Sh. Prem Nath Narula vs Syndicate Bank And Ors.
2005 Latest Caselaw 378 Del

JUDGMENT

Manmohan Sarin, J.

1. Petitioner by this writ petition seeks a declaration that the order dated 28th October,2003 purported to have been passed under Regulation 19(1) and 19(2) of Syndicate Bank Officers Service Regulations,1979 (hereinafter referred to as the Regulations,1979) be quashed as illegal, arbitrary, malafide and discriminatory. Petitioner also claims costs of the writ petition and consequential benefits.

2. Petitioner had joined the service of respondent Bank as Clerk on 17.7.1973. In due course, he was promoted as an officer of the respondent Bank in the Junior Management Grade Scale-I after successfully clearing competitive written examination. The petitioner served the respondent Bank in various capacities as Asstt. Manager, Manager and Branch Manager. He was promoted from the Junior Management Grade Scale-I to Middle Management Grade Scale-II, a position which he presently holds. He was posted as Manager of the Bank at Sukhdev Vihar.

3. Petitioner claims that he has diligently and honestly performed his duties and that he has received several letters of appreciation also. Petitioner claims that he was rated average and above average and never below average through out his career. Petitioner, therefore, was shocked to receive the notice/ order dated 28.10.2003 passed under Regulation No. 19(1) and 19(2) of Regulations, 1979. Petitioner was informed that the Competent Authority had formed an opinion that it was not in the interest of the bank or public interest and it was not desirable to let the petitioner continue in the service of the bank. Consequently, an order to retire the petitioner from the services of the bank w.e.f. 1.2.2004 was passed. Petitioner alleges discrimination in as much as he says that there are personnel who have been charge-sheeted and against whom disciplinary proceedings have been initiated, who have been allowed to continue and respondents have followed a policy of pick and choose and retired the petitioner compulsorily.

4. Learned counsel for the petitioner submits that the order of retirement is vitiated as it takes into notice allegedly old incidents of 1990. Petitioner claims that he was selected for promotion in 2000 which was given to him in the year 2001. Petitioner was promoted on merit and not on time scale based on seniority. He places reliance on the decision of Division Bench of this Court in the case of V.K. Issar v. Union of India and Ors. 2004 IV AD (Delhi) wherein the Court relying on Badrinath v. Government of Tamil Nadu and Ors. reported at and Baikuntha Nath Das v. Chief District Medical Officer reported at , had held that it would not be reasonable and just to consider adverse entries of remote past and to ignore good entries of recent past. If entries for a period of more than 10 years past are taken into account, it would be an act of digging out past to get some material to make an order against the employee. It was held that unless an adverse report is communicated and representation, if any, made by the employee is considered, it may not be acted upon to deny the promotion. The same consideration applies where adverse entries are taken into account in retiring an employee prematurely from service. In the cited case petitioner therein was retired on 1.5.1998 and alleged adverse entries for the years 1976, 1977, 1979, 1987, 1989-90 and 1992-93 were taken into consideration.

5. Learned counsel next contended that the assessment of respondents with regard to the petitioner having lack of initiative and diligence, were never communicated to the petitioner, to enable the petitioner to improve. Lastly he contended that the order dated 28.10.2003, shows that opportunity to show cause was an empty formality in as much as it was evident that respondents had made up their mind and there was no objective consideration of the petitioner's representation. Petitioner also mentions that in the entire review of 974 candidates only 8 persons were picked out, out of which representation of two persons had been accepted who had been given time for an year or so to improve their performance. Petitioner was denied this opportunity also.

6. Mr. Jagat Arora at the out set states that the eighth missing person referred to by the petitioner is the person who never objected to his termination and hence there was no question of reconsidering his case. No representation was made by him.

Records had been called for and the record relating to the evaluation by the Special Committee as also the consideration of the representation made have been seen. It is stated that process of evaluation by the Committee shows that the show cause notice of 1990, which resulted in punishment of stoppage of increment as also the disciplinary proceedings for a minor penalty on 1.8.1998 where the petitioner was censured were noted as part of the record. It may also be noted that the punishment of 1998 cannot be said to be that far remote. The main plank of the submissions of respondents is that assessment of the petitioner in the last 10 years had been 'good' only on two occasion. Besides he lacked diligence and initiative. It is in this background that the case of the petitioner has to be considered.

7. I find considerable merit in the submissions of respondents. Petitioner's allegation of malafides are devoid of any material and have no substance or foundation. Similarly, Regulation 19(1) and 19(2) are clear, in as much as what is required to be communicated and against which a representation can be made to the Board of Directors is an order or decision of the Special Committee with regard to retirement of the petitioner upon attaining the age of 55 years of age or completing 30 years of service, whichever is earlier. The Scheme of Regulation 19 is not based on a show cause notice being issued for the proposed action. Rather it is to show cause against the decision taken. The record also reveals consideration of the petitioner's representation by the Board of Directors, who found no merit in it. It may also be noted that in the case of V.K. Issar (Surpa) the Court was concerned with a case where adverse entries of remote past were being taken into consideration and good entries of recent past were sought to be ignored.

8. Learned counsel for the petitioner laid considerable emphasis on the fact that petitioner had been promoted from Junior Management Grade I to Middle Management Grade II in the year 2001. He submits that this selection was not a time scale one but was based on evaluation of merit. Petitioner has placed on record the promotion policy dated 21st October, 1999 and 2nd May, 2001. Broadly the criteria for selection is based on the marks being awarded under the Heads of Performance, Appraisal Qualification, Potential Appraisal and overall performance. In the year 2001, marks for potential, as identified in the interview, were to be considered. The thrust of the submission being that if in 2001, he was found fit for promotion, he could not be assessed as lacking potential and retired pursuant to the provisions of Regulation 19. Mr. B.R. Sharma further submits that the action of the respondent/Bank was not bona fide, inasmuch as, petitioner appears to have been singled out, while others similarly placed did not get the axe. He also submits that the action was lacking in bona fides.

9. Mr. Jagat Arora in opposition has produced, for perusal of the Court, the entire personnel record of the petitioner. The record reveals that in May, 1990, petitioner had been issued a statement of imputation of lapses in passing withdrawal slips with differing signatures and for the act of misconduct, he was imposed punishment of stoppage of one increment for the period of two years. There was also a charge sheet for the minor penalty for failure to observe office timings and follow reasonable orders of seniors and permitting the staff to leave early. Petitioner had been censured by the Disciplinary Authority. A perusal of the record shows that the performance of the petitioner in the last 10 years was rated as GOOD only for two years i.e., way back in the years 1994-95 and 1995-96, and for all other years, his performance had been rated as AVERAGE. Even for the year, when the petitioner received the promotion, the overall performance was rated as AVERAGE with the comments that potential is not put to use to the required level. In the latest year, the overall performance was with the remarks Needs improvement in all areas of discipline. As regards the factum of promotion, it has also been explained by the respondent Bank that following the VRS exodus, there were 1151 vacancies and total number of candidates for the post were 1194, which made it comparatively easy to get promoted. Learned counsel for the petitioner in an attempt to rebut this submits that nevertheless petitioner must meet the merit criteria before being promoted.

10. Reference is invited to State of Orissa and Ors. v. Ram Chandra Das reported at 1996 LAB I.C.2062, where the Court negatived the contention that a promotion granted earlier would negate the order of compulsory retirement. The Court observed:

merely because a promotion has been given even after adverse entries were made, cannot be a ground to note that compulsory retirement of the Government Servant could not be ordered. The evidence does not become inadmissible or irrelevant as opined by the Tribunal. What would be relevant is whether upon that state of record as a reasonable prudent man would the Government or Competent Officer reach that decision. We find that self-same material after promotion, may not be taken into consideration only to deny him further promotion, if any. But that material undoubtedly would be available to the Government to consider the overall expediency or necessity to continue the Government Servant in service after he attained the required length of service or qualified period of service for pension. It is also made clear that in this case, adverse entries were made only after promotion and not earlier to promotion. Compulsory retirement is not a punishment. He is entitled to all pensionary benefits.

11. Reference may also be invited to the Writ Petition No. 394/2004 filed by one Harshvardhan Manohar Bapat who was also compulsorily retired in the review carried out of officers who had completed 55 years of age and/ or 30 years of service in terms of Regulation No. 19 for the respondent bank, along with present petitioner's case. The writ petition was dismissed by the Division Bench of the Bombay High Court vide orders dated 9.3.2004. This was also a case where the record of Harshvardhan Manohar Bapat was not found up to the mark. The said officer, like the petitioner, had also been subjected to either a penalty or punishment in the past. He was also found to be an average officer. The Division Bench dismissed the writ petition holding that the Bank could not be said to have committed any illegality in directing compulsory retirement of the said employee. The present case is also on the same lines except for the plea raised of petitioner having been promoted which has been dealt with in para 9 above.

12. I find that based on the averments made in the counter affidavit as well as the personnel record, as produced, the action of the respondent/Bank in exercising its discretion to invoke Regulation 19 in the case of the petitioner, cannot be said to be arbitrary or having been taken without due consideration of the record and material before it. There are no specific allegations of mala fides against any particular official or members of the Committee. Considering that as per the assessment, petitioner has almost all along been assessed as an Average Officer with improvement required in several key areas of responsibility. The average performance is coupled with lack of initiative and seriousness about work.

13. The action of respondent cannot be said to be vitiated on account of any arbitrariness or illegality in directing the compulsory retirement of the petitioner. I do not find any ground made out for judicial review of the order, imposing pre-mature compulsory retirement, which is permissible if the order is not arbitrary, mala fide or is based on no evidence. The impugned order is not vitiated by any such infirmity.

Writ petition is dismissed.