Reshma B. vs State Bank Of India

Anu Sivaraman, J

This writ petition is filed seeking the following reliefs:

“i) call for records leading to Ext.P7 and issue a writ in the nature of certiorari quashing Ext.P7.

ii)issue a writ in the nature of mandamus commanding the respondents to promote petitioner to the post of clerk in accordance with Ext.P4 final list, within such time as may be fixed by this Hon'ble Court.”

Heard the learned counsel for the petitioner as well as the learned counsel appearing for the respondents.

The petitioner was appointed as Messenger (Peon) in the State Bank of India. She is a Post Graduate having M.com Degree. She had filed a complaint regarding work from home arrangement availed by one of the employees. It is submitted that alleging that the petitioner had made an anonymous complaint, a show-cause notice was issued to the petitioner. A reply was submitted on 6/10/2021. Thereafter Ext.P1 charge memo was issued on 18/11/2021. It is submitted that Ext. P2 final order was issued imposing the penalty of stoppage of increment for a period of three months. It is submitted that in the meanwhile a notification was issued on 2.12.2021 for selection to the post of Clerk. The petitioner applied, pursuant to which Ext.P3 hall ticket was issued to her. She participated in the selection and was included in Ext.P4 final select list for promotion from subordinate to clerical cadre. It is submitted that when the petitioner was not called for medical examination, Ext. P6 representation was submitted by her pursuant to which Ext P7 order was passed on 8/4/2022 stating that her inclusion in the final select list is cancelled, since the rigor of the punishment imposed on her by Ext.P2 would expire only on 27/3/2022. It is submitted by the learned counsel for the petitioner that having considered her for selection and having included her in the final select list, it is not open to the respondents to contend that selection stood cancelled because of the infliction of a minor penalty on her.

A detailed counter affidavit has been placed on record by respondents 1 to 4 contending that the punishment imposed on the petitioner was stoppage of increments for three months. It is contended that since the normal date of increment of the petitioner is on the 4th of September, the punishment would take effect from 4/9/2022 and the period of the punishment would be over only on 4/12/2022. It is therefore contended that the permission granted to the petitioner to participate in the selection procedure was erroneous. It is further submitted that paragraph 4.9(ii)(c) of Chapter IV Vol.II of the HR handbook provides that where an increment of an employee has been stopped as a disciplinary action, he shall not be eligible for promotion till the period covered by such stoppage of increments expires. It is further contended that the petitioner was specifically told that her candidature is provisional and that the same would be liable to be cancelled in case of any irregularity. It is submitted that since it is obvious that the rigor of the punishment is not over, the petitioner cannot be promoted.

The learned counsel for the petitioner would contend that the HR handbook is not a statutory rule and that Rule 4.9 only speaks about the postponement of the promotion. It is contended that there is no provision which debars an employee for being considered for promotion. The learned counsel for the petitioner places reliance on a decision of the Madras High Court in V.Chenthamarakshan v.State Bank of India[MANU/TN/0688/1988] to contend that since the disciplinary action against the petitioner was perfectly well known to the bank and since the bank had required the petitioner to participate in the selection process, being fully aware of the same, they are now estopped from raising the contention that the petitioner is not liable to be promoted and that the participation in the selection process was irregular in any manner.

I have considered the contentions advanced. The petitioner has been permitted to participate in the selection procedure. She was also included in Ext.P4, which is purported to be a final select list. The only contention of the respondents is that the petitioner would not be eligible for promotion in terms of the HR guidelines. It is an admitted fact that the HR handbook are not statutory rules which are binding on the parties. I notice that even in the handbook the provision is only with regard to the debarment from promotion. 4.9(i)(a) provides that an employee against whom disciplinary action is contemplated for an offence amounting to fraud, misappropriation, forgery or any other act which prima facie amounts to criminal misconduct shall be debarred from promotion for a period not exceeding three years reckoned from the date such contemplation is advised to the employee in writing. 4.9 (ii) deals with cases where punishment has been awarded. 4.9 ii (c) provides that where an increment of an employee has been stopped as a measure of disciplinary action, he shall not be eligible for promotion till the period covered by such stoppage of increment expires, notwithstanding whether the three year period passes in the meantime. Therefore, even going by the specific provision relied on by the learned counsel for the respondents, the bar in respect of punishment already inflicted is only with regard to the promotion of the employee.

In the instant case, the petitioner's eligibility for promotion has been considered and the petitioner had been found eligible and included in the list. Therefore, even if all the arguments of the respondents are accepted, the consequence of the infliction of the penalty of stoppage of an increment for three months would only be that the petitioner would be ineligible for promotion during the period of operation of the punishment, that is, till the period of stoppage of increment is passed. It is not in dispute that the last increment of the petitioner was due on 4/9/2021. If that be so, the effect of Exhibit P2 final order would expire on 4/12/2022, that is, within three months from the date on which the punishment is made effective. Even in case the disbarment of promotion provided in the HR handbook is taken into account, I find no provision by which a person, against whom a punishment is imposed, is ineligible for consideration for promotion or for being promoted after the period of the penalty is over.

In the above factual situation, I am of the opinion that the impugned order by which the petitioner's candidature in the selection has been cancelled is not supported by any provision of law, including the provisions of the HR handbook. Therefore, the impugned order is set aside. There will be a direction to the respondents to grant the petitioner promotion in her turn after the rigor of the punishment has passed, that is, after 4/12/2022. Appropriate orders shall be passed without any delay, at any rate, within a period of two months from the date of receipt of a copy of this judgment.