Calcutta High Court (Appellete Side)

State Bank Of India & Ors vs Abhishek Choudhury & Anr on 12 September, 2024

Author: Debangsu Basak

Bench: Debangsu Basak

                     Form No. J (2)
                                        IN THE HIGH COURT AT CALCUTTA
                                         CIVIL APPELLATE JURISDICTION
                                                APPELLATE SIDE

                     Present:
                     The Hon'ble Justice Debangsu Basak
                                And
                     The Hon'ble Justice Md. Shabbar Rashidi

                                                   M.A.T. 1728 of 2022

                                               State Bank of India & ors.
                                                          VS.
                                              Abhishek Choudhury & anr.
                                                           With
                                                   M.A.T. 64 of 2023

                                               State Bank of India & ors.
                                                         VS.
                                              Abhishek Choudhury & anr.


                     For the Appellants               :    Mr. Subrata Kumar Sinha, Advocate

                     For the Respondent No.1/

Private respondent : Mr. Soumya Majumdar, Advocate Mr. Biswaroop Biswas, Advocate Mr. Prabir Rej, Advocate Mr. Pranab Kumar Das, Advocate Ms. Nupur Chaudhuri, Advocate

For the Union of India : Mr. Arun Bandyopadhyay, Advocate

Heard on : 12.09.2024

Judgment on : 12.09.2024

DEBANGSU BASAK, J.:-

1. Appeal is directed against the order dated December 12, 2022 in WPA

22356 of 2022.

Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

2. By the impugned order, learned Single Judge, allowed the writ

petition and directed the authorities to consider the representation of the writ

petitioner/private respondent dated January 29, 2021 in terms of the Service

Rules and Guidelines of the appellants on reversion policy after taking into

consideration the report of the medical board dated February 28, 2022.

3. Learned advocate appearing for the appellants submits that, private

respondent was working as an Assistant with the appellants. He participated in

the selection process for promotion to the post of Assistant Manager. He was

granted promotion to the post of Assistant Manager on probation. During the

probationary period, private respondent absented himself from his duties. He

stopped attending the branch on and from January 5, 2021 after reporting for

duty on January 4, 2021.

4. Learned advocate appearing for the appellants submits that, the

Service Rules of the employees of the appellants are governed by the provisions

of the State Bank of India Officers' Service Rules, 1992 so far as the cadre of

private respondent at which he was promoted. He refers to Rule 16(3) thereof.

He submits that, it is at the discretion of the management whether or not to

revert a promotee to the original cadre. He also refers to the policy of the

appellants which is embodied in the reversion policy. According to him,

reversion is at the discretion of the management since, the management is

required to maintain the discipline amongst its employees. He refers to large

strength of employees of the appellants. He submits that, in the event, Rule Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

16(3) is read to mean that, an employee is entitled to apply for reversion, then,

there will be a human resource nightmare for the appellants. Any person will

apply for reversion under umpteen number of circumstances and the

management would be in a quandary to address all of the issues.

5. Learned advocate appearing for the appellants submits that, the

service conditions of the private respondent allows the management to declare

an employee as voluntarily vacated his post. In this regard, he refers to Rule

40(3) of the Service Rules of 1992. He submits that, first notice in terms of

Rule 40(3) of the Service Rules of 1992 was issued on June 16, 2022 since, the

private respondent was absenting himself unauthorizedly since January 5,

2021. He refers to the second notice issued on September 19, 2022. He

submits that, the second notice dated September 19, 2022 contains the order

of voluntary vacation of service so far as private respondent is concerned. Such

notice was received by the private respondent on September 21, 2022. The writ

petition was affirmed on September 23, 2022.

6. Learned advocate appearing for the appellants draws the attention of

the Court to the prayers made in the writ petition. He submits that, none of the

notices dated June 16, 2022 or September 19, 2022 were challenged by the

private respondent despite he being aware of the same.

7. Learned advocate appearing for the private respondent refers to the

list dates. He submits that, the appellants are bound by its own policy decision

guidelines as also service rules framed by it. He refers to the Rule 16(3) of the Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

Rules of 1992 as also the reversion policy as appearing in the handbook of the

appellants. He submits that, both Rule 16(3) of the Rules of 1992 as also the

reversion policy of the appellants permits an application to be made by the

employee concerned for the purpose of reversion. He submits that, in fact the

policy lays down an elaborate procedure to be followed when an employee

applies for reversion.

8. Learned advocate appearing for the private respondent submits that,

the private respondent followed the procedure laid down in terms of the

reversion policy. He submits that, there is no endorsement at the level of the

Circle Chief General Manager for the Chief General Manager (HR) at the

Corporate Sector, Mumbai to take a decision on the subject. Therefore, he

submits that, the decision taken of not allowing the application of reversion is

arbitrary. Consequently, he submits that, learned Single Judge did not err in

directing the appellants to reconsider the application for reversion.

9. Relying upon (1979) 1 Supreme Court Cases 590 (G. T. Lad & ors.

Vs. Chemical and Fibres of India Limited), learned advocate appearing for

the private respondent submits that, absence from duty ipso facto does not

mean the respondent abandoned service. Absence from duty was purely

temporary and could be condoned.

10. We considered the rival contentions of the parties.

11. We find that, the private respondent joined the services of the

appellants in the clerical post on December 31, 2012. Private respondent Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

participated in a selection process for promotion. Being successful therein, he

was promoted to Junior Manager Grade Scale-I in April 2020. Private

respondent was transferred to Bataspur Branch as Service Manager on July

28, 2020.

12. It is the claim of the private respondent that, he fell sick in

November 2020 and that, he applied for and obtained leave till January 4,

2021.

13. Private respondent made a representation dated January 29, 2021

for reversion to the post of clerical cadre. A medical board was constituted to

examine the physical condition of the private respondent on January 13, 2022.

Medical test was conducted. Medical Board submitted a report dated February

28, 2022 with the following conclusion:

"HE IS RECOMMENDED TO INVOLVE IN LESS STRESSFUL WORK."

14. By a letter dated April 26, 2021 private respondent submitted

another application for reversion of service to clerical grade. He prayed for two

months leave extension by a letter dated May 18, 2022.

15. The representation of the private respondent for reversion to the

clerical post was rejected on May 30, 2022. Thereafter, appellants invoked

provisions of Rule 40(3) of the Service Rules of 1992 as against the private

respondent. First notice under Rule 40(3) was issued to the private respondent

on June 16, 2022. Thereafter, on the private respondent not joining the

services, in terms of the first notice dated June 16, 2022, appellants issued an Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

order holding that, private respondent voluntarily vacated service with effect

from July 20, 2022 by a writing dated September 19, 2022.

16. The writing dated September 19, 2022 was received by the private

respondent on September 21, 2022. Writ petition of the private respondent was

affirmed on September 23, 2022. Prayers of such writ petition are as follows:-

"a) A Writ of and/or in the nature of Mandamus do issue directing the respondents to forthwith rescind/cancel and/or withdraw the impugned order of rejection of application of the petitioner for reversion of his service to clerical grade on medical ground which has been passed by the competent authority and communicated to the petitioner by the Regional Manager, Regional Business Office - IV, Durgapur, Respondent no.5 vide letter under Reference No.RBO(IV)DGP/GEN/144 Dated 30.5.2022 which is Annexure -"P-6" to the instant writ petition;

                                             b) A Writ of and/or in the nature of
                                          Mandamus         do     issue      directing   the
                                          respondents      to    forthwith     approve   the

application of the petitioner for reversion of his service to clerical grade from promotional post of Service Manager on medical ground and permits the petitioner to resume his duty to the said post of Clerical Grade;

Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta

17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

c) A Writ of and/or in the nature of Mandamus do issue directing the respondents not to take any step for voluntary vacation of service of the petitioner due to unauthorized absence from duty;

d) A Writ of and/or in the nature of Mandamus do issue directing the respondents to grant medical leave to the petitioner from 05.01.2021 till date of resumption of service to the clerical cadre;

e) A Writ or and/or in the nature of Certiorari do issue directing the respondent nos.2 to 8 to transmit and produce all relevant documents of the case before This Hon'ble Court so that conscionable justice to be rendered to the petitioner;

f) Rule NISI in terms of the prayers (a), (b),

(c), (d) and (e) above and make the Rule absolute if no sufficient causes are shown;

g) Interim order restraining the respondents and their men and agents not to take any step for termination of service of the petitioner on the ground of unauthorized absence from duty till disposal of the instant writ petition;

h) Ad-interim order in terms of prayer (g) above till hearing of the instant writ petition

i) To pass such other order or orders and/or further order/orders as to Your Signed By :

CHINMOY CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

Lordships may deem fit and proper for the ends of justice."

17. Decision taken by the appellants under Rule 40(3) of the Rules of

1992 as contained in the writing dated September 19, 2022 received by the

private respondent on September 21, 2022 was not challenged in the writ

petition filed by the private respondent.

18. The inevitable conclusion is that, the private respondent accepted

the decision of the appellants in terms of Rule 40(3) of the Rules of 1992 as

embodied in the letter dated September 19, 2022 by not challenging the same

in his writ petition. The private respondent allowed such decision to attain

finality despite being aware of the same prior to filing of the writ petition.

19. Learned Single Judge by the impugned order directed

reconsideration of the application for reversion made by the private

respondent. Since the decision of the appellants that, the private respondent

voluntarily vacated his service with effect from July 15, 2022 was not to under

challenge, directing the reconsideration of an application for reversion, in

respect of a person who was no longer in the employment of the appellants, on

the date of passing of the impugned order, was not required.

20. In view of the decision of the appellants as embodied in the writing

dated September 19, 2022 not being under challenge, we are not minded to

enter into the arena as to the interpretation of Rule 16(3) of the Rules of 1992

Signed By :

CHINMOY as propounded by both the parties. CHAKRABORTY High Court of Calcutta 17 th of September 2024 05:06:56 PM

MAT 1728 of 2022 with MAT 64 of 2023

21. Similarly, the ratio laid down in G. T. Lad & ors. Vs. Chemical and

Fibres of India Limited (supra) is not attracted in view of the conduct of the

private respondent.