Allahabad High Court

Anil Kishore Gupta vs State Bank Of India Through Its ... on 16 August, 2023

Bench: Irshad Ali





HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC-LKO:54163
 
[R E S E R V E D]
 
Court No. - 5
 

 
Case :- WRIT - A No. - 6758 of 2004
 

 
Petitioner :- Anil Kishore Gupta
 
Respondent :- State Bank Of India Through Its C.G.M.And 4 Ors
 
Counsel for Petitioner :- K.K.Gautam,Amit Kr. Singh Bhadauriya,L.B.Singh Bhadauraiya
 
Counsel for Respondent :- N.K.Seth,Gopal Kumar Srivastava
 
Connected with
 
Case :- WRIT - A No. - 6145 of 2002
 

 
Petitioner :- Anil Kishore
 
Respondent :- State Bank Of India Thru Chairman Mumbai And 3 Others
 
Counsel for Petitioner :- Pankaj Nath,Amit Kr.Singh Bhadauriya,K.K. Gautam,L B Singh Bhadauriya
 
Counsel for Respondent :- N.K. Seth,Gopal Kumar Srivastava,Mahesh Chandra
 

 
Hon'ble Irshad Ali,J.

1. Heard Sri Sudeep Seth, learned Senior Counsel assisted by Sri Amit Kumar Singh Bhadauriya, learned counsel for the petitioner and Sri Gopal Kumar Srivastava, learned counsel for the respondent(s) - Bank.

2. Since both the writ petitions arise and give rise to a similar controversy, the same are being decided by means of this common judgment and order.

3. By means of present writ petition, the petitioner has prayed for issuance of a writ, order or direction in the nature of certiorari quashing the impugned disciplinary order dated 31.03.2004 along with appellate order dated 05.08.2004 as well as order dated 04.09.2004, whereby the petitioner was appointed on the post of Senior Assistant with a further prayer to issue a writ, order or direction in the nature of mandamus commanding the respondents to give effect to order dated 01.08.2003 treating the petitioner to be appointed on the post of Senior Assistant with all consequential benefits w.e.f. 01.04.2002 along with 24% interest on delayed payment.

3. Brief facts giving rise to the present writ petition are as under:

Writ-A No.6145 of 2002:

Sr. No.

Relevant Facts of the Case

The petitioner completed his B.Com. in IInd Division from Lucknow University, Lucknow in the year 1981 and LL.B. in IInd Division with 64% Marks from Lucknow University and has passed Ist part Examination of C.A.I.I.B. (Certificate of All India Institute of Bankers).

He was appointed on the post of Clerk / Typist by the respondent Bank on 17.07.1984 after having been qualified in written test and interview. He joined on the said post on 27.07.1984 at State Bank of India, Nanpara Branch, District Bahraich.

The petitioner was sent on deputation to Inspection Department on Mobile Duty and posted at Zonal Inspection Office, Lucknow on 21.01.1988 and was paid a sum of Rs.325/- per month, as special allowance in addition to other monthly salary.

He remained on deputation between the period 21.01.1988 to 19.08.1990.

On 20.08.1990, the respondent - Bank absorbed the petitioner as Clerk / typist in Inspection Department and the payment of deputation allowance of Rs.325/- was stopped.

On 12.12.1997, on petitioner's own request, he was transferred and posted at SBI's Circle Audit Department, Local Head Office, Lucknow.

On 14.08.1999, the petitioner was relieved for joining on deputation to SBI, Zonal Inspection Office, Jaipur, Rajasthan to work as Inspection Assistant on mobile duty with special deputation allowance of Rs.750/- per month.

Under merit cum Seniority channel, the respondent - Bank held examination for promotion to Junior Management Grade Scale - I Officer (for short, "JMGS - I) to be effective w.e.f. 01.08.1998, wherein the petitioner participated and secured 52 marks out of 60 marks but was not called for interview as he had no seniority marks to his credit by that time and was lower in merit by 4.5 marks.

On 18.02.2001 and 25.02.2001, the exam for JMGS-I was again held by the respondent - Bank and the petitioner again participated in the same, however, he was not informed about marks obtained and was not called for interview.

On 02.09.2001, the respondent - Bank held exam for promotion as Trainee Officers effective w.e.f. 01.08.2000, wherein the petitioner appeared and secured 38.67 marks out of 70 marks but was not called for interview as minimum cut of mark was 40.

On 28.01.2002, the petitioner applied for study leave and remained on leave from 05.02.2002 to 08.03.2002.

On 10.03.2002, the respondent - Bank held written examination for promotion as Trainee Officer and the petitioner participated in the same, however, he was not informed about result of the same.

On 19.06.2002 & 20.06.2002, the respondent - Bank held interview for the same, but the petitioner was not called for.

On 28.07.2002, the respondent - Bank held examination for promotion to the post of JMGS-I Officer effective w.e.f. 01.08.2001 and 01.08.2002 and the petitioner appeared in the same but he was not called for interview.

Vide letter dated 31.07.2002, the petitioner asked the respondent - bank to inform him the marks, which he had obtained in the examination held on 10.03.2002 for promotion as Trainee Officer effective from 2001.

Vide letter dated 12.08.2002, the Inspection and Audit Department of SBI, Jaipur, Rajasthan informed the petitioner that in the exam held on 10.03.2002 for promotion to Trainee Officer w.e.f. 01.08.2001, he had secured 46.75 marks out of 70 marks.

While acknowledging the above letter vide registered letter dated 20.08.2002 / 29.08.2002, the petitioner requested the respondent to inform the reasons for not calling him to appear in the interview despite having secured 46.75 marks, whereas candidates lesser than him in marks were called for, however, he has not received any reply since then.

On 21.08.2002, the petitioner was repatriated to Lucknow vide order dated 26.07.2002 and was relieved from his duties from Jaipur Rajasthan and he reported for duties at SBI, Local Head Officer, Lucknow on 24.08.2002.

On 02.09.2002, the petitioner was transferred to SBI, Zonal Officer, Lucknow for further posting. As petitioner was on leave on 3rd, 4th and 5th September, 2020, the said order was served upon him on 06.09.2002 and he immediately reported for duties at SBI, Zonal Office, Lucknow and since then he is awaiting for further posting orders.

Since 16.09.2002 till date, the petitioner was on medical leave as he was not well.

Vide letter dated 13.09.2002, which was received by the petitioner on 11.10.2002, the personnel section of SBI, Zonal Office, Lucknow had directed him to report to Assistant General Manager, Region-II, SBI, Zonal Office, Lucknow for further posting.

The petitioner being ill, vide application dated 12.10.2002 requested the AGM, SBI, Zonal Office, Lucknow to extend his medical leave, however, no reply has been made to him and he was not informed the reasons as to why despite his having secured higher marks, he was not called for in the interview held on 19.06.2002 and 20.06.2002 for promotion as Trainee Officer effective w.e.f. 01.08.2001, whereas persons securing lesser marks were called for and got promoted.

Writ-A No.6758 of 2004:

The petitioner was appointed as Clerk cum Typist in the respondent Bank on 27.07.1984. He was chosen for Inspection Department. He after having completed requisite length of service with approved track record, was allowed for promotional test for promotion to the post of JMGS-I w.e.f. 01.08.1998. In the examination, scoring 52 marks out of 60, he was not called for interview.

The petitioner again appeared in the promotional test for JMGS-I held on 18.02.2001 & 25.02.2001, however, the marks obtained were not disclosed to him.

The petitioner appeared in the examination for the post of Trainee Officer on 02.09.2001 and secured 38.67 marks out of 70.

He again appeared in the competitive test for promotion to the post of Trainee Officer w.e.f. 01.08.2001 but was not called for interview followed by admitting him to written test for promotion to the post of Officer JMGS-I effective from 01.08.2001 and 01.08.2002. The test was held on 28.07.2002 but the petitioner was not called for interview.

Petitioner having not been called for interview, requested the respondents to show his marks in the exam held on 10.03.2002.

Respondent No.2 vide letter dated 12.08.2002 informed the petitioner that he has secured 46.75 marks out of 70, however, he was not promoted.

When the persons securing lesser marks than the petitioner were called for interview, he filed Writ Petition No.6145 (S/S) of 2002, which is pending before this Court.

The petitioner was repatriated from Inspection Department, Jaipur to Local Head Office, Lucknow and then to Region-II of Zonal Office, Lucknow and then to village Branch, Patti in District Pratapgarh.

Vide letter dated 31.03.2003, respondent No.4 issued a show cause notice to the petitioner that as to why disciplinary proceeding should not be initiated against him for alleged misconduct.

The petitioner submitted reply to the same on 12.04.2003 denying the allegations levelled.

Vide letter dated 09.06.2003, the petitioner was charge sheeted for allegedly using unfair means in the impugned examination and was desired to submit reply within seven days.

On 01.08.2003, the petitioner was promoted in the cadre post of Senior Assistant based on seniority cum suitability w.e.f. 01.04.2002 i.e. date subsequent to petitioner's participation in the impugned examination.

In the news paper "The Pioneer" dated 24.11.2003, the IBPS, who conducted the Trainee Officers written test, which was held under control of Deputy General Manager of respondent Bank, a news item was published regarding IBPS having been involved in leakage of examination papers including CAT and Probationary Officers of SBI.

On 03.12.2003, a visit was made by respondent No.5 to Patti Branch to hold oral inquiry, wherein the petitioner stated that matter in dispute is subjudiced before Hon'ble Court in Writ Petition No.6145 (S/S) of 2002, therefore, no useful purpose will be served by holding the inquiry, however, he was forced to sit and sing the proceedings, however, in the inquiry, no prosecution documents were examined.

In pursuance to directives of presenting officer vide brief dated 03.12.2003 stepping into role of respondent No.5, the petitioner submitted his defense brief.

In the meantime, pending inquiry, a loan of Rs.2.00 Lacs was sanctioned to the petitioner by respondents, however, under the shadow of disciplinary proceedings, the same is not entitled for.

Vide letter dated 26.03.2004, respondent No.4 forwarded a tentative order passed to the petitioner. It is alleged that the said order was passed without affording opportunity of making submissions against the inquiry officer's finding.

On 30.03.2004, the petitioner requested the respondent No.4 to review his punishment order keeping in view the circumstances that he himself had concurred with award of 10/10 marks in petitioner's appraisal and promoted him to the post of Senior Assistant w.e.f. 01.04.2002.

On 31.03.2004, respondent No.4 passed final order warning the petitioner instead of censure entry earlier proposed.

Vide letter dated 10.05.2004 respondent No.4 stated that inquiry report has already been provided to the petitioner and vide order dated 14.05.2004, he confirmed the tentative order stating that if the petitioner is having any grievance, he may file an appeal within 45 days.

On 27.05.2004, the petitioner filed appeal stating that he has gathered information that the invigilator upon query has denied that any unfair means have been used.

Vide letter dated 02.08.2004, the petitioner requested the Branch Manager, Patti to relieve him for Korwa Branch.

Vide order dated 05.08.2004, respondent No.3 rejected the petitioner's appeal taking same view as of respondent No.4.

On 04.09.2004, a fresh order was issued by respondent No.4 directing the petitioner's posting to Lalganj.

Vide letter dated 23.09.2004, Branch Manager, Patti relieved the petitioner for Diwaganj Branch instead of Lalganj Branch and after five days, he was again relieved for Kumbhi Aima Branch to assist the inspection.

On 11.10.2004, the petitioner was relieved from Kumbhi Aima Branch to Lalganj Branch.

aa.

The entire action of respondents being alleged to be malafide, falase, prejudicial, illegal, biased, vindictive, unequal and beyond jurisdiction denying the promotion to the petitioner to the post of Trainee Officer, the present writ petitions have been preferred before this Court.

4. Submission of learned Senior Counsel for the petitioner is that the petitioner has never used unfair means in promotional examination to the post of Trainee Officer and he has scored higher marks than Sri. A.K. Barkley, who had himself admitted having used unfair means in the said examination.

5. He further submitted that the impugned charge sheet is nothing but an after thought with ulterior motive to somehow justify the deprivation of promotion to the petitioner. The respondents have never taken the plea of using unfair means by the petitioner prior to filing of Writ Petition No.6145 (S/S) of 2002 claiming promotion to the post of Trainee Officer. He submitted that the respondents even did not comeforth with the allegation of use of unfair means while communicating the marks secured by the petitioner. Even after query made by the petitioner in this regard, the respondents did not spell out any reason.

6. He next submitted that the impugned order has been passed on the basis of surmises and conjectures and in absence of any constructive evidence to substantiate the allegations. He submitted that on the one hand no evidence has been lead by the respondents during course of inquiry and on the other hand, the respondent -IBPS itself failed to support its contention lead by evidence.

7. He further submitted that the appellate authority erred in stating that the inquiry officer had duly considered the petitioner's brief, however, the same is against inquiry officer's own statement, whereby he has stated that he had not receive the defense brief of the petitioner.

8. He submitted that the petitioner having been promoted to the post of Senior Assistant w.e.f. 01.04.2002 vide order dated 01.08.2003 is entitled to get salary and other benefits and denial of the same is illegal, malafide and prejudicial.

9. He lastly submitted that subsequent order of promotion to the post of Senior Assistant dated 04.09.2004 is redundant in nature and beyond jurisdiction and is liable to be quashed by this Court. In support of his submissions, he placed reliance upon following judgments:

a) K.K. Gautam Vs. The State Bank of India and another; Writ Petition No.3988 (S/S) of 1992 decided on 24.11.1993.

b) Ram Prakash Bajpai Vs. State of U.P. Through Prin. Secy. Civil Aviation Deptt. Lko.; Service Single No.331 of 2012 decided on 15.03.2021.

c) State of Uttar Pradesh and others Vs. Saroj Kumar Sinha; (2010) 2 SCC 772.

d) Roop Singh Negi Vs. Punjab National Bank and others; (2009) 2 SCC 570.

10. On the other hand, learned counsel for respondent(s) - Bank submitted that the petitioner while posted as Assistant (Accounts / Typist) in Zonal Inspection and Audit Department of respondent - Bank at Jaipur Zone appeared in written examination held on 10th March, 2002 for appointment on the post of Trainee Officer, 2001. As per report dated 17.05.2002, submitted by IBPS (Institute of Banking Personnel Selection), he used unfair means in the objective part of written test. Therefore, the respondent - bank decided for initiation of disciplinary proceeding against him and for the said reason, he was not considered for interview held on 29.06.2002 and 20.06.2002.

11. The petitioner went on leave w.e.f. 16.09.2002 to 28.10.2002 on the ground of sickness and in the mean time he filed Writ Petition No.6145 (S/S) of 2002 before this Court, which is pending consideration. He had filed another Writ Petition No.801 (S/S) of 2003, which was dismissed vide order dated 05.02.2003 and against the said order he filed Special Appeal No.80 of 2003, which has also been dismissed by Division Bench of this Court vide order dated 28.02.2003.

12. He submitted that in terms of bank's policy under the scheme of Career Progression, the petitioner was promoted to the post of Senior Assistant w.e.f. 01.08.2004 and was transferred to Lalganj Branch, District Pratapgarh vide letter dated 04.09.2004. However, as per bank's norms, name of petitioner, who was under disciplinary proceedings, could not be considered and therefore, he could not be appointed as Senior Assistant w.e.f. 01.04.2002.

13. He next submitted that for using unfair means in the examination, a charge sheet was served upon the petitioner on 09.06.2003 for which ample opportunity of hearing was provided to the petitioner and the inquiry authority submitted his finding on 12.12.2003. He submitted that having considered the entire material placed before the disciplinary authority, the tentative order dated 26.03.2004 was passed awarding punishment of censure to the petitioner providing one more opportunity to place his submissions against the proposed punishment within three days, reply to which was submitted by the petitioner on 30.03.2004 stating that the order is discriminatory in nature as Sri A.K. Barkley was also charge sheeted along with the petitioner for copying from each other, was only warned but the petitioner has been awarded censure entry. The petitioner also submitted that the respondent - bank has appreciated his work and he has been granted promotion in cadre on the post of Senior Assistant with retrospective effect, whereupon the disciplinary authority has observed as under:

"(i) Under the rules governing the services of the EPA, if the charge of resorting to unfair practices of any nature whatsoever in any examination is accepted by the charged employee, it is considered a "MINOR MISCONDUCT", whereas if the employee does not accept the charge and the same is subsequently proved against him, it constituted "GROSS MISCONDUCT". The MISCONDUCT of both the employees was considered and punishment awarded to them accordingly. Although there is no discrimination or bias as alleged but as both the punishments "WARNED" or "CENSURED" are defined in the same clause 6(h) of the settlement, the Disciplinary Authority considered the punishment of warning for the sake of uniformity as claimed by the EPA.

(ii) Report received by the IBPS was considered by the bank under the rules framed in this regard. The report published in the newspaper against IBPS in no way affects its credibility in the instant case. Thus, over-ruled the objectives.

(iii) The performance and other achievements of the employees are not relevant while deciding the gravity of the MISCONDUCT nor it reduces his culpability in the instant case. Rather his in cadre promotion from retrospective dates speaks against his allegation of bias on the part of the management, therefore, find no merit / subsistence in his objections."

14. He submitted that the disciplinary authority after considering the entire material placed before him modified the tentative order to the extent that the petitioner be warned to be more careful in this regard with a note to this effect in his service record. Against the said order, the petitioner filed an appeal before the appellate authority, which was rejected confirming the condign punishment order. He submitted that as per Award Staff Debarment Policy, when disciplinary proceedings are in progress, following procedure may be followed:

(i) An employee, against whom disciplinary action is contemplated for an offence amounting to fraud, misappropriation of money, forgery or any other act which prima facie amounts to criminal misconduct, shall be debarred from promotion for a period not exceeding 3 years reckoned from the date such contemplation if advised to the employee in writing (ref. Circular Staff No.125 of 1978 dated 26.6.78).

(ii) In all other cases of disciplinary action, the bar will operate as from the date the employee is served with a charge-sheet (ref. Circular Staff No.125 of 1978 dated 26.6.78).

(iii) Normally, the 3-year period of debar should commence from the date of charge sheet. However, in some cases, issuance of charge sheet is sometimes not possible owing to the Bank desiring to investigate a matter fully before a charge sheet is framed. It is quite possible that an employee, whose alleged misconduct is being investigated, may become eligible for promotion in the meantime. Under such circumstances, it may become necessary to advise the employee that disciplinary action is contemplated against him. He may not, therefore, be considered eligible for promotion. It should, of course, be ensured in the interest of the Bank as well as that of the employee, that the investigation is expeditiously completed and charge sheet issued as early as possible (ref. Circular Staff No.125 of 1978 dated 26.6.78).

(iv) Where the employee has been charge sheeted or the disciplinary action is contemplated against him for a minor misconduct, he may be permitted provisionally to appear in the test, interview etc. for promotion to higher cadre subject to his being eligible otherwise, but the result of such an employee should be withheld until such time as the case is decided (ref. Circular Staff No.125 of 1979), where after, such cases would be considered in the following manner:-

(a) If the employee is completely exonerated on the conclusion of disciplinary proceedings and it is found that he was successful in the test / interview, he would be promoted with retrospective effect alongwith other employees. (Ref. Circular Staff No.107 of 1980 dated 2.7.80).

(b) In terms of debarment policy, warning / censure is not treated as a bar to eligibility for promotion. There is, therefore, a case for considering those employees for promotion, who are warned / censured on the conclusion of disciplinary proceeding and who are found suitable for promotion, with effect from a future date. The fact of the disciplinary proceedings contemplated / pending against an employee and of the warning / censure, if the punishment has been awarded before the interview, is known to the interview Committee and if despite this the employee is found suitable for promotion, it would be appropriate not to cancel his result and consider him for promotion from a future date. The punishment to such an employee would thus be the loss of seniority vis-a-vis others, who appeared at the same test and got promoted earlier. Accordingly, such employees may be promoted with the batch promoted subsequent to the award of punishment without having to appear again in the promotion test. (Ref. Circular Staff No.107 of 1980 dated 2.7.80).

(c) In the case of any other punishment, the result of the promotion test should be cancelled. The employee in all such cases would have to appear afresh in the test after the debarment period is over. However, their appearance in the test, the result of which is no declared, would not be counted as a change availed (Ref. Circular Staff No.107 of 1980 dated 2.7.80).

(d) In all the cases, where employees are provisionally permitted to appear in the test etc., they should be advised clearly in the initial stage itself that their promotion, in the event of their being successful in test, interview etc., would depend on the outcome of the disciplinary proceedings pending against them and that their appearance in the test etc. is only provisional. (ref. Circular Staff No.125 of 1979 dated 3.10.79)."

15. He further submitted that the petitioner is habitual of filing successive writ petitions and the grounds taken in the present writ petition has already been taken in the earlier writ petitions, which is not tenable in view of Rule 7 Chapter 22 of Allahabad High Court Rules, 1925.

16. He lastly submitted that the punishment order impugned in the writ petition is just and valid and does not call for any interference from this Hon'ble Court and the writ petitions are liable to be dismissed. In support of his submissions, he placed reliance upon following judgments:

a) Varun Bhardwaj Vs. State Bank of India and ors.; L.P.A. No.155/2013 decided on 24.11.2015.

b) Rajbir Surajbhan Singh Vs. The Chairman, Institute of Banking Personnel Selection, Mumbai; Civil Appeal No.4455 of 2019 decided on 29.04.2019.

c) Ravi Kumar Kulhari vs. Rajasthan Rajya Vidyut Prasaran Nigam Ltd. and another and connected writ petitions; S.B. Civil Writ Petition No.7345 of 2022 decided on 09.09.2022.

d) State Bank of India and Ors. Vs. Narendra Kumar Pandey; Civil Appeal No.263 of 2013 decided on 14.01.2013.

e) Tara Chand Vyas Vs. Chairman & Disciplinary Authority and Ors.; (1997) 4 SCC 565, para 3.

17. I have considered the submissions advanced by learned counsel for the parties and perused the material on record as well as law reports cited by learned counsel for the parties.

18. To resolve the controversy involved in the matter, relevant portion of the judgments relied upon by learned counsel for the parties are being quoted below:

• Judgments relied upon by learned Senior Counsel for the petitioner:

a) K.K. Gautam (Supra):

"25. In service jurisprudence next below rule is the guiding principle in the matter of promotion. When ever an employee is passed over by his juniors due to some administrative error or pendency of disciplinary proceedings, his seniority has to be restored back vis-a-vis his juniors as soon as the error is detected or such an employee is exonerated of the charges. Hon'ble Supreme Court of India had the occasion to reiterate this principle again in the matter of Arun Kumar Chatterjee v. South Eastern Railway and others reported in 1985 (2( SCC 451 and while dealing with somewhat similar situation of denial of correct seniority held as follows:

"We find no justification for the attitude adopted by the Railway Administration in depriving the appellant of his legitimate rights. Loss of seniority of a government servant with consequent loss of promotional prospects, higher pay and emoluments is a matter of serious consequence to him. When the appellant by his representations drew the attention of the departmental authorities to the injustice done to him, it was their duty to have rectified the mistake and re-fixed the seniority of the appellant."

26. After hearing both the parties at great length, petitioner in person and opposite parties represented through a senior counsel and perusing the record. we are of the confirmed view that the opposite parties failed to consider the representation of the petitioner in the light of the recommendations made by their own senior officers to give the petitioner promotion with effect from 1975 with open mind and in accordance with the practice and policy of the bank itself as well as the settled position of law. Thus, there has been a clear violation of equality clause contained in Articles 14 and 16 of the Constitution of India. We hodl that after exoneration from the alleged charges, bank ought to have restored the status-quo ante regarding promotion of the petitioner to the post of J.M.G.S.-I (redesignated). It is indeed regrettable that the subordinate official has been treated by his superiors in such a callous manner. We have no doubt whatsoever that the petitioner has been a victim of most unfair and arbitrary action and had been made to suffer for no fault of his for all these years. His agony, therefore, must come to and end without any further delay.

27. In these circumstances, this writ petition succeeds and deserves to be allowed. A writ of mandamus is hereby issued directing the opposite parties to treat the petitioner as having duly passed the written test held on 26-10-1975 and treat him appointed on the redesignated post of J.M.G.S.-I with effect from 1975 from the date any of his junior was so promoted / appointed with all the consequential benefits including further promotions to all the next higher posts. Opposite parties are further directed to implement this order forthwith and in any event not later than one month from the date a certified copy of this judgment and order is produced before them."

b) Ram Prakash Bajpai (Supra):

10. So far as the second submission of the petitioner is concerned, a perusal of the record of departmental proceedings shows that no witness appeared in the departmental enquiry or proved any document against the petitioner. The law in this regard is well settled.

11. (A) This Court in Subhas Chandra Sharma vs. Managing Director and another 4, said:-

"In our opinion after the petitioner replied to the charge-sheet a date should have been fixed for the enquiry and the petitioner should have been intimated the date, time and place of the enquiry and on that date the oral and documentary evidence against the petitioner should have been led in his presence and he should have been given an opportunity to cross-examine the witnesses against him and also he should have been given an opportunity to produce his own witnesses and evidence. If the petitioner in response to this intimation had failed to appear for the enquiry then an ex parte enquiry should have been held but the petitioner's service should have not been terminated without holding an enquiry. In the present case it appears that no regular enquiry was held at all. All that was done that after receipt of the petitioner's reply to the charge-sheet he was given a show-cause notice and thereafter the dismissal order was passed. In our opinion this was not the correct legal procedure and there was violation of the rules of natural justice. Since no date for enquiry was fixed nor any enquiry held in which evidence was led in our opinion the impugned order is clearly violative of natural justice."

(B) The above judgment was followed by another Division Bench in Subhas Chandra Sharma vs. U.P. Co-operative Spinning Mills and others5 where Court held:

"In cases where a major punishment proposed to be imposed an oral enquiry is a must, whether the employee request, for it or not. For this it is necessary to issue a notice to the employee concerned intimating him date, time and place of the enquiry as held by the Division Bench of this Court in Subhash Chandra Sharma v. Managing Director, (2000) 1 UPLBEC 541, against which SLP has been dismissed by the Supreme Court on 16-8-2000." (emphasis added)

"An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/ disciplinary authority/ Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

12. From the above facts, it is found that the enquiry held against the petitioner is not held as per the procedure established by law. Thus the punishment order passed against the petitioner on the basis of such an defective and illegal enquiry cannot stand.

13. Given the aforesaid, the writ petition is allowed. Both the order of dismissal dated 04.08.1995 as well as the order dated 30.12.2011 rejecting the representation of the petitioner are set aside. Petitioner would be entitled to all benefits of service as are granted to other two delinquent employees i.e. Sri V.K. Saxena, Junior Aircraft Mechanic and Sri Harish Chandra @ Munna, Cleaner."

c) State of Uttar Pradesh and others (Supra):

"27. A bare perusal of the aforesaid sub-Rule shows that when the respondent had failed to submit the explanation to the charge sheet it was incumbent upon the inquiry officer to fix a date for his appearance in the inquiry. It is only in a case when the Government servant despite notice of the date fixed failed to appear that the enquiry officer can proceed with the inquiry ex parte. Even in such circumstances it is incumbent on the enquiry officer to record the statement of witnesses mentioned in the charge sheet. Since the Government servant is absent, he would clearly lose the benefit of cross examination of the witnesses. But nonetheless in order to establish the charges the department is required to produce the necessary evidence before the enquiry officer. This is so as to avoid the charge that the enquiry officer has acted as a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

30. When a department enquiry is conducted against the Government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The enquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service."

d) Roop Singh Negi (Supra):

14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.

15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

• Judgments relied upon by learned Senior Counsel for the respondent(s) - Bank:

a) Varun Bhardwaj (Supra):

"14. ............................................ The SBI also deposed in its affidavit before the learned single judge that as many as 976 candidates had similarly adopted unfair means in the written test conducted by it. The SBI informed the Court that this could be ascertained by the adoption of the methodology evolved by IBPS, uniformly to detect the pattern of incorrect answers beyond a certain number. The learned single judge was satisfied that SBI's action was not arbitrary and that the court in exercise of its judicial review jurisdiction, would not substitute the opinion of experts with their own.

16. SBI relies on IBPS's document entitled "Detection of use of unfair means/Malpractices in objective tests". Part III of the said document states that IBPS consider two important criteria; one, where a pair of candidates answer 12 or more identical wrong answers; and the mismatches (number of questions with different answers) being small, i.e 5 or less. The other, criteria is to detect those scoring high in tests, but having used unfair means, discernable by application of a two pronged filter (a) criteria by which pairs of candidates have more than 90 % number of questions, containing wrong answers are picked up. Identical wrong answers (IWWs) should be a minimum number for a different set of total number of questions: (i) for a 50 item test, IWW should be more than 5 or more; (ii) where the total number of questions is 75, the identical wrong answers should be minimum 7, etc and so on. The document further states as follows:

"It can be concluded that the candidates under criteria (A) have used unfair means beyond all reasonable doubts.

It can be inferred based on the very low probability of such an event occurring by chance with good degree of accuracy that the candidates under Criteria (B) have resorted to use of unfair means."

Other material parts of the said document are extracted below:

"PROCESS FOLLOWED AT IBPS FOR IDENTI FYING CASES OF USE OF UNFAIR MEANS :

(i) IBPS has a practice of analyzing the responses of all candidates who have appeared in objective tests of all the examinations at a particular centre (city/town) for identifying cases of use of unfair means.

(ii) IBPS has indigenously developed software for identifying such cases based on an internationally accepted method. The responses of each candidate are compared with the responses of all the remaining candidates at each centre (city/town) and matched for identical responses. The software generates report of all pairs of cases which have identical responses mainly identical wrong responses.

(iii) This report is critically reviewed by group of IBPS experts. The expert group considers the following in addition to identical wrong answers while deciding on reporting use of unfair means and a final report is prepared only after the committee reviews other factors supporting the analysis and the cases are forwarded to the bank for taking necessary action:

(1) Evidence of any random/pattern marking

(2)Identical matches of 'intermittent' and 'end' skipped

questions

(3) Item which otherwise show different answer across

centre

(4)Evidence of copying by a common group of

candidates.

IPBS removes these candidates from the result of its own examinations (CWEs). For all other examinations, the report is sent to the concerned organization."

24. The Court is conscious that technology often empowers citizens; at the same time it has the potential to facilitate misuse. In the context of the facts of this case, this Court is not persuaded with the appellant's submission that without tangible material or evidence, the SBI could not have inferred the employment of "unfair means" by candidates generally and the petitioner in particular. Use of electronic devices to transmit information - either in the form of text messages or by use of hidden listening devices which go undetected may be hard to establish. That does not mean that LPA 155/2013 Page 17 patterns which are discernible and are thrown up on application of scientific formulae or statistical models, which leads to further examination of the primary material should be eliminated by the Courts. In the present case, the pattern which emerged showed that the appellant's results in respect of wrong answers matched with some other candidates who also appeared in the New Delhi centre. On further scrutiny, the reasonableness of the suspicion was strengthened by the manner of his attempting the answers. These, in the opinion of the Court, were sufficient basis for the SBI to conclude that unfair means had been employed and withhold his result. The directions sought are, therefore, unavailable in exercise of judicial review discretion under Article 226 of the Constitution. As a result, this Court finds that the impugned judgment and order of the learned Single Judge does not call for interference. The appeal is, therefore, dismissed without any order as to costs."

b) Rajbir Surajbhan Singh (Supra):

"12. There is no manner of doubt that a Writ Petition under Article 226 is maintainable even against a private body provided it discharges public functions. While deciding the question as to whether ICRISAT is amenable to the writ jurisdiction under Article 226, this Court held that it is not easy to define what a public function or public duty is. It can reasonably be said that such functions as are similar to or closely related to those performable by the State in its sovereign capacity, are public functions. The primary activity of ICRISAT is to conduct research and training programmes in the sphere of agriculture, purely on a voluntary basis which according to this Court, is not a public duty10. A private company carrying on banking business as a scheduled commercial bank cannot be termed as an institution or a company carrying on any statutory or public duty."

15. This Court in Federal Bank case held that a Writ Petition under Article 226 of the Constitution is not maintainable against a scheduled bank on the ground that the business of banking does not fall within the expression "public duty". As the activity of the Respondent of conducting the selection process for appointment to the banks is voluntary in nature, it cannot be said that there is any public function discharged by the Respondent. There is no positive obligation, either statutory or otherwise on the Respondent to conduct the recruitment tests. For the reasons above, we are of the considered opinion that the Respondent is not amenable to the Writ Jurisdiction under Article 32 or Article of the Constitution of India."

c) Ravi Kumar Kulhari (Supra):

"15. These writ petitions filed by the petitioners deserve to be dismissed for the reasons; firstly the respondents have taken a conscious decision based on the report of the Expert Committee for withholding the result of the petitioners as they were found using unfair means; secondly, this court cannot sit as an Appellate Authority over the decision of the respondents based on the report of the Expert-Committee, thirdly the judgment cited by the learned counsel for the petitioners of Hon'ble Supreme Court in the matter of Union of India (Supra) is not applicable in the facts of the present case as in the aforesaid matter the lecturers were appointed and after joining the services were terminated without giving any opportunity of hearing while in the present matters the petitioners have not even been selected as yet and, thirdly as the petitioners have participated in the selection process after careful reading of the terms, and conditions of the advertisement, as such they are estopped to challenge the same in view of the judgment passed by the Hon'ble Supreme Court in the matter of Ashok Kumar (supra) and lastly, in my considered view no illegality has been committed by the respondents for invoking clause 10(6) of the advertisement based on the report of the Expert-Committee."

d) State Bank of India and Ors. (Supra):

"12. The first infirmity pointed out by the High Court was that charge- sheet did not mention anything about the documents or the witnesses which/whom it proposed to rely to prove the charges, nor appended any list of documents or witnesses. The presenting officer had also, according to the High Court, failed to provide the list of documents and witnesses to the charged officer. Further, the High Court also pointed out that minutes of the proceedings would indicate that forty eight more documents were produced before the Inquiring Authority and the rest of the documents were permitted to be produced on 07.11.1997. On 07.11.1997, thirty four more documents were produced and marked as Ex. 51 to 84. The High Court also pointed out that no witness was examined by the Bank in support of charges and hence to hold the charges relating to Government Business Branch proved was in fact a finding supported with no evidence.

20. We are of the view that the High Court also committed an error in holding that since no witness was examined in support of charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the Inquiring Authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges."

e) Tara Chand Vyas (Supra):

"Shri B.D. Sharma, learned counsel for the petitioner, contends that for proof of the charges none of the witnesses was examined nor any opportunity was given to cross-examine them and the petitioner has disputed his liability. As a consequence, the entire enquiry was vitiated by manifest error apparent on the face of the record. We find no force in the contention. The thrust of the imputation of charge was that he had not discharged his duty as a responsible officer to safeguard the interest of the Bank by securing adequate security before the grant of the loans to the dealers, and has not ensured supply of goods to the loanees. It is based upon the documentary evidence which has already been part of the record and copies thereof had been supplied to the petitioner. Under those circumstances, we do not think there is that any manifest error apparent on the face of the record, warranting interference. It is then contended that no reasons have been given in support of the conclusions to substantiate the charges. The enquiry officer had elaborately discussed each charge and given reasons which were considered by the disciplinary authority and reach the conclusion that the charges were proved. So, had the appellate authority. They are not like civil Court."

19. On perusal of judgments cited by learned Senior Counsel for the petitioner, it is evident that in service jurisprudence next below rule is the guiding principle in the matter of promotion. When ever an employee is passed over by his juniors due to some administrative error or pendency of disciplinary proceedings, his seniority has to be restored back vis-a-vis his juniors as soon as the error is detected or such an employee is exonerated of the charges.

20. However, on perusal of judgments cited by learned counsel for respondent(s) -Bank, it is reflected that if the charges are borne out from documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the Inquiring Authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges.

21. In the case in hand, vide impugned order dated 31.03.2004, following findings were recorded:

"2. इस सम्बन्ध मे, आपके प्रतिवेदन पर विचार करने के उपरान्त मैं अपने अस्थाई आदेश दिनांक 26.3.2004 को इस सीमा तक संशोधित करता हूँ कि आपको "Warned" किया जावे। मेरा अंतिम आदेश दिनांक 31.3.2004 संलग्न है ।"

ORDER

3. I have carefully considered the issues raised by Shri Gupta and observed as under:

i) Under the rules governing services of the EPA, if the charge of resorting to unfair practice of any nature whatsoever in any examination is accepted by the charged employee it constitute a "Minor Misconduct" whereas if the employee does not accept the charge and the same is subsequently proved against him, it constitutes a "Gross Misconduct". The misconduct of the both employees was considered and punishment awarded to them accordingly. Although there is no discrimination or bias as alleged but as both the punishments "Warned or Censured" are defined in the same clause 6 (h) of the Settlement, I may consider the punishment of warning for the sake of uniformity as claimed by the EPA.

ii) The report received by IBPS was considered by the Bank under the rules framed in this regard. The report published in news papers against IBPS, in no way affects its credibility in the instance case. The objection is, thus, overruled.

iii) The performance and other achievements of the employee are not relevant while deciding gravity of his misconduct nor it reduces his culpability in the instant case. Rather his in cadre promotion from the retrospective date speaks against his allegation of bias on part of the management. I, therefore, found no merit/substance in his above objections.

4. Considering the entire material on record once again, under the facts and circumstances of the case, for the sake of uniformity as claimed by the EPA, I modify my Tentative Order to such extent and finally decide that Shri Anil Kishore Gupta be warned to be more careful in this regard with suitable noting to this effect in his service record."

22. Vide impugned order dated 05.08.2004, the appellate authority recorded following findings:

"2. इस सम्बन्ध में अपीलीय अधिकारी द्वारा आपकी अपील पर विचारोपरांत पारित आदेश दिनांक 4 अगस्त 2004 संलग्न है जिसके द्वारा आपकी अपील को अस्वीकृत / निरस्त कर दिया है।

ORDER

4. I have carefully examined the grounds of appeal after going through the entire material on record including the Chargesheet, its reply, enquiry Proceedings, defence brief, findings of the Enquiry Officer, Disciplinary Authority's order of proposed punishment and the appellant's submission thereagainst etc. and my observations are as under:-

(i) The Enquiry in the matter was concluded on 03.12.2003 and Presenting Officer's brief was received on the same day but defence brief could be received by the Enquiry Officer only on 22.12.2003 who after consideration put up the same before the Disciplinary Authority. The Disciplinary Authority taking into his consideration the entire material on record, including the defence brief, passed his Tentative Order dated 23.03.2004 which was served on the Appellant on 27.03.2004. The submissions of the Appellant called for against the Tentative Order were received by the Disciplinary Authority on 30.03.2004 in which he interalia made repeated references of the findings of the Enquiry Officer. As such, I find that the prescribed procedure for conducting Disciplinary Proceedings in the Bank has been complied with and there is no violation of any procedural rule or law on the subject, which may have prejudiced the appellant.

(ii) The evidence relied upon by the Disciplinary Authority is a report submitted by the Institute of Banking Personnel Selection (IBPS), Mumbai, an independent expert body who was entrusted with holding of the test. The report shows analytical date of merit listed pairs of candidates established to have copied/used unfair means. The data appears to be based on the theory of probability, an accepted scientific formula in probing such malpractices in the tests after the examination is over. The pair of candidates has 12 identical wrong answers and 4 mismatches which is the established case of use of unfair means beyond all reasonable doubts under the norms. As such the facts established on the scientific basis of calculation afford sufficient grounds for holding the charges as proved against the appellant.

(iii) The IBPS detected the case of use of unfair means by the Appellant and Shri A.K. Barkley on the basis of analysis of responses given by them in their respective answer sheets. Shri Barkley accepted his guilt but the appellant did not accept but denied. Under the rules contained in Para7(m) and 5(o) of the Bipartite Settlement dated the 16the April 2002, the misconduct of Shri Barkley was considered as the "minor misconduct" and that of the appellant as a "Gross misconduct", punishable under para 8 and ibid. Accordingly, the disciplinary proceedings were initiated against both of them and punishment awarded accordingly to the nature, content and gravity of their misconducts. The punishment awarded to the appellant is, therefore, justifiable, adequate and equitable.

(iv) The claim for consideration of the past good record of the appellant being extraneous to his lapse is not tenable under the facts and circumstances of his case before me.

5. In view of the above and making an independent assessment of the entire material on record, I am of the considered view that the appellant has not raised any considerable issue and thus failed to bring out any ground which may attract my interference in the Disciplinary Authority's order.

6. I, therefore, confirm the order awarding a condign punishment and reject the Appeal.

I order accordingly."

23. While vide impugned order dated 04.09.2004, the petitioner was appointed on the post of Senior Assistant and was directed to be posted at Lalganj Branch, District Pratapgarh.

24. Even, if case of the respondent(s) -Bank is admitted on its face value and if charge of using unfair means against the petitioner was found proved and as a result, warning was issued to him by the disciplinary authority by making a suitable note in this regard in his service book, which was also affirmed by the appellate authority and there was no whisper by the respondent(s) at any point of time imposing the rider that the petitioner shall not be entitled to get benefit for grant of appointment to the post of Senior Assistant w.e.f 01.04.2002, the same cannot be denied to him, if similarly situated persons have been provided the same.

25. It is specific case of respondent(s) that, as per bank's norms, name of petitioner, who was under disciplinary proceedings, could not be considered and therefore, he could not be appointed as Senior Assistant w.e.f. 01.04.2002. Once, the punishment of "warning" has been awarded to him and a note in this regard has been made in his service book, there is no occasion to deny the petitioner's claim for appointment on the post of Senior Assistant w.e.f. 01.04.2002.

26. Loss of seniority to a government servant with consequent loss of promotional prospects, higher pay and emoluments is a matter of serious consequence to him.

27. The judgments relied upon by learned counsel for the respondents do not attract to the present facts and circumstances of the case.

28. Given the aforesaid reasons, the writ petition deserves to be allowed and is hereby allowed.

29. The impugned disciplinary order dated 31.03.2004, the appellate order dated 05.08.2004 as well as the order dated 04.09.2004 appointing the petitioner on the post of Senior Assistant are hereby quashed.

30. A writ in the nature of mandamus is issued directing the respondent(s) - Bank to treat the petitioner to be appointed as Senior Assistant w.e.f. 01.04.2002 with all consequential benefits including further promotions to all the next higher posts.

31. The said exercise shall be completed in any event not later than eight weeks from the date a certified copy of this judgment and order is produced before the respondents.

32. No order as to costs.

Order Date :- 16.08.2023

Adarsh K Singh