Gujarat High Court
Arvind P Jejurikar vs State Bank Of India (Sbi) & on 12 January, 2016
Author: Akil Kureshi
Bench: Akil Kureshi
C/SCA/14783/2003 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 14783 of 2003
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE AKIL KURESHI
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
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ARVIND P JEJURIKAR....Petitioner(s)
Versus
STATE BANK OF INDIA (SBI) & 1....Respondent(s)
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Appearance:
MR BIREN A VAISHNAV, ADVOCATE for the Petitioner(s) No. 1
MR PRANAV G DESAI, ADVOCATE for the Respondent(s) No. 1 - 2
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CORAM: HONOURABLE MR.JUSTICE AKIL KURESHI
Date : 12/01/2016
ORAL JUDGMENT
1. This petition is filed by an employee of respondent State Page 1 of 10 HC-NIC Page 1 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT Bank of Saurashtra challenging the action of respondent authorities in keeping the recommendations of the Departmental Promotion Committee ("DPC" for short) held in September 2001 and September 2002 for promotion in sealed cover. The petitioner has prayed for a direction to grant him promotion with consequential benefits. The petitioner has also questioned the motives of the authorities in issuing the chargesheet. He has thereupon prayed for a direction to the authorities not to proceed with such chargesheet. However, in view of the fact that subsequently such proceedings have been completed resulting into imposition of penalty, which order has been challenged by the petitioner by filing a separate petition, counsel for the petitioner did not press this further challenge in this petition. I have therefore, focused my attention to the petitioner's grievance of non promotion and keeping the recommendation of DPC in sealed cover in his case.
2. Brief facts are as under. The petitioner joined the respondent bank in the Junior Management Grade ScaleI on 27.10.1975. In due course, he received his promotions till he was placed in Senior Management GradeV. At the relevant time, he was working as Assistant General Manager at the head office at Bhavnagar. He was entitled to be considered for promotion to the Top Executive Grade ScaleVI, upon completion of three years of service in the feeder cadre. The DPC for recommending the case of employees for such promotion met in September 2001. Case of the petitioner was considered but kept in sealed cover. The other employees recommended by DPC received Page 2 of 10 HC-NIC Page 2 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT promotion to the exclusion of the petitioner. Once again DPC was convened on 21.9.2002 for such purpose. Once again the recommendations of DPC in case of the petitioner were kept in sealed cover.
3. Admittedly, till the time when these two DPCs were convened, no departmental chargesheet was issued to the petitioner. The petitioner therefore, made a representation to the respondents objecting to his case being kept in a sealed cover. His representation came to be turned down by the Chief General Manager under order dated 8.9.2003 on the ground that the management had already taken a decision to initiate disciplinary action against the petitioner, though the chargesheet due to administrative reasons could not be served to him. The petitioner thereupon filed this petition and has claimed the reliefs mentioned above.
4. Learned counsel for the petitioner would point out that when the DPCs met in September 2001 and September 2002 admittedly no chargesheet was issued to the petitioner. Chargesheet came to be issued only on 18.1.2003. The department has taken a decision to formulate the policy for keeping case of employees in sealed cover in line with judgement of the Supreme Court in case of Union of India etc etc. v. K.V. Jankiraman, etc. etc reported in AIR 1991 Supreme Court 201 and clarified that sealed cover procedure cannot be applied in cases where departmental action is contemplated, and can be resorted to, only where the offence or misconduct is of a grave nature and glaring on the facts of the case.
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4.1) Counsel drew our attention to the affidavit in reply filed by the bank along with which the respondents have annexed internal file noting dated 22.1.2001 to contend that the decision was already taken for issuance of charge sheet. Counsel contended that this noting nowhere records a formal decision on part of the authorities to issue a chargesheet and at any rate till such chargesheet was issued, the sealed cover procedure could not have been followed.
4.3) Counsel placed heavy reliance on the decision in case of K.V. Jankiraman(supra) and the decision of the bank itself to recast its sealed cover procedure policy in tune with such decision of Supreme Court in case of K.V. Jankiraman(supra).
5. Having perused the materials on record, I find that the facts are not seriously in dispute. The DPC for considering the cases of eligible candidates for promotion from Senior Management GradeV to the Top Executive Grade ScaleVI was convened in September 2001. Case of the petitioner was kept in sealed cover. This was repeated during the DPC meeting which was held in September 2002 also. The chargesheet came to be issued only on 18.1.2003. Thus clearly when the meeting of both DPCs were held, no chargesheet was issued to the petitioner. In that view of the matter, the decision of Supreme Court in case of K.V. Jankiraman(supra) would squarely apply. In such decision, it was held that it is only when a chargememo in a disciplinary proceedings or a chargesheet in a criminal Page 4 of 10 HC-NIC Page 4 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT prosecution is issued to the employee that it can be said that the departmental proceedings or criminal prosecution is initiated against the employee. The sealed cover procedure is to be resorted to only after the chargememo or chargesheet 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. This decision was ofcourse rendered in the background of the instructions of the Department of Personnel Training, Government of India, which referred to initiation of departmental proceedings for withholding of promotion to an an employee by keeping the recommendation of DPC in sealed cover. It was in this background that the Supreme Court interpreted that when could a disciplinary proceedings could be stated to have been initiated. In the present case, the bank itself has revised its sealed cover procedure policy and brought the same in tune with the decision in case of K.V. Jankiraman(supra). Relevant portion of such policy reads as under :
"Staff Supervising : Department Policy : Sealed cover procedure The latest instructions relating to the department policy/sealed cover procedure were submitted to the Executive Committee at their meeting held on 25.07.1992. These instructions were in agreement with the views of Supreme Court in the case of Jankiraman.
As per these instructions, sealed cover procedure can be applicable only after the issuance of a chargesheet, that being the date from which disciplinary/criminal proceedings can be taken to have been initiated. Accordingly, sealed cover procedure is applicable in respect Page 5 of 10 HC-NIC Page 5 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT of promotion to next higher cadre/scale only to the following cases of officials in JMGSI to SMGSIV.
A) Officers against whom chargesheet has been issued in a disciplinary case and/or criminal prosecution has been launched in the Court of law.
B) Officers who have been placed under suspension.
We have been advised by State Bank of India, Central Office, Mumbai vide their letter SBD:AND:343 dated 15.02.2000 CDOPM:CIR:10 dated 02.06.99 and SBD:RKG:2894 dated 04012001 as follows :
1) As a rule, sealed cover procedure can not be applied in cases where departmental action is contemplated.
Sealed cover procedure in regard to contemplated case may be resorted to in exceptional circumstances only, where the offence/misconduct is of a grave nature and glaring on the facts of the case. A decision regarding what constitutes "exceptional circumstances" has to be taken by the Promoting Authority on the basis of submission/ recommendations of the disciplinary authority.
2) Disciplinary Authority shall issue the chargesheet after recording a decision to initiate disciplinary action within a maximum period of 8 weeks from the date of such decision.
Except for the above modifications, the other extant instructions from the department policy/ sealed cover procedure remain unchanged. We propose to implement the above guidelines/modifications in our bank.
Submitted to the Executive Committee for approval of modifications in the sealed cover procedure as proposed."
6. From the above, it can be seen that the bank agrees that Page 6 of 10 HC-NIC Page 6 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT sealed cover procedure can be applicable only after issuance of chargesheet i.e. the date from which the disciplinary or criminal proceedings can be said to have been initiated. It was therefore, decided that such procedure would be adopted only in case of officers against whom chargesheet has been issued in a disciplinary case or criminal prosecution has been launched in the Court of law or if an officer has been placed under suspension. In case of the petitioner these requirements were not fulfilled. His case therefore, could not have been kept in sealed cover.
7. The bank has however, sought to contend that the decision was already taken. Mere service of chargesheet was a procedural delay. Such stand cannot be accepted for multiple reasons. Firstly, no such formal decision, as stated to have been taken, is placed on record. The reference to the internal file noting dated 22.1.2001 is wholly redundant. It only shows that for certain alleged misconduct, explanation of the petitioner was called and the petitioner had replied. The office notings records that "Now I submit herewith the list of charges levelled, their replies received and our observations in TABULAR FORMAT for necessary actions in the matter". This note covered not only the petitioner but couple of other officers as well. On this note, the authority has put remarks as under :
"Reference be made to CVC for 1st stage advise through vigilance department"
8. This noting was made on 29.3.2001. Till that date there Page 7 of 10 HC-NIC Page 7 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT was therefore, no formal decision of the management to issue chargesheet to the petitioner. The authorities found it appropriate to call for remarks of the vigilance department. Even if this implies the seriousness on part of the department to conduct inquiry against the alleged misconduct, same cannot take shape of chargesheet. Term 'chargesheet' connotes a definite meaning in service jurisprudence and would contain specific charges. Mere decision to initiate the proceedings cannot take the form of a chargesheet. I am not unmindful of the decision of the Supreme Court in case of Delhi Development Authority v. H.C. Khurana reported in AIR 1993 Supreme Court 1488 in which the term 'issued' in context of issuance of chargesheet for withholding of promotion of an employee came up for consideration. It was held that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the chargesheet, since issue of the charge sheet is consequential to filing disciplinary proceedings. Framing the chargesheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The chargesheet is framed on the basis of the allegations made against the government servant. The chargesheet is then served on him to enable him to give his explanation. The service of the chargesheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. It was held that the delay, if any, in service of the chargesheet to the Government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, since information to the Page 8 of 10 HC-NIC Page 8 of 10 Created On Thu Jan 14 02:06:13 IST 2016 C/SCA/14783/2003 JUDGMENT Government servant of the charges framed against him, by service of the chargesheet, is not a part of the decision making process of the authorities for initiating the disciplinary proceedings. It was held that issue of the chargesheet in the context of a decision taken to initiate the disciplinary proceedings must mean the framing of the chargesheet and taking of the necessary action to despatch the chargesheet to the employee to inform him of the charges framed against him requiring his explanation. It would not include further fact of service of the charge sheet on the employee.
9. Facts in the present case are vitally different. No charge sheet was framed or issued, leave alone, served to the petitioner. In view of decision of the Supreme Court in case of K.V. Jankiraman(supra), which was later on reiterated and followed in large number of cases and lastly in case of (The) Union of India & ors. v. Anil Kumar Sarkar reported in 2013(1) GLH 792 and in view of revised policy of the bank to bring its sealed cover procedure in tune with decision of Supreme Court in case of K.V. Jankiraman(supra), I have no hesitation in holding that the bank was clearly wrong in keeping the recommendations of the said two DPCs in case of the petitioner in a sealed cover. The respondent shall therefore, open the sealed covers and act in terms of such recommendations. In other words, if the petitioner is found to be suitable for promotion in either of the two recommendations, the bank shall give effect to the same from the due date with all consequential benefits including that of difference in salary.
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10. The petition is allowed and disposed of.
(AKIL KURESHI, J.) raghu Page 10 of 10 HC-NIC Page 10 of 10 Created On Thu Jan 14 02:06:13 IST 2016