The Disciplinary Authority And ... vs S Lakshminarayana
2021 Latest Caselaw 5916 Kant

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     IN THE HIGH COURT OF KARNATAKA AT BENGALURU

      DATED THIS THE 10TH DAY OF DECEMBER 2021

                          PRESENT

         THE HON'BLE MR. JUSTICE ALOK ARADHE

                            AND

     THE HON'BLE MR.JUSTICE ANANT RAMANATH HEGDE

               W.A. No.3941 OF 2019 (S-PRO)
                            IN
               W.P. No.54014 OF 2016 (S-PRO)

BETWEEN:

1.    THE DISCIPLINARY AUTHORITY
      AND CENTRAL MANAGER
      CENTRAL MANAGER
      PUNJAB NATIONAL BANK
      NO.7, BHIKAIJI CAMP PLACE
      HEAD OFFICE, NEW DELHI-110 607.

2.    THE EXECUTIVE DIRECTOR
      GENERAL MANAGER
      PUNJAB NATIONAL BANK
      NO.7, BHIKAIJI CAME PLACE
      HEAD OFFICE, NEW DELHI-110 607.

3.    THE MANAGING DIRECTOR
      AND CHIEF EXECUTIVE OFFICER
      PUNJAB NATIONAL BANK
      NO.7, BHIKAIJI CAME PLACE
      HEAD OFFICE, NEW DELHI-110 607.

                                               ... APPELLANTS

(BY MR. UDAYA SHANKAR RAO .P, ADV.,)
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AND:

S. LAKSHMINARAYANA
AGED ABOUT 62 YEARS
R/AT NO. 68, 10TH CROSS
R.B.I. LAYOUT, J.P. NAGAR
7TH PHASE, BANGALORE-560 078.
                                             ... RESPONDENT
(BY MR. K.R. GANESH RAO, ADV., FOR C/R)
                           ---

      THIS WRIT APPEAL IS FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT, PRAYING TO SET ASIDE THE ORDER DATED
25/07/2019 PASSED IN WRIT PETITION NO.54014/2016 (S-PRO)
BY THE LEARNED SINGLE JUDGE.

     THIS W.A. COMING ON FOR FINAL HEARING, THIS DAY,
ALOK ARADHE J., DELIVERED THE FOLLOWING:

                         JUDGMENT

This intra court appeal, has been filed against the order

dated 25.07.2019 passed by the learned Single Judge, by

which the writ petition preferred by the respondent has been

disposed of.

2. Facts leading to filing of this appeal in nut shell

are that respondent in the year 2009 was promoted as

Assistant General Manager i.e., Senior Management Grade

Scale - V. In the year 2011, the respondent participated in

the process of promotion to the Top Executive Grade viz.,

Scale - VI. The appellant was found eligible for promotion as

on 01.05.2011, however, he was not promoted to the

aforesaid post on the ground that the vacant post were not

available. Thereafter, a charge sheet was issued to the

respondent on 29.09.2011, which was served on him on

10.10.2011. Thereafter, in the disciplinary enquiry,

respondent was exonerated by an order dated 28.01.2015.

However, by an order dated 29.01.2015 the respondent was

informed that he is not entitled to any financial benefits on

account of his promotion with effect from 2011. The

respondent challenged the validity of the aforesaid order in a

writ petition before the learned Single Judge. The learned

Single Judge by an order dated 25.07.2019, inter alia held

that the respondent is entitled to difference of salary in the

post of Deputy General Manager for the period from

01.10.2011 to 28.01.2015 and directed the appellants herein

to examine the same and to grant the amount along with

interest at the rate of 6% per annum. The respondent is

further held entitled for the next promotional post in the

event of any junior to the respondent is promoted for the

next higher post. In the aforesaid factual background, this

appeal has been filed.

3. Learned counsel for the appellants submitted that

the learned Single Judge ought to have appreciated that in

para 26 of the decision of the Supreme Court in UNION OF

INDIA AND OTHERS VS. K.V.JANAKIRAMAN AND

OTHERS', (1991) 4 SCC 109, it was held that the

entitlement of an employee for arrears of pay for the period

of notional promotion preceding the date of actual promotion

has to be decided by the competent authority. It is further

submitted that a conscious decision was required to be taken

by the appellants. However, the learned Single Judge has

directed payment of difference of salary for the post of

Deputy General Manager along with interest at the rate

of 6% per annum.

4. On the other hand, learned counsel for the

respondent submitted that in fact, the respondent was

promoted to the post of Deputy General Manager with effect

from 01.10.2011. In support of aforesaid submission

reference has been made to the communication dated

28.07.2015 issued by Executive Director of the appellants-

Bank to the respondent. It is further submitted that on the

date of promotion of the respondent to the post of Deputy

General Manager, a departmental enquiry was not pending

against him as a departmental enquiry is said to be instituted

in law when the employee received the charge sheet. It is

submitted that the respondent received the charge sheet on

10.10.2011, therefore, the sealed cover procedure could not

have been adopted by the appellants in case of the

respondent. It is also alleged that the respondent is entitled

for promotion to the next promotional post.

5. We have considered the submissions made by

learned counsel for the parties and have perused the record.

The solitary issue, which arises for consideration in this

appeal is with regard to the eligibility of the respondent with

regard to difference of salary to the post of Deputy General

Manager from the period 01.10.2011 to 28.01.2015. Before

proceeding further, it is apposite to take note of the para 26

of the decision of the Supreme Court in K.V.Janakiraman and

Others supra, which is extracted below for the facility of

reference:

26. We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings. However, there may be cases where the proceedings, whether disciplinary or criminal, are for example, delayed at the instance of the employee or the clearance in the disciplinary proceedings or acquittal in the criminal proceedings in with benefit of doubt or on account of non-availability of evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it. Life being complex, it is not possible to

anticipate and enumerate exhaustively all the circumstances under which such consideration may become necessary. To ignore, however, such circumstances when they exist and lay down an inflexible rule that in every case when an employee is exonerated in disciplinary/criminal proceedings he should be entitled to all salary for the intervening period is to undermine discipline in the administration and jeopardise public interests. We are, therefore, unable to agree with the Tribunal that to deny the salary to an employee would in all circumstances be illegal. While, therefore, we do not approve of the said last sentence in the first sub-paragraph after clause (iii) of paragraph 3 of the said Memorandum, viz., "but no arrears of pay shall be payable to him for the period of notional promotion preceding the date of actual promotion", we direct that in place of the said sentence the following sentence be read in the Memorandum:

"However, whether the officer concerned will be entitled to any arrears of

pay for the period of notional promotion preceding the date of actual promotion, and if so to what extent, will be decided by the concerned authority by taking into consideration all the facts and circumstances of the disciplinary proceeding/criminal prosecution. Where the authority denies arrears of salary or part of it, it will record its reasons for doing so".

6. Thus, on careful scrutiny, of the aforesaid

decision of the Supreme Court, it is evident that it has been

held that the disciplinary or criminal proceedings instituted

against the employee may be delayed at his instance. It has

further been held that in such circumstances, the authorities

must be vested with the power to decide whether the

employee at all deserves any salary for the intervening

period and if he does, to extent to which he deserves it. The

finding recorded by the tribunal in the aforesaid decision that

to deny the salary to an employee would in all circumstances

be illegal has been set aside. Thus, in the aforesaid decision,

it is squarely been held that whether or not an officer would

be entitled to any arrears of pay for the period of notional

promotion preceding the date of actual promotion and if so,

to what extent, has to be decided by the concerned authority

by taking into account all facts and circumstances of the

disciplinary proceedings. It has further been held that when

the denies arrears of salary or part of it, it will it will record

its reasons for doing so. The direction issued by the learned

Single Judge directing the appellants herein to make

payment of difference of salary to the respondent for a

period from 10.01.2011 to 28.01.2015 for the post of Deputy

General Manager along with interest at the rate of 6% per

annum, the direction has been issued in violation of law laid

down in para 26 of the judgment of the Supreme Court. The

aforesaid direction therefore, cannot be sustained in the eye

of law.

7. So far as submissions of the respondent that

sealed cover procedure could not have adopted by the

appellants herein in case of respondent is concerned, the

same is untenable. It is trite law that a departmental

proceeding is initiated on the date when a charge sheet is

issued. In the decision of K.V.Janakiram and others supra, a

three judge bench of the Supreme Court has held that

departmental enquiry can be said to be initiated only from

the date of issue of charge sheet. Therefore, the subsequent

decision in DELHI DEVELOPMENT AUTHORITY VS.

H.C.KHURANA, AIR 199 SC 1488, by a two Judge bench of

the Supreme Court is of no assistance.

8. In the instant case, the charge sheet was issued

on 29.09.2011 whereas, the appellant is found eligible for

promotion with effect from 01.10.2011. Therefore, the

submission that the appellants herein could not have adopted

the sealed over in case of the respondent deserves to be and

is hereby repelled.

9. In view of preceding analysis, the impugned

direction contained in para 5 of the order passed by the

learned Single Judge directing the appellants to pay

difference of the salary to the post of Deputy General

Manager for a period from 01.10.2011 to 28.01.2015 along

with interest at the rate of 6% per annum is hereby set

aside. The appellants herein are directed to consider the

entitlement of the respondent with regard to difference of

salary to the post of Deputy General Manager from

01.10.2011 to 28.01.2015 in accordance with the parameters

laid down by the Supreme Court in para 26 of the decision in

the case of K.V.Janakiraman supra within a period of three

months from the date of receipt of copy of this order.

Needless to state that the competent authority shall pass a

speaking order in this regard. It is further clarified that in

case, the respondent is found entitled for consideration to the

next promotional post, his case shall be considered in

accordance with law within the same period. To the

aforesaid extent, the judgment passed by the learned Single

Judge is modified.

In the result, the appeal is disposed of.

Sd/-

JUDGE

Sd/-

JUDGE

SS