considered for promotion at that stage. 19. Since, at the material point of time, when the petitioner was called upon to appear in the promotional tests, the DP was pending and/or in progress read with the further fact that the punishment of Censure was issued in 1999, the petitioner was ineligible to be even considered for promotion at that stage. 19. Having heard the parties and considering the materials placed, at this stage this Court must heavily notice the solemn order dated 21st June, 2004 which quashed and/or set aside the order of Censure with the further direction upon SBI to take consequential steps. This Court must also heavily notice the fact that the SBI followed the order dated 21st June, 2004 by treating the order of Censure as quashed through its communication dated 7th March, 2005. 20. In the above premise, the Respondent/SBI owed a legal duty to the petitioner under its Promotion Policy to consider him for promotion. To the mind of this Court on a DP being concluded with a punishment of Censure only and such order of Censure having returned with a direction to set the same aside, the SBI ought to have taken the consequential step by promoting the petitioner in accordance with law. In this connection the relevant clauses of the extant Promotion Policy of SBI are reproduced for the benefit of this discussion:- "x) 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. y) 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--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 o him, without having to appear again in a promotion test." 21. Since the solemn Order of the Hon''ble Court dated 21st June, 2004 (supra) is unambiguous, the petitioner is eligible to recover his legal profile as if no DP had taken place. This view is strengthened by the action of the SBI which did not initiate a fresh DP and, instead quashed the order of Censure. 22. Since the solemn Order of the Hon''ble Court dated 21st June, 2004 (supra) is unambiguous, the petitioner is eligible to recover his legal profile as if no DP had taken place. This view is strengthened by the action of the SBI which did not initiate a fresh DP and, instead quashed the order of Censure. 22. A combined reading of the order of the Hon''ble Court dated 21st June, 2004 read with the communication of SBI dated 7th March, 2005 presents the legal position that the pre-DP position of the petitioner has been asserted and returned to him by operation of law. Accordingly, the petitioner is entitled to protection under Clause (X) (supra). 23. Since the petitioner is entitled to benefits under the then applicable Promotion Policy of SBI, the issue of challenging such Promotion Policy does not merit consideration. 24. The Respondents/SBI are therefore directed to refix the promotion of the petitioner by applying Clause (X) (supra) and pay him actual arrears as well as revised pensionary benefits not later than a period of eight weeks from the date of communication of this order. 25. There will be no order as to costs. 26. W.P. No. 19290 (W) of 2006 stands thus allowed. 27. Urgent Xerox certified photocopies of this judgment, if applied for, be given to the parties upon compliance of the requisite formalities.