Pralay Saran Chakraborty vs State Bank of India and Others

A.K. Patnaik, J.—This is an appeal against the judgment dated September 10, 1996 of the learned single Judge of this Court dismissing Civil Rule No. 170/94 filed by the appellant.

The facts briefly are that the appellant was an officer in the rank of Junior Management Grade Scale-I in the State Bank of India. In the year 1989, he was allowed to officiate in the higher post of Middle Management Grade Scale-II at its Regional Office at Agartala. By Memorandum dated April 28, 1993, the appellant was transferred from the said Regional Office at Agartala and reverted and posted as Officer in the rank of Junior Management Grade Scale-I at the Agartala Branch of the State Bank of India. Aggrieved by the said transfer and reversion, the appellant filed Title Suit No. 32/93 in the Court of the learned Munsiff, West Tripura, Agartala, on May 7, 1993 challenging the said order dated April 28, 1993. Along with the said Title Suit, the appellant also filed an application for temporary injunction numbered Misc. Case 40/93. But the said prayer for temporary injunction was rejected by the learned Munsiff by his order dated May 21, 1993. Against the said order rejecting the prayer for temporary injunction, the appellant filed an appeal before the learned District Judge, West Tripura, Agartala, but the said appeal was also dismissed. The appellant then filed writ petition numbered as Civil Rule No. 170/94 before this Court praying for, inter alia, a direction on the respondents to allow the appellant to resume his duties at the Regional Office of the State Bank of India as Middle Management Grade Scale-II (for short "MMGS-II") and to treat him as on duty in the said post at the Regional Office of the State Bank of India with effect from May 8, 1993 and to pay him his salary and allowances for the months of October, November and December 1993, and January, February and March, 1994. In the said writ petition, a prayer was also made for a writ of Certiorari quashing the order of the learned Munsiff, West Tripura, Agartala, rejecting the prayer of the appellant for temporary injunction, and for transfer of the said Title Suit No. 32/93 pending in the Court of learned Munsiff, West Tripura, Agartala, to this Court. During the pendency of the aforesaid writ petition, the appellant filed on April 31, 1995 a petition for amendment of the writ petition challenging the letter dated March 29, 1994 of the Assistant General Manager, State Bank of India, Regional Office at Agartala, permitting the appellant to retire voluntarily from Bank''s service at the close of business on March 31, 1994. The respondents contended, inter alia, in their counter-affidavit that since the appellant had issued a notice dated December 31, 1993 to the Appropriate Authority expressing his intention to go on voluntary retirement on and from March 31, 1994 and the said notice had been accepted. The appellant stood voluntarily retired from the Bank''s service with effect from January 31, 1994 and that after his voluntary retirement the writ petition filed by the writ petitioner/appellant was not maintainable. By the impugned judgment dated September 10, 1996, the learned single Judge held that the notice of the appellant for voluntary retirement had been accepted by the competent authority and that the appellant did not approach the Court with clean hands and, accordingly, dismissed the writ petition awarding cost of Rs. 5000/- to the respondents.

At the hearing of this appeal, Sri Pralay Saran Chakraborty, the appellant appearing in person, contended that although initially the appellant issued a notice dated December 31, 1993 to various authorities of the Bank for voluntary retirement with effect from March 31, 1994, subsequently he also issued notice dated April 4, 1994 and April 28, 1994 for deferring the date of such retirement and thereafter issued another notice dated June 27, 1994 revoking his earlier notice for voluntary retirement dated December 31, 1993. He argued that under the fourth proviso to Rule 19 (1) of the State Bank of India Officers'' Service Rules framed by the Central Board of State Bank of India under Sub-section (1) of Section 43 of the State Bank of India Act, 1955, it was only the "competent authority" who could permit an officer who had completed 20 years of service or 20 years of pensionable service to retire from the Bank''s service. But in the instant case, the impugned letter dated March 29, 1994 of the Assistant General Manager issued to the appellant would show that it was not the competent authority but it was the appropriate authority who had permitted the appellant to retire voluntarily from the Bank''s service as at the close of business on March 31, 1994.

In reply, Mr. A.M. Lodh, learned counsel for the respondents, in his written argument contended that the notice of voluntary retirement dated December 31, 1993 of the appellant would show that the said notice was issued by the appellant voluntarily and the said notice was accepted by the authorities by letter dated March 29, 1994 which was communicated to the appellant and received by the appellant also on March 29, 1994. As per the said notice of the appellant for voluntary retirement with effect from March 31, 1994, as accepted by the authorities, by letter dated March 29, 1994. The appellant''s voluntary retirement took effect from March 31, 1994 and it was only thereafter that the appellant submitted the letters dated April 4, 1994 and April 28, 1994 requesting the Bank authorities to defer his voluntary retirement and subsequently the letter dated June 27, 1994 revoking his decision to retire voluntarily with effect from March 31, 1994. In the said written argument, it was further contended by Mr. Lodh that the competent authority for sanctioning retirement of officers of the grade to which the appellant belongs was the Deputy Managing Director (Personnel) and accordingly the appellant''s notice for voluntary retirement was accepted by the Chief General Manager, Local Head Office, Guwahati and the Deputy Managing Director (Personnel), Central Office, and this was communicated by the Assistant General of Tripura Region of the State Bank of India.

The relevant proviso to Rule 19 (1) of the State Bank of India Officers Service Rules under which voluntary retirement of the appellant appears to have been permitted by the respondents is quoted herein below:

"19.(1)... ... ... ... ... Provided further that an officer who has completed 20 years'' service or 20 years'' pensionable service, as the case may be, may be permitted by the competent authority to retire from Bank''s service, subject to his giving three months'' notice in writing or pay in lieu thereof unless this requirement is wholly or partly waived by it."

The aforesaid proviso clearly shows that when an officer of the State Bank of India who has completed 20 years service or 20 years'' pensionable service can retire from Bank''s service only if he is permitted by the competent authority. Interpreting a similar provision for voluntary retirement contained in the bye-laws of Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Limited, the Supreme Court in the case of Himachal Pradesh Horticultural Produce Marketing and Processing Corporation Ltd. Vs. Suman Behari Sharma, to which a reference has been made in the impugned Judgment of the learned single Judge, has held that the bye-law confers a right on the employee of the said Corporation to request for voluntary retirement on completion of 25 years'' service or on attaining the age of 50 years, but his desire would materialise only if he is permitted to retire and not otherwise. Applying the aforesaid law to the present case, although the above-quoted proviso to Rule 19 (1) of the State Bank of India Officers Service Rules confers a right on an officer who had completed 20 years of service or 20 years of pensionable service to retire from the Bank''s service, as and when such an officer indicates his intention to retire voluntarily from the Bank''s service, such retirement, in our considered opinion, would take effect only when the officer is permitted by the competent authority to do so.

The question therefore is as to whether the appellant was permitted by the competent authority to retire from Bank''s service with effect from March 31, 1994 pursuant to his notice dated December 31, 1993 for voluntary retirement. According to the case of the respondents, the competent authority to grant such permission for voluntary retirement of the appellant was the Deputy Managing Director (Personnel), Central Office. In the impugned letter dated March 29, 1994, the Assistant General Manager, Tripura Region, Agartala has stated that it has been decided by the appropriate authority to permit the appellant to retire voluntarily from the Bank''s service as at the close of business on March 31, 1994. To find out who was the appropriate authority who had permitted the appellant to retire voluntarily from the Bank''s service as at the close of business on March 31, 1994 as stated in the impugned letter dated March 29, 1994 of the Assistant General Manager, Tripura Region, Agartala, this Court called for the original of the orders of the concerned authority permitting the appellant to retire from service with effect from March 31, 1994 and the respondents have filed before this Court a note dated June 25, 1994 of the Deputy General Manager (Personnel-Admn), Central Office, submitted to the Deputy Managing Director (Personnel). The first paragraph of the said note dated June 25, 1994 of the Deputy General Manager (Personnel-Admn.) is to the following effect:

"........We have to advise that Sri P. Chakraborty, JMGS-I of our Guwahati Local Head Office had submitted his application dated December 31, 1992 (Flag-A) for voluntary retirement from Bank''s service to Guwahati Local Head Office and sent a direct copy to us. We had sent his representation to Guwahati Local Head Office for their comments. Our Local Head Office advised that they have permitted him to retire from Bank''s service as at the close of business on March 31, 1994 (Flag-B)."

The facts stated in the aforesaid note of the Deputy General Manager (Personnel-Admn.) would show that it was the Guwahati Local Head Office which had permitted the appellant to retire from Bank''s service as at the close of business on March 31, 1994 and not the Deputy Managing Director (Personnel) who was the competent authority for permitting such retirement. In the said note, however, a proposal was made by the Deputy General Manager (Personnel-Admn.) that the competent authority may grant post facto approval to the Local Head Office''s action in permitting the appellant to retire from Bank''s service as at the close of business on March 31, 1994, but no orders of the Deputy Managing Director (Personnel) have been produced before us showing that the appellant was permitted to retire from the bank''s service at the close of the business on March 31, 1994. The finding of the learned single Judge in the impugned judgment dated September 10, 1996 that the appellant''s notice for voluntary retirement with effect from March 31, 1994 was accepted by the competent authority of the Bank is therefore liable to be set aside.

It was next contended by Sri Pralay Saran Chakraborry, the appellant, that the order dated April 28, 1993 transferring and posting him as Junior Management Grade Scale-I (for short "JMGS-I") permanently and relieving him from his duties as MMGS-II officer in the Regional Office at Agartala as at the close of business on May 8, 1993 amounted to reduction in rank and that such an order could be passed by the authorities only after following the procedure for disciplinary proceedings for imposition of major penalties as contained in the State Bank of India Officers Service Rules. The appellant submitted that no such procedure was followed and no show-cause or opportunity was given to the appellant before he was reverted from the higher post of MMGS-II to the post of JMGS-I. The appellant therefore prayed that the impugned order dated April 28, 1993 should be quashed by this Court and the appellant be allowed to resume his duties in the higher post of MMGS-II at the Regional Office of State Bank of India at Agartala, his salary and allowances with effect from May 8, 1993 in the said post be paid to him.

Mr. A.M. Lodh, learned counsel for the respondents, on the other hand, has contended in his written argument that the appellant had been promoted only on officiating basis to the post of MMGS-II and that he was required to appear in interview for regular promotion to the said post of MMGS-II and that the appellant was informed by letter dated September 23, 1991 to appear before the interview Board but the appellant refused to appear before the said interview Board and in the circumstance the respondents had no other option but to revert him to his substantive post of JMGS-I. He also relied on the Debarment Policy of the State Bank of India under which officers absenting themselves from interview for promotion to the next higher grade are liable to be permanently debarred from promotion to higher grades of Management and officiating charges.

Admittedly, the appellant was only officiating in the post of MMGS-II at the Regional Office of the State Bank of India at Agartala. Therefore, he did not have any right to hold higher post of MMGS-II in which he was officiating. Reversion of the appellant from the officiating post of MMGS-II to his substantive post of JMGS-I without any punitive element or penal consequences does not amount to reduction in rank requiring the authorities to follow the procedure to be followed in the case of penalties (see Parshotam Lal Dhingra Vs. Union of India (UOI), ; State of U.P. and Others Vs. Sughar Singh, and Nyadar Singh Vs. Union of India (UOI) and Others, This position in service law has also been incorporated in Explanations to Rule 67 of the State Bank of India Officers Service Rules. The fifth explanation in the said Explanations is to the following effect:

"Explanation:

..... (v) reversion to a lower grade or post of an officer officiating in a higher grade or post, on the ground that he is considered, after trial, to be unsuitable for such higher grade or post, or on administrative grounds unconnected with his conduct....."

The aforesaid explanation clearly states that reversion to a lower grade or post of an officer officiating in a higher grade or post on the ground that he is not suitable for such higher grade or post or on an administrative ground unconnected with his conduct will not amount to a penalty within the meaning of Rule 67 of the State Bank of India Officers'' Service Rules. Where therefore the appellant did not appear in the interview for promotion to the higher grade or post in which he was officiating, his reversion to the lower grade or post, namely, JMGS-I, was not on account of his misconduct and such reversion did not amount to major penalty of reduction to a lower grade or post as mentioned in Rule 67 of the aforesaid Rules.

While, however, reversion of an officer from the higher post in which he was officiating and to which he had no right has no penal consequences, permanent debarment of such officer reverted to his lower substantive post or rank from promotion in future to higher post or grade has serious penal consequences and cannot be resorted to by the respondents without complying with the basic requirement of principles of natural justice. In our opinion, therefore, while there is no illegality in the impugned order dated April 28, 1993 of the respondents transferring and posting the appellant as JMGS-I at the Agartala Branch of the State Bank of India, the respondents cannot debar the appellant permanently from consideration for promotion to the higher post without complying with the principles of natural justice.

Before we part, we would like to state that since the appellant had filed Title Suit No. 32/93 in the Court of learned Munsiff, West Tripura, Agartala challenging the impugned order dated April 28, 1993 transferring and posting the appellant as JMGS-I permanently in the Agartala Branch of State Bank of India, we would not have normally decided the dispute between the parties relating to the said order dated April 28, 1993 in this writ petition. But considering the fact that both the appellant and the respondents had made their submissions on the merit of the challenge to the said order dated April 28, 1993, and this litigation between the parties relating to order dated April 28, 1993 has been pending for almost 5 years now, we have dealt with the said submissions with a view to set at rest the controversy between the parties.

In the result, we dispose of this appeal by directing that the Deputy Managing Director (Personnel), Central Office, State Bank of India will take a decision on the voluntary retirement of the appellant and his promotion and his salary and allowances keeping in mind the observations made in this judgment as well as the notice dated June 27, 1994 of the appellant revoking his notice to retire voluntarily from service. The said decisions will be taken by the said competent authority within two months from today and the amounts paid to the appellant pursuant to interim orders passed by this Court will be adjusted against the salary or terminal benefits of the appellant, as the case may be.

The writ appeal is allowed to the extent indicated above. However, considering the facts and circumstances of the case, the parties shall bear their own costs.