PRALAY SARAN CHAKRABORTY Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) The prayer of the writ petitioner Shri Pralay Saran Chakraborty, in this writ petition are as follows : i) to pass an ex-parte ad-interim writ of mandamus, order or direction appropriate in the case directing the respondent No.4 the Assistant General Manager, State Bank of India, Regional Office, Bijay Kumar Chownrohani, Krishnanagar, Agartala, to allow the petitioner to resume duties at Bank's Regional Office, Bijay Kumar Chowmohani, Krishnanagar, Agartala, and to treat the writ petitioner as on duty from 8.5.1993 till he is allowed to resume his duties at the Bank's above Regional Office; to pay the petitioner immediately his salary and allowances for the months of October, November and December, 1993 and January, February and March, 1994; to allow the petitioner to continue his officiating appointment in the post of Middle Management Grade Scale II (in short, MMGS-II) till disposal of Title Suil No.32 of 1993; and to issue writ of certiorari or order or direction appropriate in the case and to quash the order of the learned Munsiiff, West Tripura, Agartala rejecting the prayer of the writ petitioner for temporary injunction and to transfer the Title Suit No. 32 of 1993 pending in the Court of Munsiff, West Tripura, Agartala to this Court.

(2.) The facts of the case in a very short compass are as follows : The writ petitioner (Plaintiff) joined his service in the State Bank of India as Clerk-typist in the year 1964 and he was promoted to Officer Grade-II Cadre in March, 1973. He also got promotion to Officer Grade-I Cadre in November, 1975. It is also the case of the writ petitioner that he was ordered to officiate as Middle Management Grade Scale-II, which is the next higher grade and scale of Junior Management Grade Scale-I and in which Grade & Scale some of the erstwhile Officers Grade-I were fitted on the effective date of implementation of the Pillai Committee Recommendations in the State Bank of India, i.e. on the 1st October, 1979 and thus, he was officiating in that grade and scale Continuously and permanently for about 9 years from August, 1984 to April, 1993. On 28th April, -1993, the 4th Respondent issued a letter dated 28.4.1993 as in Annexure-30 to the writ petition conveying the writ petitioner the decision of transfering him from Bank's Regional Office, Bijay Kumar Chowmohani, Krishnanagar, Agartala to Agartala Branch at Melannath and simultaneously informing him that he would be relieved of his duties at Regional Office as at the close of business on the 8th May, 1993 which was declared as "Public Holiday" on account of birth anniversary of Rabindranath Tagore. The writ petitioner contended that the said letter of 28th April, 1993 as in Annexure-30 speaks about the writ petitioner's transfer and posting in his aubstantive grade and scale withdrawing his last 9 years' continuous and permanent officiating in the next higher grade and scale to which the petitioner has acquired a legal right. The petitioner went on to state that the Annexure-30 letter/order of 28.4.1993 virtually amounts to reduction in rank of the petitioner. Being dissatisfied with the said letter/order of 28th April, 1993 the writ petitioner filed a Suit being Title Suit No. 32 of 1993 in the Court of the Munsiff West Tripura, Agartala along with connected Misc. application being Misc. Case No. 40 of 1993 on 7th May, 1993 for vantilating his grievances and for temporary injunction and / or perpetual injunction on the aforesaid contemplated action of the 4th Respondent. The petitioner further contended that on 10th May, 1993 he was neither allowed to resume his duties at Bank's Regional Office, Bijay Kumar Chowmohani, Agartala, nor he was served with the release order. The learned Munsiff also rejected the prayer of the present writ petitioner for temporary injunction. According to the writ petitioner, his non-release from Bank's Regional Office compelled him to proceed on leave. It is also contended by the writ petitioner that Office of the 4th respondent returned the registered letter cover No.5453 dated 10.6.1993 containing letter and leave application of the writ petitioner, and thus declined to receive any communication from him and thus he was compelled to enter into correspondence with the Bank's Agartala Branch where-at the petitioner was sought to be transferred/posted. It is also the case of the petitioner that the Bank unauthorisedly made the balance of privilage leave account of the petitioner "NIL", by transferring the balance of that account to the petitioner's sick leave account and thus the Bank withheld the salaries and allowances of the petitioner for the period from 1.10.1993 to 15.10.1993 and for the period from 31.10.93 to the date of filing of the writ petition i.e. 31.3.1994 for no reason. The Bank also winded up a disciplinary proceeding exparte without giving the petitioner the reasonable opportunity for his defence despite his request and inflicted upon him the major punishment of reduction of substantive pay by three stages without proving the charges as seen Annexure-41 & 42 to the writ petition. It is also averred that Bank has been obstructing the petitioner from receiving the surrender value of his Life Insurance Policy assigned to Bank against a loan and the Bank also returned two medical bills of the writ petitioner and further threatened him to join duties at Bank's Agartala Branch without receiving him from Bank's Regional Office (as seen in Annexures 52 & 53 of the writ petition). The writ petitioner claimed that by the action of the respondents as stated above, he has been compelled either to resume duties at Bank's Agartala Branch or to quite Bank's job, and, as such, succumbing to the pressure, he has opted for voluntary retirement from Bank's service under his letter dated 31.12.1993 as in Annexure-54 to the writ petition. The writ petitioner has been deprived of his future promotions since 1983 and he has been humilated, harassed by the Bank. The writ petitioner also contended that the order dated 28.4.1993 as in Annexure-30 reduced him in rank thereby infringing his right guaranted uner Article 311(2) of the Constitution and that the action of the Bank's authority is malafide, malicious intention and colourable exercise of powers. By filing an amendment petition on 31.7.95 the writ petitioner further averred that the so-called notice for voluntary retirement as in Annexure-54 was not at all voluntary, and that the Bank has doomed the career of the petitioner and has done a great injustice to him thereby humilating his service life, family life and social life and that no action has been taken up till today by the Bank hi respect of his letter dated 2.11.1993 as in Annexure-D to the writ petition. The petitioner went on to state that the Executive Committee of the Bank Central Board is the competent authority to permit the petitioner to retire voluntarily from the Bank's service. But in the instant case the required sanction for voluntary retirement has not been accorded to the writ petitioner. It is also submitted by the petitioner that the Bank could not produce the original acceptance letter and, in fact, the so-called letter of acceptance has been manipulated by the 4th respondent in connivance with others to frighten the petitioner that if he did not join the Agartala Branch by 31st March, 1994 his voluntary retirement would become effective. The impugned transfer order was punative and the said order was passed for causing reduction in rank of the writ petitioner before disposal of the related departmental proceedings and, such impugned transfer order has been followed by penalty from the authority concerned thereby causing double punishment to the petitioner which is violative of Article 20(2) of the Constitution.

(3.) The writ petition was resisted by the Respondents by filing counter affidavit and by contending inter alia, that the writ petition is not maintainable; and the same is absolutely barred by limitation, estopple, weiver and acquiscence ; and that the present daim of the writ petitioner made in this writ petition is same with that of the claim and prayer of the writ petitioner made in his Suit being Title Suit No. 32 of 1993 now, pending in the Court of Sadar Munsiff, Agartala. According to the respondents the petitioner was an Officer (Junior Management Grade Scale-I) of the State Bank of India and he had voluntarily retired from the service with effect from the closing of business on 31.03.94 and, as such, he is no more Officer of the Bank. As the petitioner was promoted to Officer Grade-II from Clerical cadre which was in vegue prior to introduction of the Pillai Committee recommendation, whereafter according to the terms and conditions of the Pillai Committee, the Grade II and I were abolished and a "Cadre Officer" in the Junior Management Grade (JMGS-I) was introduced and there is no question of deprivation of the last promotion of the petitioner to Officer Grade-I, Cadre. Allowing an employee to official in the higher grade is a temporary phenomenon and is at the Bank's option and no claim for promotion can be established as officiating does not confer any right to the petitioner to claim for the post Bank's authority had given ample opportunity to the petitioner to appear in the examination for the post of MMGS-II. But he fefused to appear in the examination as seen in the document marked as Annexure-A series to the affidavit-in-opposition. From the documents/letters, it is seen that the petitioner would take reversion as Clerk and retire from the Bank. The Branch Manager, Agartala had not refused to accept the petitioner joining report on 10.5.1993 and the Branch Manager, Agartala Branch requested the petitioner to join at Agartala Branch. The question of reduction in rank of the writ petitioner shall not arise at all. According to the Department Policy, incorporated in "Hand Book on Staff Matters" the officers who are due for promotion in the next higher grade but (a) Unconditionally refuse promotion in writing or (b) give conditional refusal; or (c) absent themselves from written examination and/or interview therefore without prior intimation; will be permanently debarred from promotion to higher grades of management and officiating chances. The writ petitioner had already challenged the order of transfer in the Court of Sadar Munsiff, Agartala and sought for injunction which was subsequently rejected by an order of the learned Munsiff dated 21.5.93 (as seen in Annexure-35 to the writ petition) and that the said Civil Suit being Title Suit No. 32 of 1993 is pending in the Court of Sadar Munsiff, Agartala. But the release order of the writ petitioner had not been challenged in Title Suit No. 32 of 1993 and, as such, the 4th Respondent rightly directed the petitioner to submit his leave application to the Agartala Branch where he was posted and, accordingly, the writ petitioner submitted all his leave applications to the Agartala Branch and drawn his salary and other allowances from Agartala Branch. Therefore, it is an admitted position that Agartala Branch did not refuse to allow the petitioner to report to Agartala Branch for duty. Thus, facts are established by the documents marked as Annexures D (Series), E and F to the counter affidavit of the respondents. The respondents further averred that the writ petitioner preferred an appeal before the learned District Judge, and, as such, the subject matter of the writ petition is pending in the Court of Sadar Munsiff, Agartala and the injunction matter i.e. the subject matter of Misc. case No. 40 of 1993 as in Annexure-37 to the Writ Petition is pending in the Court of the learned District Judge. The respondents already submitted their written statement in the connected Title Suit No. 32/93 (as seen in Annexure-G to the counter affidavit). Moreover, the prayer of the petitioner for voluntary retirement was duly accepted by the Competent authority and the petitioner had already been informed that at the close of business on 31.3.94 the competent authority permitted the writ petitioner to retire voluntarily from the Bank's service which the petitioner duly received and acknowledged on 29.3.94 (as seen in the document marked as Annexure-H to the counter affidavit). According to the respondents, the writ petitioner has no locus standi to agitate the grounds and other issues involved in the said pending cases in the Court of the learned Mnnsiff as well as the learned District Judge in this writ petition. It is an established fact that there was no leave due to the writ petitioner at the relevant time rather he bad overdrawn sick leave by 368 days which was advised to the writ petitioner (as seen in Annexure-40 to the writ petition). The disciplinary proceedings as against the writ petitioner were conducted according to the Banks's established norms and rules and punishments were inflicted after considering all aspects by the appropriate authority. The appeal of the writ petitioner against the inflictment of punishment was also rejected after assessing the pros and cons of his appeal in the matter (as seen in the document marked as Annexure-J to the counter affidavit) and that the petitioner did not challenge the verdict of punishment The Branch Manager, Agartala complied with the direction of his higher authority and after giving proper information to the writ petitioner, the Branch Manager deducted the salary as per verdict of the authority concerned. It is also the case of the respondent that now the writ petitioner is to pay towards his loan and other liabilities to the Bank amounting to Rs.3,00,410.74 + overdrawn salary and allowances for 161 days amounting to Rs.49,000/- (in total is Rs.3,49,410.74 p). The respondents also specifically submitted that according to the procedure of law, the writ petitioner had to join at Agartala Branch on the next working day and for that purpose no fresh release order was necessary and, as such, the petitioner had no legal right to challenge the order dated 28.4.1993 issued by the Regional Manager (Assistant General Manager). An Officer of the Bank like the petitioner is liable to be transferred in any place in India as per terms and conditions of the Service Rules (Supervising Staff). More-over, other departmental proceeding against the writ petitioner is still pending. But, as the petitioner already retired from the Bank, so it is matter of consideration of the competent authority whether the departmental proceeding will be continued or not.