CIVIL WRIT JURISDICTION CASE No.2981 OF 1997 ------------ In the matter of an application under Articles 226 and 227 of the Constitution of India. ------------ Sri Santosh Kumar Jha „Rakesh‟, son of late Kedarnath Jha, Branch Manager(s), Central Bank of India, Hatni Branch, Madhubani (Bihar) ----- Petitioner. Versus 1. Central Bank of India, through General Manager, Central Office, Chandramukhi Building, Nariman Point, Mumbai. 2. The Zonal Manager, Central Bank of India, Zonal Office near Jubba Sahni Park Muzaffarpur (Bihar) 3. The Regional Manager, Central Bank of India, Regional Office, Allalpatti, Laheriya Sarai, Darbhanga (Bihar) ------- Respondents. -------------- For the Petitioner : Mr. Yugal Kishore, Sr.Advocate, Mr. Subhash Chandra Jha, Advocate & Mr. Sachindra Kumar Tiwari, Advocate. For the Respondents: Mr. Ajay Kumar Sinha, Advocate, Mr. Krishna Ranjan, Advocate & Mr. Suman Kumar Jha, Advocate. ------------ P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S.K.Katriar,J. This writ petition is directed against the order dated 15.7.1987 (Annexure-1), passed by the respondent Central Bank of India, whereby it was conveyed to the petitioner that he has become suitable for promotion, but is being withheld because of serious irregularities committed by him, and in contemplation of a departmental proceeding. The respondents have placed on record their counter affidavits. 2. This matter was originally laid before a learned 2 Single Judge of this Court who disagreed with an earlier judgment dated 18.4.1989, of another Single Judge of this Court, passed in C.W.J.C. No. 8719 of 1988 (Madan Mohan Tripathi Vrs. The Central Bank of India & Ors.), interpreting the same provision of the promotion policy as in the instant case. While interpreting paragraph 3.9 of the promotion policy of the respondent Bank, it has been held there that an employee can not be deprived of promotion before initiation of a departmental proceeding. It has further been held that initiation of a departmental proceeding commences with the service of charge-sheet. On the contrary, learned Single Judge in the instant case has disagreed with the view taken in C.W.J.C. No.8719 of 1988, and is of the opinion that initiation of departmental proceeding, in view of paragraph 3.9 of the promotion policy of the respondent Bank, commences when the decision is taken by the Bank to initiate departmental proceeding. In view of the difference of opinion, the learned Single Judge has referred the present matter to the Division Bench to resolve the conflict of views. That is how the matter has come up before us for our decision. 3. A brief statement of facts essential for the disposal of this writ petition may be indicated. The petitioner was appointed as a clerk in the respondent Bank on 6.7.1967. During the period 1980-83, he was posted as Branch 3 Manager at Rahua, Sarairanjan and Koilasthan Branches. His turn for consideration for promotion occurred in 1987. He was indeed considered for promotion, was perhaps found fit for promotion, but not given promotion in view of the contemplated departmental proceeding because of irregularities allegedly committed by him while working at Rahua, Sarairanjan and Koilasthan branches. The Bank issued the letter dated 15.7.1987 (Annexure-1), to that effect, and impugned herein. This was followed by service of memo of charges on 31.10.1987 (Annexure-2), on him. The learned Enquiry Officer submitted his report, and the learned disciplinary authority awarded punishment by the order dated 1.11.1991, whereby the following punishment was inflicted on him: “Reduction of two stages in the time scale as per Regulation 4(e) of Central Bank of India Officer Employees (DCA) Regulations-1976.” It may be stated for the sake of completion of the record that the quantum of punishment was enhanced by the learned appellate authority. However, the learned reviewing authority, by his order dated 10.1.1995 (Annexure-4), restored the punishment imposed by the learned disciplinary authority. 3.1. In view of the order of punishment, the petitioner has been deprived of promotion till his superannuation in 2003. The Bank took the decision to deprive him of 4 promotion because of its policy decision to the effect that an employee punished in pursuance of a departmental proceeding shall not be considered for promotion for a period of three years from the date of order of punishment. In so far as the petitioner is concerned, the net result is that he has been deprived of promotion since 1987, till the date of his superannuation in 2003. Hence this writ petition. 4. The present matter was taken up by a learned Single Judge of this Court. Learned counsel for the parties relied on paragraph 3.9 of the promotion policy, and is reproduced hereinbelow:- “Officers in respect of whom disciplinary action is in process, will however, be permitted to take part in the promotion process, subject to the condition that the promotion will be withheld until the completion of the disciplinary action. In the event of the officer being exonerated, the promotion, if due, will be given effect from the date on which it would have been otherwise effected but for the disciplinary action.” 4.1. Learned Single Judge is of the view that the expression “disciplinary action is in process”, includes the decision taken by the employer to initiate a departmental proceeding against an employee. Learned counsel for the petitioner, however, relied on the judgment dated 18.4.1989 (Annexure-7), of another learned Single Judge of this Court passed in C.W.J.C. No. 8719 of 1988, which was preferred by an employee of the Central Bank of India. Interpretation 5 of the same paragraph 3.9 of the promotion policy of the respondent Bank fell for consideration in said C.W.J.C. No.8719 of 1988. The same was allowed by judgment dated 18.4.1989, wherein U.P. Singh, J. held that the process of departmental proceeding will be deemed to have commenced from the date of service of the charge-sheet. In view of the difference of opinion, the present matter has been referred by order dated 14.5.1998, for the consideration of the Division Bench. 5. Learned counsel for the petitioner submits that no employee can be deprived of promotion unless charge-sheet has been served on him. He relies on the judgment passed in C.W.J.C. No. 8719 of 1988. He also relies on the judgment of another learned Single Judge of this Court in John Seraphin Vs. The State Bank of India and other, 2005 (1) P.L.J.R. 354. In his order of reference, A.K. Ganguly, J. has relied on the following judgments: (i) Collector Central Excise Jaipur Vs. Rajsthan State Chemical Works, A.I.R. 1991 S.C. 2222 (Paragraph 14). (ii) Delhi Development Authority Vs. H.C. Khurana, A.I.R. 1993 SC 1488. 6. Learned counsel for the Bank submits that the process of departmental proceeding may be deemed to have commenced on the date of the alleged occurrence which is the subject matter of the departmental proceeding, otherwise the employer will have no protection against the dishonest 6 and recalcitrant approach of its employees. 7. We have perused the materials on record and considered the submissions of learned counsel for the parties. We entirely agree with the submission of learned counsel for the Bank that, in a situation like the present one, the process of departmental proceeding may be traced back to the date of the alleged occurrence, otherwise the employer may have no protection against the dishonest and/or recalcitrant approach of its employees. The problem for the employer becomes more difficult in a situation like the present one where there is no provision comparable to Rule 43(b) of the Bihar Pension Rules which enables action against a retired employee. In other words, unless we put a construction on paragraph 3.9 of the promotion policy in the manner suggested by learned counsel for the Bank, the file/records containing the irregularities may lie hidden in the file being dealt with by the employee of the Bank who is the keeper of the record in collusion with the proceedee, and the matter will be come to an end with his retirement. We are of the view that the expression „disciplinary action is in process‟, occurring in paragraph 3.9 of the promotion policy, can be traced back to the date of the alleged occurrence. 8. In so far as the facts and circumstances of the present case are concerned, it appears to us from a perusal of the order of the disciplinary authority that the irregularities has 7 been proved to have been committed way-back in 1980-83. We are, therefore, of the view that the petitioner can be deprived of promotion with respect to the occurrence of 1980, even though those were detected at a later stage. The departmental proceeding commenced later on. We are at present dealing with a situation where the employee was found fit for promotion before it could be detected, and charge-sheet had not been framed against the employee till then. In the instant case, irregularities were detected and the decision to initiate a departmental proceeding was taken before the order of promotion was issued to him. We are, therefore, of the view that Bank is justified in depriving the petitioner of promotion even though he was found fit in 1987. In fact, the decision to initiate departmental proceeding was taken at the point of time he was found fit for promotion. The first question is answered against the petitioner. 9. There is yet another aspect of the matter. Learned counsel for the petitioner has taken us through the order of punishment. We reproduce hereinbelow the findings leading to the order of punishment: “ Charge No.1. I find that it is conclusively proved during the enquiry that the CSO extended undue favour to M/S Mishra Bricks by resorting to serious irregularities. But here I find some substance in CSO’s plea that in view of peak business session a temporary O/D of Rs.3,000/- only was allowed to the borrower before formal sanction of loan. Considering 8 this plea though charge being very serious showing leniency. Charge No. 2. In charge No.2, I find that it is proved during the enquiry that contrary to Bank’s norms some loanees were made guarantors in respect of the loans. It is also confirmed that CSO allowed advance to close relatives and family members of the same family. Defence could not provide any valid evidence in their favour and I find that this charge has been conclusively proved during the enquiry. Therefore, I concur with IA’s findings and award following punishment to the CSO:- “Reduction by one step in the time scale.” Charge No.3. This charge has been conclusively proved during the enquiry. The defence could not produce any evidence of having obtained any verbal of any otherwise sanction for CSO’s getting medical aid reimbursement while it is clear that there was no sanction for the same. Therefore, I agree with the IA’s finding and conclude that he not reimbursed his medical aid without sanction and therefore award penalty of “Stoppage of one increment in time again”. Charge No.4. It is clearly proved that CSO purchased furniture for his residence without sanction from competent authority. The defence could not produce any concrete evidence in this favour therefore in absence of any evidence from defence I fully agree with the IA’s conclusion in holding this charge as proved and therefore award penalty of stoppage of one increment in the time scale for this charge. In view of foregoing I(is not CSO guilty for all the four charges and therefore, has awarded penalties to him for all the 4 charges I award following consolidated punishment to him:- “Reduction of two stages in the time scale as per Regulation 4(e) of Central Bank of India Officer Employees (DCA Regulations- 1976”.” 9.1. It appears to us on a perusal of the findings of the disciplinary authority that the charges are not grave enough 9 to deprive the petitioner of promotion till his retirement. In so far as the finding on charge no.1 is concerned, it is doubtful whether or not this can be taken to be really an irregularity committed by the petitioner, let alone a serious irregularity. The petitioner, in the capacity of the Branch Manager, had allowed temporary over-draft of a small amount of Rs.3,000/-, three weeks prior to the date of actual sanction. It can well be contended on behalf of the petitioner that this was a prudent business measure to keep its constituents happy in the good sense of the term so that the borrower‟s business does not suffer because of lack of requisite financial support at the appropriate time. Had the learned disciplinary authority come to the conclusion that a big amount was allowed to be withdrawn, an amount bigger than the order of sanction, the situation may have been different. It appears to us that it is doubtful whether the finding on charge no.1 amounts to irregularity at all. 9.2. In so far charge no.2 is concerned, it appears to us to be an irregularity in view of the policy decision of the Bank. The question whether or not a loanee can be permitted to be the guarantor with respect to the loan taken by his relative. The policy decision is based on the Bank‟s experience. After all Mr. Justice Oliver Wendell Holmes, Jr. of the U.S. Supreme Court observed way-back in 1881 in his classic entitled „The Common Law‟, that “ The life of the law has 10 not been logic: it has been experience.” Therefore, we agree with the view taken by the learned disciplinary authority that the finding with respect to charge no.2 was an irregularity, may be a serious one depending on the perception of the Bank. 9.3. In so far as charge nos.3 and 4 are concerned, the learned disciplinary authority has not recorded the requisite finding that the petitioner was not entitled to medical reimbursement, or furniture for his residence. Had the learned disciplinary authority recorded the finding that the petitioner was not entitled to any one or both of the facilities, notwithstanding which the petitioner had availed of the same, it would have been a serious matter. In the absence of such a finding, availing the facility in anticipation of approval of the competent authority seems to be a mere irregularity, fit to be ignored. 9.4. To summarise the position, the combined effect of the findings of the learned disciplinary authority appears to us to be that he had engaged himself in one irregularity of some consequence, and the remaining were of no consequence. We must clearly state that the order of punishment has attained finality, and is not the subject matter of adjudication before us. We have examined the same in detail to appreciate the extent of culpability of the petitioner. We have attempted to appreciate for our 11 understanding the gravity of the proven charges with the limited purpose of disposal of the present writ petition. In other words, the petitioner was not guilty of any act of dishonesty, indiscipline, nor had caused loss to the Bank. We, therefore, conclude that the respondent Bank was justified in depriving the petitioner of promotion way-back in 1987. 10. There is yet another aspect which remains to be considered. In view of the findings recorded, and the punishment inflicted, by the learned disciplinary authority, can the petitioner be deprived of his promotion till his retirement? Our task has been made easier on a perusal of paragraph 3.9 of the policy decision of the respondent Bank which is relevant in the present context and forms part of the counter affidavit of the respondent Bank. The same is reproduced hereinbelow: “3.8. Officers in respect of whom disciplinary action has been taken in the past would not normally be permitted to participate in the promotion process for a period of 3 years from the time of infliction of the punishment. In cases, however, where minor penalties have been inflicted, a committee of Executives at Central Office would review and take a decision in regard to the eligibility for promotion, having regard to the gravity of the misconduct and subsequent service record.” It is evident on a perusal of the policy decision that an employee can not be considered for promotion for a period 12 of three years from the date of punishment. In the instant case, the order of punishment passed by the learned disciplinary authority is dated 1.11.1991. He superannuated from the services of the respondent Bank in 2003. We are of the view that the petitioner has been sufficiently punished since 1987. It will meet the ends of justice, if we direct that the petitioner shall, adding the locking period of three years, be entitled to promotion with consequential benefits with effect from 1.11.1994. 11. In the result, the writ petition is allowed to the extent indicated above with consequential benefits including post- retirement benefits provided the same is paid within a period of four months from today, failing which the entire arrears shall carry interest @ nine percent from the dates the amounts became due till the date of payment. However, we do not pass any order for payment of interest on the arrears. In the facts and circumstances of the case, there shall be no order as to costs. B.P. Verma, J. I agree. High Court Patna, Dated 23rd September, 2010. Vinay/ A.F.R. ( S. K. Katriar,J. ) (Birendra Prasad Verma, J.)