Jharkhand High Court
Jharkhand Rajya Gramin Bank vs Arun Kumar Sinha on 22 December, 2022
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad, Subhash Chand
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IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No.338 of 2021
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Jharkhand Rajya Gramin Bank, a Regional Rural Bank
constituted under the Regional Rural Banks Act, 1976,
through its Chairman, Shri Piyush Jatashankar Bhatt, aged
about 55 years, Son of Late Jatashankar Bhatt and, working
at the Head Office-Market Place, Block A. 3rd Floor, Zila
Parishad Bhawan, Kutchery Road, P.S. Kotwali, P.O. &
District Ranchi, PIN 834001
.... .... Respondent No.3/Appellant
Versus
1. Arun Kumar Sinha, son of Shri Brindaban Bihari Lal,
resident of Sehopuri Colony, behind Sadar Hospital, Garhwa,
P.O., P.S. & District Garhwa (Jharkhand)
.... .... Petitioner/Respondent
2. Vananchal Gramin Bank, through Chairman, Vananchal
Gramin Bank, Head Office Dumka, P.O., P.S. & District
Dumka (Jharkhand).
3. The General Manager, Vananchal Gramin Bank, P.O. &
P.S. Medininagar, District Daltonganj (Jharkhand).
.... .... Respondent Nos.1 & 2/Proforma Respondents
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CORAM : HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
HON'BLE MR. JUSTICE SUBHASH CHAND
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For the Appellant : Mr. Nipun Bakshi, Advocate
For the Respondents : Mr. Saurav Arun, Advocate
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Order No.05/Dated 22nd December, 2022
Per Sujit Narayan Prasad, J.:
It has been submitted by the learned counsel for the appellant that the respondent nos.2 and 3, the respondents in the writ petition, have been impleaded as proforma respondent nos.1 and 2.
2It has further been submitted that their names may be deleted on the basis of the fact that the erstwhile bank, namely, Vananchal Gramin Bank has been merged into Jharkhand Rajya Gramin Bank, therefore, an interlocutory application being I.A. No.754 of 2021 was filed seeking therein leave of this Court to implead Jharkhand Rajya Gramin Bank as respondent no.3.
The aforesaid interlocutory application was allowed by the learned Single Judge vide order dated 22.02.2021 by impleading Jharkhand Rajya Gramin Bank through its Chairman as respondent no.3.
Learned counsel for the appellant, therefore, submits that since the functionaries who have been impleaded as respondent nos.2 and 3 were the functionaries of the Vananchal Gramin Bank and after its merger with the Jharkhand Rajya Gramin Bank, they are no more necessary parties.
2. The assertion so made has not been disputed by the learned counsel for the respondent-writ petitioner.
3. Considering the aforesaid fact and taking into consideration the order passed by the learned Single Judge dated 22.02.2021 in I.A. No.754 of 2021, permission sought for, is hereby, allowed.
4. Let necessary deletion be made in course of the day. 3
5. The instant intra-court appeal preferred under Clause- 10 of Letters Patent is directed against the order/judgment dated 09.09.2021 passed by the learned Single Judge of this Court in W.P.(S) No.2422 of 2011, by which the decision of the respondent authority as contained in letter dated 17.08.2007, whereby and whereunder the decision has been taken not to give effect or open sealed cover in respect of the promotion of the writ petitioner as the departmental proceeding against the petitioner ended with inflicting punishment, has been quashed and set aside.
6. The brief facts of the case, as per the pleading made in the writ petition, required to be enumerated, are as hereunder:-
It is the case of the writ petitioner that while the petitioner was working as Branch Manager at Ataula under the respondent Bank, a departmental proceeding was initiated against the petitioner for the period when the petitioner was posted at Deori Cement factory Branch. Charges have been levelled against him for not fulfilling the norms of the Bank and for that the Bank has suffered a loss.
In the departmental proceeding the petitioner appeared and final order was passed on 25.6.2005 imposing punishment of recovery of Rs.20,000/- for the loss caused to the Bank. However, prior to the aforesaid punishment order, a 4 seniority list was prepared by the respondent Bank on 29.11.2004 in which the petitioner was placed at serial No.15.
On 18.12.2004, one circular was issued for promotion from Junior Manager Grade I to Middle Manager Grade II, and number of posts has been shown to be vacant to which promotions were to be granted and written examination was to be held on 23.01.2005. In the said circular it was also stated that all those who fulfill the requisite qualification can apply. Subsequently, on 07.03.2005 a letter was issued which contained the names of the employees who have appeared and found successful in the written examination conducted for promotion. In the said list, the name of this petitioner stood at serial no. 1 under the heading of list of candidates who qualified in the written test for promotion to Middle Manager, Grade II.
Consequently, on 21.4.2005 promotion was given to several employees, however, it has been mentioned that those persons against whom Departmental Proceeding was initiated or likely to be initiated, their cases have been withheld. Thereafter, the respondent Bank also took a decision to open the sealed cover in cases where the departmental proceeding came to an end and accordingly, two persons were promoted. However, cases of those employees against whom punishment has been imposed and recovery has been made, were not 5 considered.
The grievance of the petitioner is that from the impugned order itself it transpires that the decision taken with respect to promotion of the petitioner was kept in a sealed cover. However, it was stated by the General Manager of the Bank that the appointing authority has decided not to give effect to the decision kept in the Sealed Cover, as the departmental proceeding ended with the imposition of penalty.
It is the case of the writ petitioner that he, while working as Branch Manager, Junior Management Group-I (JMG-I), had participated in the departmental examination for consideration of his promotion to Middle Manager Grade-II. Consequently, several co-employees have been granted promotion against whom the departmental proceeding was initiated, as the case of the writ petitioner is, or likely to be initiated but the case of the writ petitioner has been withheld.
The respondent-bank, thereafter, has taken decision to convene a meeting of the departmental promotion committee in which the case of the writ petitioner also finds mentioned for its consideration but on the ground of pendency of the departmental proceeding his case was kept in sealed cover. The departmental proceeding has finally culminated into an order of punishment dated 25.06.2005 by which his misconduct has been proved and in consequence thereof an 6 amount of Rs.20,000/- has been directed to be recovered from the salary of the writ petitioner.
The recommendation of the Departmental Promotion Committee which was made in favour of the writ petitioner but the sealed cover has been denied to be opened and thereby the writ-petitioner has approached this Court by filing writ petition being W.P.(S) No.2422 of 2011 for seeking a direction to open the sealed cover and grant him promotion irrespective of the fact that an order of punishment of recovery of Rs.20,000/- has been inflicted upon the writ- petitioner.
According to the writ-petitioner, if the nature of punishment of recovery of Rs.20,000/- will be considered to be a ground for denial of promotion, the same will be nothing but changing the nature of punishment which admittedly originally was minor in nature but if the promotion will be discarded on that ground, its nature will be changed from minor to major.
The respondent-bank, appellant herein, has appeared before the learned Writ Court and has taken the ground that since the misconduct has been proved, therefore, the writ- petitioner has been debarred from promotion in view of the policy decision taken in this regard by the Management which was floated on 02.01.2015.
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The learned Single Judge, after appreciating the rival submissions advanced on behalf of the parties, has discarded the ground agitated by the respondent-bank (the appellant herein) and allowed the writ petition with a direction to grant the writ-petitioner promotion with effect from due date along with entire consequential benefits including the arrears of salary. The Bank, being aggrieved with the said order, is before this Court by filing intra court appeal.
7. Mr. Nipun Bakshi, learned counsel appearing for the appellant-respondent has submitted by referring to the impugned order, wherein a direction has been passed by holding the non-opening of sealed cover on the ground holding it non est in the eyes of law once the order of punishment has been passed and thereby directed to grant the writ-petitioner promotion with effect from due date.
The learned Single Judge has also answered regarding the applicability of the debarment policy which has given effect to w.e.f. 02.01.2015 by holding therein about its non- applicability on the ground that the said policy decision cannot be allowed to be operative with retrospective effect, since, the case of the writ-petitioner admittedly is for promotion much much prior to the effectiveness of the debarment policy.
The learned Single Judge has agreed with the view of the 8 respondent-writ petition and has held that the debarment policy of the year 2015 will not be applicable since any policy decision will not be operative with retrospective effect. The learned Single Judge has also given a finding with respect to the recovery of the amount of Rs.20,000/- which was to be done in three monthly installments and the amount since has been deposited, the same will not come in the way of consideration of his promotion to the higher post.
Mr. Bakshi, learned counsel appearing for the appellant has submitted that while passing such direction, the learned Single Judge has failed to appreciate the law laid down by the Hon'ble Apex Court in the case of Union of India and Others v. K.V. Jankiraman reported in (1991) 4 SCC 109, wherein as under paragraph 29, the position of law has been settled by settling the process what to be done in a case when a public servant has been penalized after proving of the misconduct as has been alleged by issuance of memorandum of charge.
According to him the Hon'ble Apex Court has settled the process by which in case if an employee has been punished on proof of misconduct when the requirement will be to refer the case of such public servant before the next departmental promotion committee for consideration of case of the writ- petitioner for promotion to the higher post to test as to 9 whether the punishment already imposed will be considered to be a rider for granting promotion or not. But the learned Single Judge without appreciating the ratio laid down by the Hon'ble Apex Court has held the non-opening of the seal cover non est, the same cannot be said to be sustainable in the eye of law.
So far as the issue of applicability of debarment policy is concerned, Mr. Bakshi, learned counsel for the appellant, is in agreement to the said finding, since, the policy decision, if any, cannot be allowed to be operative with retrospective effect, reason being that the retrospectivity is only to be directed by the legislature or the Parliament not by the concerned authority by issuing executive instruction.
So far as the finding recorded pertaining to the recovery already made will not come under the way for consideration of promotion, submission has been made by Mr. Bakshi that the deposit of amount is immaterial rather the misconduct since has been proved that is the paramount consideration for consideration of promotion to be given in favour of one or the other employee. Therefore, the finding with respect to issue no.3 also suffers from error.
Learned counsel, in backdrop of the aforesaid fact, has submitted that the order passed by the learned Single Judge requires interference.
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8. Mr. Saurav Arun, learned counsel appearing for the respondent-writ petitioner, in all fairness and after considering the ratio laid down by the Hon'ble Apex Court at paragraph 29 of the judgment rendered in the case of Union of India and Others v. K.V. Jankiraman (supra) has not disagreed with the submission made on behalf of the appellant-respondent. However, he submits that the case of the writ-petitioner is required to be considered afresh strictly on the basis of the law laid down by the Hon'ble Apex Court in the aforesaid case.
9. This Court has heard the learned counsel for the parties, perused the documents available on record as also the finding recorded by the learned Single Judge in the impugned order.
10. The issue involved in this case which requires consideration by this Court is as to whether after charge of misconduct having been proved, an employee whose case has been kept in a sealed cover awaiting the outcome of the departmental proceeding, can be considered fit for promotion from the due date?
The law is well settled as has been held by the Hon'ble Apex Court in the case of Union of India and Others v. K.V. Jankiraman (supra) wherein at paragraph 8 these three issues have been formulated - (1) What is the date from which it can be said that disciplinary/criminal proceedings are 11 pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? For ready reference, paragraph 8 of the aforesaid judgment is required to be referred hereunder which reads hereunder as:-
"8. The common questions involved in all these matters relate to what in service jurisprudence has come to be known as "sealed cover procedure". Concisely stated, the questions are: (1) What is the date from which it can be said that disciplinary/criminal proceedings are pending against an employee? (2) What is the course to be adopted when the employee is held guilty in such proceedings if the guilt merits punishment other than that of dismissal? (3) To what benefits an employee who is completely or partially exonerated is entitled to and from which date? The "sealed cover procedure" is adopted when an employee is due for promotion, increment etc. but disciplinary/criminal proceedings are pending against him at the relevant time and hence, the findings of his entitlement to the benefit are kept in a sealed cover to be opened after the proceedings in question are over. Hence, the relevance and importance of the questions."
The Hon'ble Apex Court has delved upon the aforesaid issue as would appear from paragraphs 28 and 29 together. Since it is a case where the effect of inflicting punishment is the fact of the given case and whether it can be considered to rider to grant promotion from the due date, the same since has been dealt with at paragraph 29, therefore, the paragraph 12 29 is required to be referred herein, which reads hereunder as:-
"29. According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the Tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of a misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalised in praesenti. When an employee is held guilty and penalised and is, therefore, not promoted at least till the date on which he is penalised, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact, while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the 13 penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the Tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum. We, therefore, set aside the said findings of the Tribunal."
11. It is evident from the proposition laid down by the Hon'ble Apex Court that in case of punishment having been imposed on proof of guilt of misconduct then the course available is to refer the matter before the Departmental Promotion Committee for consideration of case of such public servant in order to verify as to whether the nature of punishment so inflicted can be considered to be a rider or not? Such proposition has been laid down on the basis of the legal position that right to consideration for promotion has been considered to be a fundamental right.
12. This Court after having discussed the legal position as settled by the Hon'ble Apex Court in the judgment rendered in the case of Union of India and Others v. K.V. Jankiraman (supra) is now coming to the facts of the case in order to assess the legality and propriety of the impugned order 14 passed by the learned Single Judge.
13. The fact which is not in dispute in this case is that the writ-petitioner, while working as Branch Manager, had participated in the written examination for assessing his performance as to whether he is fit to be promoted from Junior Manager Grade I to Middle Manager Grade II.
The writ-petitioner qualified in the said examination, but in the meanwhile, a departmental proceeding was initiated regarding some irregularity committed in course of discharge of his duties. The matter was sent before the Departmental Promotion Committee and the said committee has kept the case of the writ-petitioner in sealed cover and that decision has been taken, according to our view, on the basis of the law laid down by the Hon'ble Apex Court in the case of Union of India and Others v. K.V. Jankiraman (supra).
The sealed cover has not been opened, therefore, the writ petition has been filed in which the writ-petitioner has been considered to be eligible to get promotion with effect from the due date. The learned Single Judge on consideration of rival submissions has formulated four issues that is:-
(i) When there was no specific provision for debarment of promotion in Palamau Kshetriya Gramin Bank when the case of this petitioner was considered by D.P.C. whether the Sealed Cover procedure should have been adopted by the respondent Bank after the punishment was imposed ?15
(ii) Whether the Debarment Policy which comes into effect on 02.01.2015 will be applicable in the case of the petitioner as the said policy is of the Bank namely Vananchal Gramin Bank Ltd. ?
(iii) When the punishment of recovery of Rs.20,000/- was over by January'2006 by recovering the said amount in three equal installments; as to whether the petitioner should suffer the rigors of punishment for next seven years ?
(iv) Whether the action of the respondents in not giving promotion to the petitioner on the ground that he has been punished does not amount to punishing the delinquent twice for one charge ?
Learned Single Judge, has answered the issue no.i, which pertains to exercise to be done, once the guilt of misconduct has been proved, by the Departmental Promotion Committee.
14. It is evident from paragraph 7, wherein the issue no.i has been dealt with, that the learned Single Judge has considered the non-opening of sealed cover to be non est in the eyes of law. The reasons has been rendered therein that since there is no specific provision for debarment of promotion in Palamau Chetriya Gramin Bank when the case of this writ-petition was considered by the Departmental Promotion Committee but the learned Single Judge, while coming to such conclusion, has failed to appreciate the law laid down by the Hon'ble Apex Court.
It is no doubt that the debarment policy has come in the year 2015 and it will not be effective with retrospective effect 16 but the issue of applicability of the debarment policy was not the issue, according to our considered view, rather issue was as to whether in case of inflicting punishment on the ground of proved misconduct what would be the course to be followed. The said process has been settled by the Hon'ble Apex Court in the judgment rendered in the case of Union of India and Others v. K.V. Jankiraman (supra) (Hon'ble Bench comprising three Hon'ble Judges) and, therefore, the same being the law of land, is binding in view of the provision of Article 141 of the Constitution of India.
When the law has already been settled and as such it was the onerous duty of the learned Single Judge to take into consideration the law laid down in this regard. But, without considering the law laid down in this regard, the non-opening of sealed cover has been considered to be non est.
15. Accordingly in our considered view, the finding with respect to issue no.(i) cannot be said to be in consonance with the law laid down by the Hon'ble Apex Court in the case of Union of India and Others v. K.V. Jankiraman (supra) and, therefore, the same requires interference.
Accordingly, the finding the recorded with respect to issue no.(i) is, hereby, quashed and set aside.
16. So far as the issue no.(ii) which pertains to the applicability of debarment policy is concerned, since, the 17 learned counsel for the appellant, in all fairness, has submitted that, that part of the order cannot be said to suffer from an error, reason being that the debarment policy has come in the year 2015 and the case of the writ petitioner is to be considered much much prior to that and as such the debarment policy of 2015 cannot be made operative with retrospective effect.
Since it is the submission made on behalf of the petitioner, therefore, this Court is not delving upon this issue and that part of the order also requires interference.
17. So far as the issue no.(iii) which pertains to recovery of Rs.20,000/- is concerned, the amount since has been deposited and, as such, the same needs no comment from this Court but the comment with respect to its implication upon the consideration of promotion is concerned, this Court is of the view that the same is required to be considered by the subsequent Departmental Promotion Committee in order to test as to whether the nature of punishment and its payment will come in the way of grant of promotion in view of law laid down by the Hon'ble Apex Court at paragraph 29 thereof or not?
18. This Court, on the basis of entirety of facts and circumstances and taking into consideration the law laid down by the Hon'ble Apex Court, is of the view that the part 18 of the order as referred at paragraph 9 thereof i.e., "so far as Issue no.(iii) is concerned, after recovery of Rs.20,000/- by the bank in three monthly installments, the petitioner should not have suffered rigors of punishment for next seven years, inasmuch as, the order of punishment (Annexure-12) itself transpires that the respondents have admitted that the loss occurred to the Bank was due to shortage of staff; so the charge was neither intentional nor of gross negligence, as such the respondent Bank was bound to open the sealed cover and to take a decision in accordance with the recommendation of the D.P.C. after the effect of punishment was over and the recovery was made" is hereby quashed and set aside.
19. In consequence thereof and in view of the law laid down by the Hon'ble Apex Court in the case of Union of India and Others v. K.V. Jankiraman (supra), the appellant-bank is, hereby, directed to place the case of the writ-petitioner before the Departmental Promotion Committee for its consideration afresh, strictly in accordance with the law laid down by the Hon'ble Apex Court, as has been referred at paragraph 29 thereof.
20. The appellant-bank is further directed to complete the exercise within the period of eight weeks from the date of receipt/production of copy of the order.
21. The instant appeal accordingly stands disposed of with 19 the observation and direction made hereinabove.
22. Consequently, I.A. No.6436 of 2021 also stands disposed of.
(Sujit Narayan Prasad, J.) (Subhash Chand, J.) Birendra-Rohit/A.F.R.