Mathew Joseph vs Andhra Bank, Head Office, Saifabad, Hyd. and others

The petitioner has challenged clause 2(a) of the promotion policy of the respondent Bank issued vide Circular No.56, dated 25-4-1991. Notice was issued and the respondents Counsel has argued the matter on instructions. No counter has been filed.

The facts are not disputed. Vide order dated 19-5-1999 the petitioner was imposed with a punishment of reduction of pay by one stage with cumulative effect. This punishment is a major punishment in accordance with the Rules. The petitioner has preferred an appeal to the appellate authority. In the meantime the petitioner''s case for promotion came to be considered. The respondents have considered the case of the petitioner as per clause 2(a) ofthe promotion policy and a letter was communicated to the petitioner. The Committee of Executives reviewed the case and framed the following opinion :

"The executive was issued a charge-sheet on 8-11-96 for the irregularities committed by him while working as Chief Manager of Bhubaneshwar Main branch by accommodating a particular group viz. Sri Suman Naik, Lingaraj Rath, N.C. Naik, Manoj Kumar Rath, Ashok Naik and M/s Basanth Foods (P) Ltd., (in which Sri Suman Naik and Sri Manoj Kumar Rath were Directors) and also M/s S.L.Textiles (P) Ltd., (in which Sri Suman Naik & Lingaraj Rath were Directors) by way of clean overdrafts, Agrl. Term loans, Term loans, PC and Ad hoc PC against norms of the Bank resulling in the accounts becoming slickly with a liability of Rs.60.93 lakhs.

Disciplinary authority imposed major penalty of reduction of pay by one stage with cumulative effect vide order dated 19-5-1999.

It is also observed from the records that sanction was accorded to CBI, Hyderabad on 28-6-96 to prosecute the officer for his alleged involvement in obtaining pecuniary advantage from ABFSL by way of Commission in respect of some deposit accounts and prosecution proceedings are in progress. Taking into consideration of the above factors, the committee is not inclined to permit the officer to attend the interview."

Section 2(1) of the promotion policy lays down :

"2.(a) Officers in respect of whom disciplinary action has been taken in the past would not normally be permitted to participate in the promotion process for a period of three years from the date of infliction of any punishment except censure. In all such cases (except censure), a Committee of Executive at Central office appointed by the Chairman & Managing Director would however, review and take a decision in regard to the gravity of the misconduct and subsequent record."

The case of the petitioner is that clause 2(a) of the policy is contrary to the Constitutional provisions. The ground was taken but the argument was rightly not vehemently pursued, because, such provisions have been upheld by the Apex Court. In Union of India and others Vs. K. Krishnan, , a postman had appeared for a promotion test, he was successful at the test, but before an order for promotion could be issued he was found guilty in a disciplinary proceeding and was punished by withholding increment in salary for a period of one year and six months, as a result of this punishment he was not promoted. Rule 157 of the post and Telegraph Manual laid down that, where an authority considers a candidate fit for promotion in spite of punishment in a departmental proceeding, the promotion shall not be given effect to during the currency of the penalty. This rule was upheld by the Supreme Court. On the same anology, it can safely be said that the petitioner in the present case not be promoted during the currency of the punishment.

The learned Counsel for the petitioner further submitted that the letter dated 9th June, 1999 does not make a mention that the review was considered in the light of Clause 2(a) of the Promotion Policy but the petitioner''s case is that his case was reviewed in accordance with the guidelines framed under Clause 2(a). He submits that there is no scope for framing guidelines as such the consideration itself is bad. The guidelines which have been issued for review of the cases under Clause 2(a) have also been produced before this Court and they are dated 24-5-1997.

Clause 2(a) in itself prohibits promotion of officers for a period of three years but at the same time it creates an exception in such cases where the Committee of Executives take a contrary decision keeping in view the gravity of the misconduct and subsequent service record. I do not find guidelines issued on 24-5-1997 are in any way in contradiction to clause 2(a) of the policy. What clause 2(a) permits by way of an exception is also permitted by the guidelines, but in order to have a uniform policy and to avoid arbitrariness those guidelines have been framed. In any case the petitioner is not at all prejudiced by the guidelines. The Committee has taken into consideration the gravity of the offence and they have mentioned that the misconduct of the petitioner resulted in the accounts becoming sticky to the liability of Rs.60.93 lakhs. The consideration before three years could be granted on the basis of the service record subsequent to punishment. The punishment was given to the petitioner and on 19th May, 1999 and review was taken on 1st June, 1999, therefore, the subsequent conduct of the petitioner in the present case would not be a material factor. Therefore, in my view, even by the guidelines the petitioner is not prejudiced. Even otherwise it does not appeal to common sense that the person who was punished for misconduct is promoted within one month of such a punishment.

For these reasons, I do not find any merit in this petition which is accordingly dismissed.