IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 20.07.2011 Coram THE HONOURABLE MR.JUSTICE K.CHANDRU W.P.Nos.10098 & 15734 of 2009 and 20141 of 2010 & connected M.Ps V.Ramesh ... Petitioner in all W.Ps v. 1.The General Manager UCO Bank, Personnel & IR Management Department (H.O.) DD Block, Sector 1, Salt Lake Kolkatta – 700 064. ... 1st Respondent in WP. Nos.10098 & 15734/09* 2.The Deputy General Manager Zonal Office 328, Thambu Chetty Street Chennai – 600 001. ...2nd Respondents in all W.Ps The General Manager,* Zonal Office UCO Bank, 328, Thambu Chetty Street, Chennai - 600 001. .. 1 st Respondent in WP.No. 20141/10* W.P.No.10098/2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified Mandamus, calling for the records of the second respondent herein pertaining to his proceedings vide letter bearing No.SF/GEN/1213/2009 dated 24.4.2009 and quash the same in so far as the petitioner is concerned and consequently direct the respondents to forthwith implement the original order of promotion made by the first respondent herein vide circular No.CHO/POS/03/2007-08 dated 22.5.2007 with retrospective effect. W.P.No.15734/2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified Mandamus, calling for the records of the respondents pertaining to the proceedings bearing NO.PSD/DISC/NJ/2009/2230 dated 7.7.2009 and quash the same in so far as the petitioner is concerned and consequently direct the respondents to release the withhold increment and continue to sanction the regular increment. https://hcservices.ecourts.gov.in/hcservices/ W.P.No.20141/2009 is preferred under Article 226 of the Constitution of India praying for the issue of a writ of Certiorarified Mandamus, calling for the records of the second respondent herein pertaining to his proceedings vide Order No.IR/53/2010 dated 10.8.2010 transferring the petitioner from Theni to Dindugal and quash the same in so far as the petitioner's case is concerned and consequently direct the respondents to retain the petitioner either at Theni where he is presently working or transfer him to Madurai Branch except Dindugal Branch within Tamil Nadu. For Petitioner : Mr.T.K.Kulasekaran For Respondents: Mr.Srinath Sridevan C O M M O N O R D E R The petitioner in all these three writ petitions is one and the same person. The first writ petition is filed by the petitioner challenging an order of the respondent Bank dated 24.04.2009, wherein and by which, he was informed that his promotion to the post of MMGS-III (Middle Management Grade Scale III) cannot be considered in the light of the light of the existing guidelines of the Bank/Government. He also sought for consequential direction to implement the order of promotion dated 22.05.2007. 2. It transpires that before filing the present writ petition, the petitioner had filed several writ petitions and contempt petitions. By an order dated 17.06.1998, the petitioner's services were terminated. He filed a writ petition before this Court being W.P.No.8690 of 1998, challenging the order of termination. He also sought for an interim stay of the order, which was also granted by this Court. When he found that the said order was not obeyed, he filed contempt petition No.402 of 1998. The writ petition and the contempt petition were heard together and this Court by an order dated 22.12.1998 allowed the writ petition and directed re- instatement with continuity of service and attendant benefits. But with reference to the contempt petition, the Court found that the respondents had not committed any contempt. Therefore, the contempt petition was dismissed. The said decision dated 22.12.1998 came to be subsequently reported in 2002(2)L.W.128. 3. Aggrieved by the said order, the respondent Bank filed a writ appeal being W.A.No.445 of 1999. In the meanwhile, the petitioner filed W.P.No.757 of 1997, seeking for a direction to the respondents, not to act upon the report sent by the Revenue Divisional Officer, Devakottai and also to confirm his appointment with retrospective effect and to consider him for promotion to the next grade in the Bank. The writ appeal as well as the writ petition came to be heard by a Division Bench. The Division Bench by a final order dated 09.09.2003 dismissed the writ appeal and closed the writ petition. https://hcservices.ecourts.gov.in/hcservices/ 4. Since the order of the Division Bench was not implemented, the petitioner again filed a contempt petition being Cont.P.No.354 of 2004. The Division Bench held though there was no contempt, but nevertheless ordered costs of Rs.1,00,000/-, which was in turn was agreed to be remitted to the Coastal Calamity Fund of the Tamil Nadu State Government on the consent of the counsel for the petitioner. 5. It was after the disposal of these proceedings, the petitioner was promoted from the post of MMG Scale II to MMG Scale III by proceedings dated 22.05.2007. The name of the petitioner is found in the Annexure as Sl.No.78 and it was issued by the General Manager P & IRM Department, Kolkata from the Kolkata Office. But in the same communication, the branches and sub-ordinate officers were informed as follows:- "Branches/Offices are requested to note that the above promotions are subject to the fact that the concerned officers are not suffering from any disqualifications owing to pendency of charge-sheet and/or criminal prosecution against them or any wrong declaration furnished by them." 6. Even before the order could be issued to the petitioner, he was placed under suspension by an order dated 19.05.2007. Therefore, the promotion order was not given effect to. Pursuant to the suspension, the petitioner was issued with charge memo dated 23.01.2008 alleging certain irregularities, omissions and commissions committed by him, while he was functioning as Manager of Navinipatti Branch from 11.08.2005 to 18.05.2007. Subsequent to the explanation furnished by the petitioner, an enquiry was conducted in terms of UCO Bank Officer Employees' (Discipline & Appeal) Regulations, 1976. The enquiry was conducted by the Senior Manager, Tiruchirapalli Main Branch. In the enquiry report, it was found that while allegations 1(a), 1(c) and 2 to 4 were proved and allegation 1(b) alone was held partially proved. 7. On the basis of the proved minutes of the enquiry report, the Disciplinary Authority agreed with the report of the Enquiry Officer and the petitioner was imposed with the penalty of reduction in one stage in the time scale of pay for a period of two years for the first Article of Charge and for the Second Article of Charge, he was again imposed with another penalty of reduction in one stage in the time scale of pay for a period of two years. It was also stated that during the period of punishment, he will not earn increments on pay during the reduction and such reduction will have the effect of postponing the future increments. It was also stated that during the suspension period, he was not entitled to any Pay and Allowances except what was already paid to him and drawn by him as subsistence allowance. https://hcservices.ecourts.gov.in/hcservices/ 8. It was the case of the petitioner that during this period, he was continued to be designated as MMG Scale - III and was also transferred from one station to another station describing him as Officer in MMG Scale- III. Therefore, all of a sudden, by the impugned order dated 24.04.2009, it was informed that he will not be given the promotion to MMG Scale-III and that the same cannot be accepted. 9. When the writ petition came up on 10.06.2009, notice was directed to be issued to the Bank and an interim stay was granted. The interim order granted for a limited period was extended from time to time. Subsequently, the writ petition was admitted on 21.12.2009. The interim stay granted was also made absolute on 21.12.2009. 10. On notice from this Court, the respondents have filed a counter affidavit dated 17.08.2009. For the first time in the counter affidavit, it was stated that the letter written by the Chief Officer dated 12.03.2009 describing the petitioner as the Officer having MMG Scale-III was not valid. Though his name was included in the list of circular dated 22.05.2007, he continued only in the scale-II post and was paid only the Scale-II Officer's salary. It was further submitted that the petitioner cannot take advantage of the letter of communication sent by the Chief officer dated 12.03.2009. They also referred to the guidelines of the Government for promoting an officer and the guidelines dis- entitled a Government Servant under suspension from getting promoted. 11. Even when that writ petition was pending, the petitioner filed the second writ petition, being W.P.No.15374 of 2009 challenging the order dated 07.07.2009 issued by the Bank. By the said order, the petitioner was informed that his appeal preferred against the punishment order dated 15.12.2008 pursuant to the charge memo dated 23.01.2008 cannot be entertained as the appeal was received by the Bank only on 09.05.2009. Since under Regulation 17(1) of UCO Bank Officer Employees' (Discipline and Appeal) Regulations, 1976, the appeal was not preferred within 45 days, it was dismissed without going into the merits of the case by the Appellate Authority. Challenging the same, the writ petition came to be filed. In that writ petition, initially private notice was ordered. Subsequently, the writ petition was admitted on 21.12.2009 and posted along with the previous writ petition. 12. On notice from this Court, a counter affidavit dated 23.11.2009 was filed. In the counter affidavit, it was stated that when the Regulation provides a time limit, the petitioner should have been preferred the appeal within the time and his plea was considered by the Appellate Authority and was rejected. Therefore, there was no case for interfering with the order of the Appellate Authority. 13. The petitioner, thereafter, had come forward to file the third writ petition, being W.P.No.20141 of 2010 challenging an https://hcservices.ecourts.gov.in/hcservices/ order dated 10.08.2010, wherein and by which, he was transferred from being Senior Manager(BM) Scale III at Theni Branch to Dindigul branch. The petitioner sought to set aside the said other with a consequential direction to retain him either at Theni Branch or to Madurai Branch except to Dindigul Branch. 14. In that writ petition, notice of motion was ordered and interim stay was also granted on 03.09.2010. Subsequently, on 24.09.2010, the interim stay was extended until further orders. 15. An application was filed by the Bank in M.P.No.1 of 2011, seeking to vacate the said order together with supporting affidavit dated 15.02.2011. 16. In view of the interconnectivity among the three writ petitions, they were heard together and a common order is passed. 17. In W.P.No.10098 of 2009, i.e., the first writ petition, the petitioner was informed that his promotion granted to MMG Scale-III cannot be considered in the light of the guidelines of the Bank and the Government. It has to be seen whether such a contention will apply to the case of the petitioner. It is an accepted fact that the petitioner was promoted by proceedings dated 22.05.2007. In that order itself, it was stated that the promotions are subject to the fact that concerned officers are not suffering from any dis-qualifications owing to pendency of charge sheet and/or criminal prosecution against them or any wrong declaration furnished by them. In the present case, on the date of the said promotion order, the petitioner was only kept under suspension by proceedings dated 19.05.2007 which was issued three days prior to the promotion list. It is also an admitted case that charge memo was framed only on 23.01.2008. Therefore, it cannot be said that there was a charge sheet pending against the petitioner on the day of the promotional order. Further, as seen from the documents produced by the petitioner, the Chief Officer of the Zonal Office while addressing the petitioner by communication dated 12.03.2009 wherein the petitioner was deputed to the Rajapalayam Branch, he was described as Officer in MMG Scale III. Similarly, the Manager of the Rajapalayam Branch in his communication dated 19.03.2009, had addressed the petitioner as Officer in MMGS-III. Even after the order of transfer dated 10.08.2010, the petitioner continued to hold the post as Senior Manager in Scale III as set out. Though the order dated 10.08.2010 was during the pendency of the petitioner having interim order, the other two orders describing him as having Scale III post cannot be denied. 18. However in the counter affidavit filed dated 17.08.2009 in W.P.No.10098 of 2009, a feeble attempt was made to show that even though the circular dated 22.05.2007 was never implemented, the petitioner had not challenged the non-implementation of the circular. The Chief Officer had no right to send such a communication describing him as Officer holding Grade III post. The letter written by him was a mistake and either it was a mistake or there was any collusion, the Bank is investigating the same. https://hcservices.ecourts.gov.in/hcservices/ Further, it was contended that the Governments guideline regarding promotion will apply and the gist of the guidelines was set out in the counter affidavit in paragraph 5. 19. The respondent Bank had nowhere indicated that the substance of the Government guidelines has been incorporated as part of their statutory regulation made under the power vested on them by the Bank Nationalisation Act. On the contrary, in the promotion circular, they had only referred to the pendency of the charge sheet or a criminal prosecution. Both are absence in the case of the petitioner. The respondents cannot suddenly bring in the Government Guidelines in the matter of effecting promotion of bank officers. 20. A Full Bench of this Court in Deputy Inspector General of Police, Thanjavur Range, Thanjavur v. V.Rani reported in 2011 3 CTC 129 has held that the Government Guidelines are not statutory rules framed under the proviso to Article 309 of the Constitution and cannot be read as part of the statutory rules. Therefore, unless and until, a charge sheet is issued, it cannot be said that disciplinary proceedings is pending against the Bank officer. 21. In this context, it is necessary to refer to the judgment of the Supreme Court in Union of India v. K.V. Jankiraman reported in (1991) 4 SCC 109. The following passages found in paragraphs 16 and 17 may be usefully extracted: "16. On the first question, viz., as to when for the purposes of the 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 charge-sheet in a criminal prosecution is 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 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 the experience so far, the preliminary investigations take an inordinately long time and particularly when they are initiated at the instance of the interested https://hcservices.ecourts.gov.in/hcservices/ 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 should 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. 17. There is no doubt that there is a seeming contradiction between the two conclusions. But read harmoniously, and that is what the Full Bench has intended, the two conclusions can be reconciled with each other. The conclusion No. 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. Thus read, there is no inconsistency in the two conclusions." 22. Though subsequent to K.V.Jankiraman's case (cited supra), the Central Government amended the Office Memorandum by an order dated 14.09.1992, even that amended Memorandum came to be considered by the subsequent judgment in Delhi Development Authority v. H.C. Khurana reported in (1993) 3 SCC 196. The following passages found in paragraphs 4,5,8,9,11 reads as follows:- "4. Para 2 is the relevant portion in these memoranda. In O.M. dated January 12, 1988, para 2 is as under: “Cases of government servants to whom Sealed Cover Procedure will be applicable 2. At the time of consideration of the cases of government servants for promotion, details of government servants in the consideration zone for promotion falling under the following categories should be specifically brought to the notice of the Departmental Promotion Committee: (i) Government servants under suspension; (ii) Government servants in respect of whom disciplinary proceedings are pending or a decision has been taken to initiate disciplinary proceedings; (iii) Government servants in respect of whom prosecution for a criminal charge is pending or sanction for prosecution has been issued or a https://hcservices.ecourts.gov.in/hcservices/ decision has been taken to accord sanction for prosecution; (iv) Government servants against whom an investigation on serious allegations of corruption, bribery or similar grave misconduct is in progress either by the CBI or any other agency, departmental or otherwise.” (emphasis supplied) 5. The substituted clause (ii) in para 2, in O.M. dated September 14, 1992, is as under: “(ii) Government servants in respect of whom a charge-sheet has been issued and the disciplinary proceedings are pending; and” (emphasis supplied) 8. These words clearly indicate that the sealed cover procedure was applicable, in cases where the ‘disciplinary proceedings are pending’ in respect of the government servant; or ‘a decision has been taken to initiate disciplinary proceedings’. Thus, on a decision being taken to initiate disciplinary proceedings, the guidelines attract the sealed cover procedure. The reason is obvious. Where a decision has been taken to initiate the disciplinary proceedings against a government servant, his promotion, even if he is found otherwise suitable, would be incongruous, because a government servant under such a cloud should not be promoted till he is cleared of the allegations against him, into which an inquiry has to be made according to the decision taken. In such a situation, the correctness of the allegation being dependent on the final outcome of the disciplinary proceedings, it would not be fair to exclude him from consideration for promotion till conclusion of the disciplinary proceedings, even though it would be improper to promote him, if found otherwise suitable, unless exonerated. To reconcile these conflicting interests, of the government servant and public administration, the only fair and just course is, to consider his case for promotion and to determine if he is otherwise suitable for promotion, and keep the result in abeyance in sealed cover to be implemented on conclusion of the disciplinary proceedings; and in case he is exonerated therein, to promote him with all consequential benefits, if found otherwise suitable by the Selection Committee. On the other hand, giving him promotion after taking the decision to initiate disciplinary proceedings, would be incongruous and against public policy and principles of good administration. This is the rationale behind the guideline to follow the sealed cover procedure https://hcservices.ecourts.gov.in/hcservices/ in such cases, to prevent the possibility of any injustice or arbitrariness. 9. The question now, is : What is the stage, when it can be said, that ‘a decision has been taken to initiate disciplinary proceedings’? We have no doubt that the decision to initiate disciplinary proceedings cannot be subsequent to the issuance of the charge-sheet, since issue of the charge-sheet is a consequence of the decision to initiate disciplinary proceedings. Framing the charge-sheet, is the first step taken for holding the enquiry into the allegations, on the decision taken to initiate disciplinary proceedings. The charge-sheet is framed on the basis of the allegations made against the government servant; the charge-sheet is then served on him to enable him to give his explanation; if the explanation is satisfactory, the proceedings are closed, otherwise, an enquiry is held into the charges; if the charges are not proved, the proceedings are closed and the government servant exonerated; but if the charges are proved, the penalty follows. Thus, the service of the charge- sheet on the government servant follows the decision to initiate disciplinary proceedings, and it does not precede or coincide with that decision. The delay, if any, in service of the charge-sheet to the government servant, after it has been framed and despatched, does not have the effect of delaying initiation of the disciplinary proceedings, inasmuch as information to the government servant of the charges framed against him, by service of the charge-sheet, is not a part of the decision-making process of the authorities for initiating the disciplinary proceedings. 11. The decision in Jankiraman1 is based, inter alia, on O.M. dated January 12, 1988. The facts of the cases dealt with in the decision in Jankiraman1 do not indicate that the Court took the view, that even though the charge-sheet against the government servant was framed and direction given to despatch the same to the government servant as a result of the decision to initiate disciplinary proceedings taken prior to the meeting of the DPC, that was not sufficient to attract the sealed cover procedure merely because service of the charge-sheet was effected subsequent to the meeting of the DPC. Moreover, in Jankiraman1 itself, it was stated thus: (SCC pp. 117-18) “14. To bring the record up to date, it may be pointed out that in view of the decision of this https://hcservices.ecourts.gov.in/hcservices/ Court in Union of India v. Tejinder Singh2 decided on September 26, 1986, the Government of India in the Department of Personnel and Training issued another office memorandum No. 22011/2/86. Estt. (A), dated January 12, 1988 in supersession of all the earlier instructions on the subject including the office memorandum dated January 30, 1982.... A further guideline contained in this memorandum is that the same sealed cover procedure is to be applied where a government servant is recommended for promotion by the DPC, but before he is actually promoted, he is either placed under suspension or disciplinary proceedings are taken against him or a decision has been taken to initiate the proceedings or criminal prosecution is launched or sanction for such prosecution has been issued or decision to accord such sanction is taken. 15. These differences in the two memoranda have no bearing on the questions to be answered.” (emphasis supplied) 23. It is also not the stand of the respondent Bank that they are having a sealed cover procedure as adopted by the Central Government in relation to their service. Therefore, this Court having not satisfied about the issuance of the charge memo before the promotion panel was released, the respondent cannot contend that promotion order did not come into effect. 24. As rightly contended by Mr.T.K.Kulasekaran, that the argument of the Bank that they cannot consider the promotion panel dated 22.05.2007 especially when they have given effect to the order in respect of as many as 190 officers and only in the case of the petitioner, it was not given effect to also cannot be accepted. If the respondent Bank wants to deny a promotion after the panel was released, they should pass a specific order keeping that order in abeyance and must give reasons for the same. The order which is impugned came to be