Arun Kumar Sinha vs The Vananchal Gramin Bank
2021 Latest Caselaw 3349 Jhar

     IN THE HIGH COURT OF JHARKHAND AT RANCHI
                      W.P.(S) No. 2422 of 2011
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   Arun Kumar Sinha                            ..... Petitioner
                               Versus

1. The Vananchal Gramin Bank, through Chairman, Vananchal Gramin Bank, Dumka

2. The General Manager, Vananchal Gramin Bank, Vananchal Gramin Bank, District Daltonganj

3. Jharkhand Rajya Gramin Bank through its Chairman, Ranchi ..... Respondents

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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN

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For the Petitioner : Mr. Saurav Arun, Advocate For the Respondents : Mr. Nipun Bakshi, Advocate

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23/09.09.2021 Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by the petitioner praying therein for quashing of the letter dated 17.08.2007 (Annexure 7) issued by Respondent No.2 whereby the decision has been taken not to give effect or open sealed cover in respect of the promotion of the petitioner as departmental proceeding against this petitioner ended with imposition of penalty.

During pendency of this case, the petitioner was promoted w.e.f. 09.10.2012; as such by way of amendment application he also prayed to shift the date of promotion from 09.10.2012 to 07.03.2005; as the junior to the petitioner got promoted on 07.03.2005. The said I.A. No. 6869 of 2018 was allowed.

3. The facts of the case lie in a narrow compass. While the petitioner was working as Branch Manager at Ataula under the respondent Bank, a departmental proceeding was initiated against the petitioner for the period when the petitioner was posted at Deori Cement factory Branch. Charges have been levelled against him for not fulfilling the norms of the Bank and for that the Bank has suffered a loss. In the departmental proceeding the petitioner appeared and final order was passed on 25.6.2005 imposing a punishment of recovery of Rs.20,000/- for the loss caused to the Bank.

However, prior to the aforesaid punishment order, a seniority list was prepared by the respondent Bank on 29.11.2004 in which the petitioner was placed at serial No.15. On 18.12.2004, a circular was issued for promotion from Junior Manager Grade I to Middle Manager Grade II, and number of posts have been shown to be vacant to which promotions were to be granted and written examination was to be held on 23.01.2005 and in the said circular it was also stated that all those who fulfills the requisite qualification can apply.

Subsequently, on 07.03.2005 a letter was issued which contained the names of the employees who appeared and found successful in the written examination conducted for promotion and in the said list, the name of this petitioner stood at serial no. 1 under the heading of list of candidates who qualified in the written test for promotion to Middle Manager, Grade II. Consequently, on 21.4.2005 promotion was given to several other employees, however it has been stated that those persons against whom Departmental Proceeding was initiated or likely to be initiated, their case has been withheld. Thereafter, the respondent Bank also took a decision to open the sealed cover in cases where the departmental proceeding comes to an end and accordingly, two persons were promoted; however, against whom punishment has been imposed and recovery has been made from the delinquent, their cases were not considered.

The grievance of the petitioner is that from the impugned order itself it transpires that the decision taken with respect to promotion of the petitioner was kept in a sealed cover. However, it was stated by the General Manager of the Bank that the appointing authority has decided not to give effect to the decision kept in the Sealed Cover, as the departmental proceeding ended with the imposition of penalty.

4. Mr. Saurav Arun, learned counsel for the petitioner submits that this decision of the Bank that Sealed Cover will not be opened even after imposition of penalty is not in accordance with law. He further submits that non- opening of the Sealed Cover is against the settled law as held in the case of Union of India & Ors Vs. K.V. Jankiraman & Ors. reported in AIR 1991 SC Page 2010 where the guidelines has been laid down for the respondents to follow the procedure of Sealed Cover.

He contended that the procedure of Sealed Cover has been well elaborated in the aforesaid case and a General Manager cannot override the decision of the Departmental Promotion Committee, who has purposefully kept the case of the petitioner in Sealed Cover. Relying upon the aforesaid judgment he submits that the petitioner becomes eligible for promotion in the year 2005 itself, inasmuch as, the penalty was imposed upon this petitioner; even the fine of Rs.20,000/- was also recovered by the month of November, 2005 in three equal instalments.

He further referred to the counter affidavit and submits that the Debarment Policy, where it has been mentioned that the Sealed Cover procedure becomes infructuous if any person is punished, is not applicable in the case of the petitioner as the said Debarment Policy was issued on 02.01.2015 and in absence of any specific service condition, the action of the respondent for not opening the sealed cover and treating it to be infructuous has no legs to stand in the eye of law.

He lastly submits that if for a particular offence respondents have punished the petitioner with a fine of Rs.20,000/- then they cannot punish him twice by not giving him promotion for the next seven years as it will amount to double jeopardy as one person cannot be punished twice for the same offence.

Before concluding he draws attention of this court towards the order of punishment (Annexure-12) and submits that the respondents have admitted that the loss occurred to the Bank was due to shortage of staff; as such, it was neither intentional nor gross negligence. In this view of the matter, the impugned order as contained in Annexure-7 to the writ application be quashed being issued without jurisdiction and the date of the promotion which was finally given in the year 2012 should be shifted to the date when the punishment imposed upon the petitioner was given effect to by recovering the amount.

5. Mr. Nipun Bakshi, learned counsel for the respondent Bank opposed the prayer of the petitioner and submits that the petitioner's claim that the Sealed Cover should be opened after the punishment is given effect to is absolutely incorrect, inasmuch as, the Debarment Policy (Sealed Cover Procedure) does not permit opening of Sealed Cover except in case of censor/warning. Further, the effect of punishment disentitles consideration of the candidature of an employee for the period during which such punishment is enforced. Further, no person has been given promotion de- hors the departmental policy.

As a matter of fact, the petitioner has misconstrued the order by which it has been mentioned that decision to open the Sealed Cover has been kept in reserve. He strongly contended that that there is no provision for opening Sealed Cover in case of the employees who are found guilty of the charges and are punished pursuant to departmental proceeding. The only exception to this general rule is censor/warning and for all other punishment the employee loses the right to be considered for promotion and his Sealed Cover is never opened.

He further submits that the petitioner has already been promoted under the fast track channel by promotion order dated 09.10.2012 and thereafter he has also

superannuated from service on 28.02.2013 and has received the entire retiral benefits including gratuity.

On a specific query as to whether the Debarment Policy will be applicable in case of the employees of the bank where the petitioner was employed; he relied upon Paragraph 10 of the counter affidavit which says that initially the petitioner was working with Palamau Kshetriya Gramin Bank which was subsequently merged with Santhal Paragana Gramin Bank and after amalgamation this Bank was known as Vananchal Gramin Bank; now known as Jharkhand Rajya Gramin Bank.

By relying upon the aforesaid affidavit Mr. Bakshi further submits that the Debarment policy is also applicable to the employees of the Bank prior to merger. However, Mr. Bakshi is unable to show any document in support of his contention that the Debarment Policy was operative when the case of the petitioner was taken into consideration for promotion by the DPC.

He lastly submits that now since the petitioner has retired and received all retiral benefits and further he has been promoted under the Fast Track Channel before his retirement; no fruitful purpose would be served by changing his date of promotion; as such this writ petition should be dismissed.

6. Having heard learned counsel for the parties and after going through the documents annexed with the respective affidavits and the averments made therein, in view of the admitted facts of the case following issues emerges for consideration before this court.

(i) When there was no specific provision for debarment of promotion in Palamau Kshetriya Gramin Bank when the case of this petitioner was considered by D.P.C. whether the Sealed Cover procedure should have been adopted by the respondent Bank after the punishment was imposed ?

(ii) Whether the Debarment Policy which comes into effect on 02.01.2015 will be applicable in the case of the petitioner as the said policy is of the Bank namely Vananchal Gramin Bank Ltd. ?

           (iii)    When    the    punishment      of     recovery   of
           Rs.20,000/-      was     over    by    January'2006       by
           recovering      the    said   amount    in     three   equal

installments; as to whether the petitioner should suffer the rigors of punishment for next seven years ?

(iv) Whether the action of the respondents in not giving promotion to the petitioner on the ground that he has been punished does not amount to punishing the delinquent twice for one charge.

7. So far as first issue is concerned; after examining the documents it becomes clear that the Debarment Policy which has been adopted in case of the petitioner was non- existing during the period when the petitioner was working in Palamau Kshetriya Gramin Bank; as such, this court holds that since there was no specific provision for debarment of promotion in Palamau Kshetriya Gramin Bank when the case of this petitioner was considered by D.P.C., the Sealed Cover procedure should have been adopted and the non-opening of the Sealed Cover is non est in the eye of law.

8. So far as Issue no.(ii) is concerned, the Debarment Policy firstly came in the year 2015 and it has been specifically stated that this policy will come with immediate effect; meaning thereby to say, this debarment policy dated 02.01.2015 of Vananchal Gramin Bank will not have any retrospective effect.

9. So far as Issue no.(iii) is concerned, after recovery of Rs.20,000/- by the bank in three monthly installments, the petitioner should not have suffered rigors of punishment for next seven years, inasmuch as, the order of punishment (Annexure-12) itself transpires that the respondents have

admitted that the loss occurred to the Bank was due to shortage of staff; so the charge was neither intentional nor of gross negligence, as such the respondent Bank was bound to open the sealed cover and to take a decision in accordance with the recommendation of the D.P.C. after the effect of punishment was over and the recovery was made.

10. So far as the last issue is concerned, this court is of the view that the action of the respondent bank in not giving promotion to the petitioner after the period during which the order of punishment of recovery of Rs.20,000/- is given effect to, by recovering the amount in three equal instalments, amounts to punishing the petitioner twice for the same offence as it has been held in a catena of judgments that for not giving promotion to any employee on the ground that punishment has been imposed upon him with respect to any offence amounts to punishing the petitioner twice for the same offence.

The Patna High Court has held in the case of Dhirendra Nath Saha vs. State of Bihar & Ors. reported in 1999 1 PLJR 391 in Paragraph 8 as under:

"8. As noted above the opinion of the Board that the petitioner was guilty of a misconduct involving moral turpitude is based on the nature of the charge rather than the final ORDER: passed by the Zonal I.G. in the disciplinary proceeding. Once an ORDER: of punishment is passed finally, the delinquent would only suffer the legal consequences arising from that ORDER: and it would not be permissible to go back to the charges to deny him promotional benefits. Otherwise it would amount to punishing a delinquent employee twice over for the same charge(s)."

11. As a matter of fact the respondent Bank being an instrumentality of the State should act fair and admittedly in the order of punishment it has been admitted by the Bank that since there was shortage of staff which led to the loss of the bank. Even otherwise, the petitioner has already been

punished for the said offence and cannot be punished twice by refusing him promotion for another seven years.

12. In view of the aforesaid discussions; all the issues has been answered in favour of the petitioner and consequently; the letter dated 17.08.2007 (Annexure 7) is quashed and set aside.

The respondents are hereby directed to open the Sealed Cover and grant promotion if the petitioner is found successful after adopting the Sealed Cover Procedure as laid down in the case of Union of India & Ors Vs. K.V. Jankiraman & Ors. reported in AIR 1991 SC Page 2010 where the guidelines has been enunciated for the respondents to follow the procedure of Sealed Cover.

If however, the said document is not available i.e. recommendation of DPC is not available on record because of the fact that due to passage of time and also the fact that the original bank where the petitioner was initially employed, namely Palamau Kshetriya Gramin Bank was merged with Santhal Paragana Gramin Bank and again amalgamated to Vananchal Gramin Bank and now Jharkhand Rajya Gramin Bank, as such; there is possibility of misplacement of document; then in that case, respondent Bank is directed to shift the date of promotion from 09.10.2012 to 07.03.2005; as the junior to the petitioner got promoted on 07.03.2005.

Needless to say that since the matter is very old, all consequential benefits in accordance with law, rules, regulations of the Bank shall be extended to the petitioner within a period of four months from the date of receipt/production of a copy of this order.

8. With the aforesaid observation and direction the instant writ application is allowed and disposed of.

(Deepak Roshan, J.)

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