1 hvn IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. 1614 OF 2008 WRIT PETITION NO. 1614 OF 2008 WRIT PETITION NO. 1614 OF 2008 Desikan Nanda Kumar, of Mumbai Indian Inhabitant, residing at D-501, Anand Garden CHSL, Anand Park, Kandarpada, Dahisar (W), Mumbai 400 068. ... Petitioner Versus 1. Dena Bank, a Banking Company registered under the Banking Companies Regulation Act and having its registered office at C-IO, G Block, Dena Corporate Centre Bandra Kurla Complex, Bandra (E), Mumbai 400 051. 2. The Chairman & Managing Director, Dena Bank, C-IO, G Block Dena Corporate Centre, Bandra Kurla Complex, Bandra (E), Mumbai 400 051. ... Respondents Ms. Shobhana Gopal for the Petitioner. Mr. Ashok Shetty with Ms. Rita K.Joshi for Respondents. CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & CORAM: F.I. REBELLO, & A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. A.A. KUMBHAKONI, JJ. DATED: OCTOBER 01, 2008 DATED: OCTOBER 01, 2008 DATED: OCTOBER 01, 2008 ORAL JUDGMENT (Per F.I. Rebello,J.) : ORAL JUDGMENT (Per F.I. Rebello,J.) : ORAL JUDGMENT (Per F.I. Rebello,J.) : 1. Rule. Heard forthwith. 2. The Petitioner is in the service of Respondent No. 1 Bank. He had joined the services of Respondent No. 1 Bank as a clerk on 24.11.1971 and was promoted as an Officer in Grade JMGS-I on 1.6.1981. During the period 1985-89 the Petitioner 2 was working as an Officer in the Centralized Foreign Exchange department and in the course of his duties was required to handle and scrutinize various documents pertaining to exports forwarded by other branches of the 1st Respondent across the country drawn under Letters of Credit (LC). Apart from that the Petitioner was also entrusted with the other duties. According to Petitioner in the year 1987, certain irregularities were detected in the account of one Manish Group of Industries, a constituent of the Respondent’s Worli Branch. The irregularities concerned some forged bills being submitted by the constituent at Worli branch under the category of Non LC documents being Bills of Lading. The CBI conducted investigation and prima facie came to a conclusion that irregularities were committee and there was involvement of the officers and employees of first respondent. A sanction was given to prosecute the officers including the Petitioner. The Petitioner contends that the first respondent has recorded that the purchase bills were taken by Shri. Neelakanthan, the Chief Officer himself and handed over to the party directly. The fact was admitted by Shri.Neelakanthan in the departmental enquiry and he was dismissed from the services of the Bank and no such allegations was made against any other officer of the Bank including the Petitioner. The CBI has filed a case bearing No. 6 3 of 1992 in the Special Court, but no charges have been framed in the said matter till this date. 3. There are regulations framed in 1993 by the first respondent for promotion of officers from Scale I to Scale II. In Para 3.8 of the said promotion policy, an officer, facing a disciplinary proceeding or criminal prosecution can be considered in the process of selection for assessing the suitability of officers for promotion. However, considering the policy, the results of the selection for promotion of such officers were to be kept in a sealed cover after assessing their suitability for promotion. The same policy has also to be followed by Respondent Bank in case of subsequent promotions by subsequent DPC. Para 3.13 sets out that it is necessary to ensure that the disciplinary case/prosecution instituted against the officer is not unduly prolonged. 4. A review committee as required by the Regulations was constituted in the year 1995 and considered the case of the Petitioner and several officers. The name of the Petitioner was recommended for ad hoc promotion. The committee thereafter was again constituted in the year 1999 and the case of Petitioner was once again recommended for ad hoc promotion. The review 4 committee once again reviewed the case of officers whose results were kept in a sealed cover in the year 2001 and strongly recommended the case of the Petitioner and one another for ad hoc promotion. These facts were recorded in the report of the Review Committee. Inspite of various representations and after getting information under the Right to Information Act, the Petitioner has filed the present petition. 5. The respondents have not filed their reply. It is however, pointed out on behalf of the Respondent Bank by the learned counsel that the case of the Petitioner has not been considered as CBI has not given its opinion and untill such time as the CBI gives its opinion, it is not possible to consider the case of the Petitioner for ad hoc promotion. 6. After hearing the learned counsel for the parties and considering the Regulation and Rules, in our opinion, the present petition will have to be allowed. For that purpose we may gainfully refer to some of the regulations in the matter of sealed cover procedure. We may gainfully reproduce Regulations 3.13 and 3.14. "3.13. It is necessary to ensure that the disciplinary case/criminal prosecution 5 instituted against an officer is not unduly prolonged and all efforts to finalise expeditiously the proceedings should be taken so that the need for keeping the case of an officer in a sealed cover is limited to the barest minimum. . A committee constituted for this purpose by the Chairman & Managing Director would review the cases of the officers whose suitability for promotion to a higher grade has been kept in a sealed cover. Such review should be undertaken on the expiry of 6 months from the date of declaration of results and also be done subsequently every six months. The review should inter alia cover the following aspects : i) The progress made in the disciplinary proceedings/criminal prosecution and further measures tobe taken to expedite their completion. ii) Scrutiny of the material/evidence collected in the investigation to take a decision as to whether there is a prima facie case for initiating disciplinary action or sanctioning prosecution against 6 the officer. . If on the basis of the recommendations of the Review Committee, the Chairman & Managing Director comes to a conclusion in respect of cases covered by item (ii) above, that there is no case for taking action against the officer concerned, the sealed cover may be opened and he maybe given his due promotion with reference to the position assigned to him in the promotion exercise. 3.14. Inspite of the six monthly review referred in Para 3.13 above, if there are cases where the disciplinary case/criminal prosecution against the officer is not concluded even after the expiry of two years from the date of declaration of results of the first promotion process in which the concerned officer/s participated the following procedure shall be followed : . The Review Committee is constituted above would review such case/s provided he is not under suspension to consider the desirably of giving him ad hoc promotion keeping in view the following aspects : 7 a) Whether the promotion of the officer will be against the public interest. b) Whether the charges are grade enough to warrant continued denial of promotion. c) Whether there is any likelihood of the cases coming to a conclusion in near future. d) Whether the delay in the finalisation of the proceedings departmental or in a Court of Law, is not directly or indirectly attributable to the officer concerned. e) Whether there is any likelihood of misuse of official position which the officer may occupy after ad hoc promotion, which may adversely affect the conduct of the departmental case/criminal prosecution. . The Committee would also consult the Central Bureau of Investigation and take their views into accounts where the departmental proceedings or criminal prosecution arose out of the investigation conducted by the Bureau." 7. Based on the recommendations of the review 8 committee if the Chairman and Managing Director comes to a conclusion that it would not be against the public interest, the officer can be considered for ad hoc promotion. The ad hoc promotion made is to be purely on ad hoc basis and the ad hoc promotion will not confer any right for regular promotion and the promotion would be untill further orders and it is within the right of the Management to cancel the ad hoc promotion and revert at any time the officers to the post/grade/scale from which he was promoted. 8. The present petition can now be disposed of considering the regulations and the facts as pleaded, . Admittedly there is no dispute that criminal proceedings are pending against the Petitioner and that the Review committee from time to time has recommended the case of the Petitioner for ad hoc promotion. We may consider some extracts from one of the proceedings of the committee. The committee considered the case of the Petitioner along with various other officers in whose cases sealed cover procedure has been followed. The committee has noted as under : "As required the committee also deputed a Senior Officer of the Bank to the Central Bureau of Investigations (CBI) and the CBI 9 mentioned that at the discretion of the Bank the officers can be given ad hoc promotions and that the CBI is not concerned with the internal decision of the Bank." . The committee recommended some names and rejected some others. The name of the Petitioner was recommended. The Committee had formulated various points for consideration. One of the point was as under : "(i) Whether the promotion of the officer will be against public interest?" . The committee considering the same noted that the Petitioner had merely followed the practice of the department and acted as per the instructions of the superior officer and that as such granting of ad hoc promotion to the Petitioner will not be against the public interest since no such public interest is involved in his promotion. The committee thereafter posed to itself a question whether there is likelihood of case coming to a occlusion in near future. The committee noted that the CBI filed a case in the year 1992. At the relevant time of consideration it had noted that no charge sheet has been filed. However, as now pointed out the chargesheet has been filed. The Committee also 10 noted the cases filed by the CBI in the year 1987-88 were coming up and it was not possible to know when the case of the Petitioner will be taken up. The next question posed was whether the delay in the finalization of the departmental proceedings, or in court of law or the investigation is directly or indirectly attributable to the officer concerned. The committee held that there is not any likelihood of misuse of official position which the officer may occupy after ad hoc promotion and that there has been no delay which is attributable to the Petitioner. The committee then recommended that the officer may be given innocuous position. 9. The only contention raised before us on behalf of the respondent, is that CBI has not given its opinion. This is based on Rule 3.14 wherein the language used is as under : "The Committee would also consult the Central Bureau of Investigation and take their views into account where the departmental proceedings or criminal prosecution arose out of the investigation conducted by the Bureau." . It is clear from the report that the committee had in fact consulted the CBI and the opinion of the 11 CBI was that it was an internal matter of the Bank and it is for the bank to take a decision. Thus there has been consultation as required. It appears that even after this, the Bank has been writing to CBI. The language used in the rule is consultation and not concurrence. The law on the issue of consultation is now well settled. See L & T McNeil Ltd. Vs. Government of Tamil Nadu (2001) 3 SCC 170, Chanchal Goyal (Dr) Vs. State of Rajasthan (2003) 3 SCC 485. Even otherwise a duty is cast on the Respondents to act fairly. The Petitioners’ case has not been reviewed in terms of the Regulations. Where a power is conferred on an authority, the authority conferred with the power has a corresponding duty to act and that too fairly. 10. On the facts therefore, it is clear that the committee as required had consulted CBI. It cannot be that every time, the review committee meets, it has once again to reconsider the reply given by the CBI in respect of the same employee. Once the committee had given its report, it is for the Chairman and Managing Director to take a decision based on the report of the committee. That decision has not yet been taken. 11. In our opinion, under these circumstances, the 12 only relief that can be granted is to direct the Chairman/Managing Director to consider the report submitted by the Review Committee from time to time and to take a decision within eight weeks from today. 12. The learned counsel for the Petitioner contends that the Petitioner should be given promotion from the date the sealed cover procedure was followed or at least from the date of the report of the committee. The Petitioner for the first time approached this court in the year 2008. The promotion made in such a case is an ad hoc promotion for six months, to be reviewed from time to time. The promotion is subject to the result of the Select committee having found the Petitioner eligible for the promotion where the sealed cover procedure was followed. If the Petitioner has not been found eligible for promotion, the question of promoting him would not arise merely based on the sealed cover procedure. If the Petitioner has been selected by the Selection Committee, then the Chairman and Managing Director will consider the case of the Petitioner within eight weeks as set out in this judgment. Needless to say that subsequently, if the Petitioner is exonerated or discharged or acquitted from the charges, the Petitioner’s promotion would be considered in terms of the rules in force 13 pertaining to sealed cover procedure. 12. Rule made absolute accordingly. . No order as to costs. (A.A. KUMBHAKONI, J.) (A.A. KUMBHAKONI, J.) (A.A. KUMBHAKONI, J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.) (F.I. REBELLO,J.)