Andhra HC (Pre-Telangana)
K. Seetharama Prasad vs Andhra Bank Ltd. And Anr. on 6 February, 1995
Equivalent citations: 1995(1)ALT320, (1996)IIILLJ93AP
ORDER
1. The petitioner was directly recruited by the Management of the first respondent-Bank on March 13, 1978 in Junior Management Grade-I cadre. After completion of two years training for the direct recruit Junior Officer, the petitioner was drafted as Technical Officer and he was posted as Technical Officer at Hyderabad Main Branch. Later the petitioner was promoted to Middle Management Grade Scale (MMGS)-II on August 5, 1983. At present the petitioner is working as Technical Officer in Sultan Bazaar Branch of the respondent Bank in the City of Hyderabad.
2. The petitioner came under zone of consideration for promotion from M. M. G. S. -II to M. M. G. S. -III during the year 1993. Accordingly the Departmental Promotion Committee (for short 'D. P. C.') constituted by the bank for screening the candidates, interviewed the petitioner on September 18, 1993 at Vijayawada for consideration his case for promotion from M. M. G. S. II to M. M. G. S. III. In the list of successful candidates selected for promotion from M. M. G. S. III released by the Management of the Bank on December 31, 1993 the name of the petitioner finds a place at S. No. 45. 83 officers are found suitable for promotion from M. M. G. S. II to M. M. G. S. III. In the circular issued by the second respondent-General Manager (Personnel Department) dated December 31, 1993 it is stated that the individual orders of promotion together with the place of posting in accordance with the guidelines (2) (a) and (b) or Regulation 17 of the Andhra Bank (Officers) Service Regulations 1982 (for short 'the Regulations') as applicable and fitment of salary etc., will be communicated to the silicate officers in due course. It is complained by the petitioner that the Management of the first respondent-Bank has given monetary benefit in the higher scale i.e. M. M. G. S. III of some of the officers whose names are shown below the name of the petitioner in the select list and certain other officers whose names are shown below the name of the petitioner in the select list are also promoted and the petitioner is not yet promoted for the undisclosed reasons. In these Circumstances, the writ petitioner filed this writ petition in this Court on June 30, 1994 under Article 266 of the Constitution seeking a declaration that the action of the respondent-Management in not promoting the petitioner to M. M. G. S. III is illegal, arbitrary and violative of Articles 14 and 16(1) of the Constitution. The petitioner has further sought a consequential direction to the Management of respondent to promote him from M. M. G. S. II to M. M. G. S. III with all monetary benefits from the date when his immediate juniors were promoted as per the select list issued by the second respondent dated December 31, 1993.
3. This Court on July 5, 1994 issued rule list and on the same day in W. P.M. P. No. 14420 of 1994 filed by the petitioner made an exparte interim order directing the second respondent to consider the representation of the petitioner for grant of monetary benefits with effect from April 25, 1994 when his juniors were extended the said benefit. Further this Court on the same day in another W. P.M. P. No. 21753/94 filed by the petitioner made an interim order directing the Management of the respondent-Bank to open the sealed cover said to have been adopted in the case of the petitioner and act according to the proceedings contained in the said sealed cover for promotion of the petitioner of the petitioner from M. M. G. S. II to M. M. G. S. III. On service of notice the respondent have filed W. V. M. P. No. 2679/94 seeking vacation of the ex parte interim order granted by this Court on October 5, 1994 in W. P.M. P. No. 2173/94. When these Interlocutory matters were posted before the Court for orders, the main writ petition itself was taken up for final hearing and disposal with the consent of the learned counsel appearing for the parties.
4. Sri M. V. K. Viswanatham, the learned counsel for the petitioner contended that the Management of the respondent-Bank acted illegally and in contravention of Regulation 17 of the Regulations and in violation of the mandate of Articles 14 and 16(1) of the Constitution of India in promoting the juniors to the petitioners from M. M. G. S. II to M. M. G. S. III while denying such promotion to the petitioner. The learned counsel pointed out that in the counter filed by the respondent-Management it has stated that petitioner is not promoted to M. M. G. S. III from M. M. G. S. II by adopting sealed Cover Procedure because criminal proceedings are pending against the petitioner. Sri Viswanatham submitted that having regard to the facts of the present case the respondent - Management ought not to have adopted Sealed Cover Procedure because the petitioner was served the chargesheet filed by the C. B. I., Special Police Establishment. Hyderabad in the Court of the V. Metropolitan Magistrate, Hyderabad only on June 9, 1994 long after the D. P. C. met and prepared the select list. Sri Viswanatham, the learned counsel for the petitioner placing reliance on the decision of the Supreme Court reported in Union of India v. K. V. Jankiraman, AIR (1991-II-LLJ-570), and the decision of a Division Bench of this Court rendered in the case of Balbir Singh Nayyar v. Canara Bank, , contended that the Sealed Cover procedure could be resorted to only after the charge memo was issued in a departmental enquiry or a chargesheet was issued in criminal prosecution. In the instant case when the D. P. C. met and considered the case of the petitioner for promotion on September 18, 1993 the chargesheet was not served on the petitioner. Therefore, the action of the respondent Management in withholding the promotion of the petitioner to M. M. G. S. III and adopting Sealed Cover Procedure could not be sustained and liable to be condemned as arbitrary and illegal.
5. Sri Ramesh, the learned counsel for the respondents on the other hand supported the action of the respondents in not promoting the petitioner from M. M. G. S. II to M. M. G. S. III. Sri Ramesh pointed out that the decision of the Supreme Court rendered in K. V. Jankiram (Supra) came to be considered and interpreted by the Supreme Court in the case of Delhi Development Authority v. H. C. Khurana, (1993-II-LLJ-303), and in Union of India v. Kewal Kumar, (1993-II-LLJ-692), and in view of these two later decisions of the Supreme Court the arguments advanced by the learned counsel for the petitioner was not tenable. Sri Ramesh the learned counsel for the respondents pointed out that in the present case F. I. R. was filed in the Metropolitan Magistrate Court on March 12, 1982; and the case was registered in the year 1991 itself and there is evidence to show that even the chargesheet was filed in the Metropolitan Magistrate Court before March 12, 1992, long before the D. P. C. met on September 18, 1993. Sri Ramesh maintained that since the charge sheet was filed against the petitioner in the V Metropolitan Magistrate Court. Hyderabad before the D. P. C. met on September 18, 1993, the respondents - Management is justified in adopting the Sealed Cover Procedure to the facts of the case and in not withholding promotion to the petitioner from M. M. G. S. II to M. M. G. S III pending disposal of the criminal proceedings launched against the petitioner by the C. B. I.
6. In the counter-affidavit filed by the Management of the respondent bank in support of W. V. M. P. No. 2679/94 it is averred that the petitioner while working as Technical Officer at the Sultan Bazaar branch of the respondent-Bank in Hyderabad in the year 1981, in collusion with one Sri Y. Veerendranath, former Chief Officer, S. S. I. department, Andhra Bank and others, processed certain proposals for loan facilities knowing fully well that the amounts would be utilised for making films instead for the purposes for which they were sanctioned. For this, the C. B. T. Special Police Establishment, Hyderabad had registered a case against the petitioner, Mr. Y. Veerendranath and others. Subsequently, the C. B. I. also filed a charge sheet before the Court of the V Metropolitan Magistrate, Hyderabad which has been registered as C. C. No. 75/91 and which is pending trial. It is also averred that when the D. P. C. met on September 9, 1993 for selecting the candidates for promotion from M. M. G. S. II to M. M. G. S. III, the chargesheet was already filed against the petitioner in the Metropolitan Magistrate Court and showing the name of the petitioner in the select list at S. No. was due to a mistake and the said mistake was later rectified by the Management of the Bank by withholding the issuance of the promotion to the petitioner and keeping the result of the interview in the sealed cover. It is also claimed that the petitioner was informed about the adoption of Scaled Cover Procedure. From the averments made in the counter affidavit and the documents filed along with the same one thing is clear that the chargesheet was filed in the Metropolitan Magistrate Court before March 12, 1992. I say so because In a letter, written by the Superintendent of Police, C. B. I. Hyderabad dated March 12, 1992 addressed to the Deputy Chief Officer (Vigilance) Andhra Bank it is stated that the chargesheet was already filed. It is not the case of the petitioner that the chargesheet was filed In the Metropolitan Magistrate Court subsequent to September 18, 1993 when the D. P. C. met and considered the candidature of the officers for promotion. In the absence of such plea and having regard to the averments made by the respondent and the documents produced by them it should be held that the chargesheet was filed in the V Metropolitan Magistrate Court prior to March 12, 1992. On that basis the authorities placed by the learned counsel for the parties in support of their respective contentions are required to be considered. (P. 574)
7. The Supreme Court in Jankiraman (supra) in para 16 of the judgment observed thus :
"On the first question, viz., as to when for the purposes of 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 chargesheet in a criminal prosecution in 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 were 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 experienced so far, the preliminary investigations take in 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 would not take much time to collect the relevant evidence and finalise 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." According to this judgment of the Supreme Court it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the concerned employee, it can be said that the departmental proceedings/criminal prosecution is initiated against the said employee and the Sealed Cover Procedure is to be resorted to only after the charge memo/chargesheet is issued and the pendency of preliminary investigation prior to that stage will not be sufficient to enable to authorities to adopt the Sealed Cover Procedure. The requirement as laid down by the Supreme Court in Jankiraman (supra) to the effect that the Sealed Cover Procedure is to be resorted to only after the charge memo/chargesheet, is issued, came to be considered and interpreted by the Supreme Court itself in Khurana (supra). The Supreme Court after interpreting the words "only after the charge memo/chargesheet is issued" ruled that the me issue of a chargesheet means its despatch to the concerned employee and this act is complete the moment steps are taken for the purposes by framing the chargesheet and despatching it to the concerned employee, the further fact of its actual service on the concerned employee is not a necessary part of its requirement. The Supreme Court ruled that is the sense in which the word 'issue' was used in the expression" Chargesheet has already been issued to the employee" in para 17 of the decision in Jankiraman (supra). At this state it is relevant to note that in Khurana (Supra), the Supreme Court was dealing with the case of withholding a promotion pending a departmental proceedings and not a criminal prosecution.
8. The Supreme Court in the case of Kewal Kumar (supra), observed thus : P. 693 "even if the chargesheet was issued by its despatch to the respondent subsequent to the meeting of the D. P. C., this fact alone cannot benefit the respondent"
In that case the F. I. R. was registered by the Central Bureau of Investigation and on that basis the employer had taken a decision to initiate disciplinary proceedings against the respondent therein for imposition of major penalty and that the decision was taken prior to the meeting of the D. P. C. The employer having taken such a decision to initiate disciplinary proceedings prior to the meeting of the D. P. C. adopted the Sealed Cover Procedure. The question before the Supreme Court in that case was whether the decision in Jankiraman (supra), was correctly applied to the facts of the case. The Supreme Court after referring to the decision in Khurana (supra), and taking into account the object of following the Sealed Cover Procedure ultimately ruled that even in a case where an employer takes a decision to initiate disciplinary proceedings but does not issue charge memo in pursuance of such a decision to the concerned employee before the D. P. C. meets and considers the case of such an employee, the Sealed Cover Procedure can be adopted.
9. The Division Bench of this Court in Balbir Singh, (supra), ruled that the Sealed Cover Procedure can be resorted to only after the charge memo was issued in a departmental proceedings or a chargesheet was issued in criminal prosecution. This observation of the Division Bench cannot be accepted and applied literally. The said statement of law is required to be understood in the context and light of the decisions of the Supreme Court rendered in the case of Khurana 1115 (supra) and Kewal Kumar (supra).
10. What emerges from the discussion of the case law referred to above is that it is only when a charge memo in a disciplinary proceedings or a chargesheet in a criminal prosecution is issued to the employee it can be said that the departmental proceedings/criminal prosecution is initiated against the employee and the Sealed Cover Procedure is to be resorted to only after the charge memo or the chargesheet as the case may be, is issued. The word 'issue' is required to be understood to mean 'despatched' in the case of departmental proceedings. Issuance of a chargesheet as contemplated and required as per the decision of the Supreme Court in Jankiraman (supra) is satisfied if the chargesheet is filed in the concerned crime Court before the D. P. C. meets and considers the case of the employee, as ruled by the Supreme Court in Kewal Kumar (supra).
11. In the back-drop of the statement of law recorded in the proceeding paragraph now I should consider whether the respondent-Bank management is justified in adopting the Sealed Cover Procedure in the case of the petitioner or not. There is no dispute and there cannot be any dispute that the criminal prosecution was launched against the petitioner as far back as on December 31, 1982 itself. Even the chargesheet was filed before the V. Metropolitan Magistrate, Hyderabad by the C. B. I. Special Police Establishment atleast before March 12, 1992. The D. P. C. met only on September 18, 1993 to consider the case of the petitioner and others for promotion from M. M. G. S. II to M. M. G. S. III. In the light of the law laid by the Supreme Court in Kewal Kumar it would be hold that the Management is justified in adopting the Sealed Cover Procedure even assuming that the petitioner was served with chargesheet only on June 9, 1994. I have already held that the chargesheet was filed in the V. Metropolitan Magistrate Court by the C. B. I. even before March 12, 1992. If that is so, even if the chargesheet was issued by its despatch to the petitioner and the same was served on the petitioner subsequent to the meeting of the D. P. C. the Sealed Cover Procedure should be held to be valid as hold by the Supreme Court in Kewal Kumar (supra). At this stage it is also relevant to note that the question of the Court of the learned V. Metropolitan Magistrate despatching the chargesheet to the petitioner does not arise. The requirement of despatch of charge memo was considered and laid down by the Supreme Court in Khurana (supra) in the context of initiation of a departmental enquiry, not in the context of launching of a criminal prosecution against an employee. It is needless to state that the moment the chargesheet was filed in the criminal law Court, the petitioner was entitled to be supplied/furnished a set of copies of the chargesheet and accompanying documents. It may be that the petitioner demanded the copies of the chargesheet and the accompanying documents later and the same were supplied to him on June 9, 1994. That fact alone cannot benefit the petitioner in view of the law laid down by the Supreme Court in Kewal Kumar. Therefore the exception can be taken to the action of the respondent-Management in adopting the Sealed Cover Procedure in the case of the petitioner. The object of adopting the Sealed Cover Procedure is that an employee, particularly an employee in the public service, who is under a cloud of misconduct or an offence cannot be promoted to next higher cadre pending an enquiry into the alleged misconduct or commission of an offence, as the case may be. The public interest and requirement of credibility of the personnel occupying public offices support Sealed Cover Procedure and it is intended to inspire confidence in the mind of the public.
12. In the result and for the foregoing reasons the writ petition fails and it is accordingly dismissed. In the facts and circumstances of the case the parties are directed to bear their own costs.
13. The V. Metropolitan Magistrate Hyderabad is directed to dispose of C. C. No. 75/91 expeditiously at any rate within six months from today. The Registry is directed to send a copy of this order to the learned V. Metropolitan Magistrate, Hyderabad forthwith. The parties are directed to bear their own costs.