# Anil Kishore Gupta v. S.B.I. & Ors

- **Citation:** (2023) 8 ILRA 905
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-16
- **Case number:** Writ-A No. 6758 of 2004
- **Bench:** Irshad Ali
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kishore-gupta-v-s-b-i-ors-50637
- **Pages:** 20

## Headnote

Law
-
Punishment
-
Promotional examination - Use of unfair
means
-
Departmental
enquiry
-
Punishment of 'Warning' was given by
making entry in the service book, which
was also confirmed by appellate authority
- Petitioner was also restrained from
getting benefit for grant of appointment
to the post of Senior Assistant w.e.f
906 INDIAN LAW REPORTS ALLAHABAD SERIES
01.04.2002 - Legality challenged - Held,
loss of seniority to a government servant
with consequent loss of promotional
prospects, higher pay and emoluments is a
matter of serious consequence to him -
Once, the punishment of 'warning' has
been awarded to him and a note in this
regard has been made in his service book,
there
is
no
occasion
to
deny
the
petitioner's claim for appointment on the
post of Senior Assistant w.e.f. 01.04.2002.
(Para 24, 25, and 26)
Writ petition allowed. (E-1)
List of Cases cited:

## Text

_Characters 0–39,753 of 65,448. This is a partial read: ask again with offset=39753 for what follows._

8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
905
have the requisite skill and speed of 25
words per minute in typewriting. The first
test, an appointee, with this shortcoming,
must take at the end of one year of his
appointment, and failing that, he must take
the second test in the following, year after
improving his skills. If he passes the skill
test in the second instance, there is no
further authority left with the KDA to ask
him to undergo a typing skill or proficiency
test a third time. After all, the second test
was held by the KDA and the petitioners
were found successful in the said test. It is
not even that the KDA having held the
second test it binds them with the result in
some manner of an estoppel. The crux of
the matter is that passing the typing skill
test in the second instance under Rule
5(1)(i) closes the chapter under the Statute
once and for all. There is no jurisdiction, as
already said, with the KDA to hold a third
test to verify or confirm the result of the
second. Even if they did hold it and found
the petitioners not upto the mark, it would
be of no consequence.

14. This position of the law, Mr. Paul
could not very seriously dispute. However,
he said that for poverty of skill in
typewriting, action could be taken against
the petitioners. The taking of action if
permissible under the service rules for
inefficiency of an employee is another
matter. It has nothing to do with his
appointment. The issue here is about the
validity of the compassionate appointment
given to the petitioners and with them
passing the typewriting proficiency test in
the second instance, their appointment
cannot be put in jeopardy. If that cannot be
done, there is no point about the KDA
holding a third test for ascertaining the
typewriting proficiency or the petitioners'
typing speed, who have already passed the
necessary test in accordance with Rules of
1974. Mr. Paul could not bring to this
Court's notice any authority taking a
contrary view on principle.

15. In this view of the matter, this
petition succeeds and is allowed. The
impugned order dated 28.03.2023 to the
extent it directs the holding of a typing skill
test for a third time is quashed. The
respondents are restrained by a mandamus
from holding a typing test in future for the
purpose of determining the validity of the
petitioners' appointment.

16. There shall be no order as to costs.
----------
(2023) 8 ILRA 905
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 16.08.2023

BEFORE

THE HON'BLE IRSHAD ALI, J.

Writ-A No. 6758 of 2004
connected with
Writ-A No. 6145 of 2002

Anil Kishore Gupta ...Petitioner
Versus
S.B.I. & Ors. ...Respondents

Counsel for the Petitioner:
K.K. Gautam, Amit Kr. Singh Bhadauriya, L.B.
Singh Bhadauraiya

Counsel for the Respondents:
N.K. Seth, Gopal Kumar Srivastava

A.
Service
Law
-
Punishment
-
Promotional examination - Use of unfair
means
-
Departmental
enquiry
-
Punishment of 'Warning' was given by
making entry in the service book, which
was also confirmed by appellate authority
- Petitioner was also restrained from
getting benefit for grant of appointment
to the post of Senior Assistant w.e.f
906 INDIAN LAW REPORTS ALLAHABAD SERIES
01.04.2002 - Legality challenged - Held,
loss of seniority to a government servant
with consequent loss of promotional
prospects, higher pay and emoluments is a
matter of serious consequence to him -
Once, the punishment of 'warning' has
been awarded to him and a note in this
regard has been made in his service book,
there
is
no
occasion
to
deny
the
petitioner's claim for appointment on the
post of Senior Assistant w.e.f. 01.04.2002.
(Para 24, 25, and 26)
Writ petition allowed. (E-1)
List of Cases cited:
1. Writ Petition No.3988 (S/S) of 1992; K.K.
Gautam Vs The St. Bank of India & anr. decided
on 24.11.1993
2. Service Single No. 331 of 2012; Ram Prakash
Bajpai Vs St. of U.P. Through Prin. Secy. Civil
Aviation Deptt. Lko. decided on 15.03.2021.
3. St. of U. P. & ors. Vs Saroj Kumar Sinha;
(2010) 2 SCC 772.
4. Roop Singh Negi Vs Punjab National Bank &
ors.; (2009) 2 SCC 570.
5. L.P.A. No.155/2013; Varun Bhardwaj Vs St.
Bank of India & ors. decided on 24.11.2015.
6. Civil Appeal No. 4455 of 2019; Rajbir
Surajbhan Singh Vs The Chairman, Institute of
Banking Personnel Selection, Mumbai decided
on 29.04.2019.
7. Civil Writ Petition No.7345 of 2022; Ravi
Kumar Kulhari Vs Rajasthan Rajya Vidyut
Prasaran Nigam Ltd. & anr. decided on
09.09.2022
8. Civil Appeal No. 263 of 2013; St. Bank of
India & ors.Vs Narendra Kumar Pandey decided
on 14.01.2013.
9. Tara Chand Vyas Vs Chairman & Disciplinary
Authority & ors.; (1997) 4 SCC 565
(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Sudeep Seth, learned
Senior Counsel assisted by Sri Amit Kumar
Singh Bhadauriya, learned counsel for the
petitioner and Sri Gopal Kumar Srivastava,
learned counsel for the respondent(s) -
Bank.

2. Since both the writ petitions arise
and give rise to a similar controversy, the
same are being decided by means of this
common judgment and order.

3. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
certiorari
quashing
the
impugned
disciplinary order dated 31.03.2004 along
with appellate order dated 05.08.2004 as
well as order dated 04.09.2004, whereby
the petitioner was appointed on the post of
Senior Assistant with a further prayer to
issue a writ, order or direction in the nature
of mandamus commanding the respondents
to give effect to order dated 01.08.2003
treating the petitioner to be appointed on
the post of Senior Assistant with all
consequential benefits w.e.f. 01.04.2002
along with 24% interest on delayed
payment.

3. Brief facts giving rise to the present
writ petition are as under:

Writ-A No.6145 of 2002:

Sr.
No.
Relevant Facts of the Case
a.
The petitioner completed his B.Com.
in IInd Division from Lucknow
University, Lucknow in the year 1981
and LL.B. in IInd Division with 64%
Marks from Lucknow University and
has passed Ist part Examination of
C.A.I.I.B. (Certificate of All India
Institute of Bankers).
b.
He was appointed on the post of Clerk
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
907
/ Typist by the respondent Bank on
17.07.1984 after having been qualified
in written test and interview. He
joined on the said post on 27.07.1984
at State Bank of India, Nanpara
Branch, District Bahraich.
c.
The petitioner was sent on deputation
to Inspection Department on Mobile
Duty and posted at Zonal Inspection
Office, Lucknow on 21.01.1988 and
was paid a sum of Rs.325/- per month,
as special allowance in addition to
other monthly salary.
d.
He remained on deputation between
the period 21.01.1988 to 19.08.1990.
e.
On 20.08.1990, the respondent - Bank
absorbed the petitioner as Clerk /
typist in Inspection Department and
the payment of deputation allowance
of Rs.325/- was stopped.
f.
On 12.12.1997, on petitioner's own
request, he was transferred and posted
at SBI's Circle Audit Department,
Local Head Office, Lucknow.
g.
On 14.08.1999, the petitioner was
relieved for joining on deputation to
SBI, Zonal Inspection Office, Jaipur,
Rajasthan to work as Inspection
Assistant on mobile duty with special
deputation allowance of Rs.750/- per
month.
h.
Under merit cum Seniority channel,
the
respondent
-
Bank
held
examination for promotion to Junior
Management Grade Scale - I Officer
(for short, "JMGS - I) to be effective
w.e.f.
01.08.1998,
wherein
the
petitioner participated and secured 52
marks out of 60 marks but was not
called for interview as he had no
seniority marks to his credit by that
time and was lower in merit by 4.5
marks.
i.
On 18.02.2001 and 25.02.2001, the
exam for JMGS-I was again held by
the respondent - Bank and the
petitioner again participated in the
same, however, he was not informed
about marks obtained and was not
called for interview.
j.
On 02.09.2001, the respondent - Bank
held exam for promotion as Trainee
Officers effective w.e.f. 01.08.2000,
wherein the petitioner appeared and
secured 38.67 marks out of 70 marks
but was not called for interview as
minimum cut of mark was 40.
k.
On 28.01.2002, the petitioner applied
for study leave and remained on leave
from 05.02.2002 to 08.03.2002.
l.
On 10.03.2002, the respondent - Bank
held
written
examination
for
promotion as Trainee Officer and the
petitioner participated in the same,
however, he was not informed about
result of the same.
m. On 19.06.2002 & 20.06.2002, the
respondent - Bank held interview for
the same, but the petitioner was not
called for.
n.
On 28.07.2002, the respondent - Bank
held examination for promotion to the
post of JMGS-I Officer effective
w.e.f. 01.08.2001 and 01.08.2002 and
the petitioner appeared in the same but
he was not called for interview.
o.
Vide letter dated 31.07.2002, the
petitioner asked the respondent - bank
to inform him the marks, which he
had obtained in the examination held
on 10.03.2002 for promotion as
Trainee Officer effective from 2001.
p.
Vide letter dated 12.08.2002, the
908 INDIAN LAW REPORTS ALLAHABAD SERIES
Inspection and Audit Department of
SBI, Jaipur, Rajasthan informed the
petitioner that in the exam held on
10.03.2002 for promotion to Trainee
Officer w.e.f. 01.08.2001, he had
secured 46.75 marks out of 70 marks.
q.
While acknowledging the above letter
vide registered letter dated 20.08.2002
/ 29.08.2002, the petitioner requested
the respondent to inform the reasons
for not calling him to appear in the
interview despite having secured
46.75 marks, whereas candidates
lesser than him in marks were called
for, however, he has not received any
reply since then.
r.
On 21.08.2002, the petitioner was
repatriated to Lucknow vide order
dated 26.07.2002 and was relieved
from his duties from Jaipur Rajasthan
and he reported for duties at SBI,
Local Head Officer, Lucknow on
24.08.2002.
s.
On 02.09.2002, the petitioner was
transferred to SBI, Zonal Officer,
Lucknow for further posting. As
petitioner was on leave on 3rd, 4th
and 5th September, 2020, the said
order was served upon him on
06.09.2002
and
he
immediately
reported for duties at SBI, Zonal
Office, Lucknow and since then he is
awaiting for further posting orders.
t.
Since
16.09.2002
till
date,
the
petitioner was on medical leave as he
was not well.
u.
Vide letter dated 13.09.2002, which
was received by the petitioner on
11.10.2002, the personnel section of
SBI, Zonal Office, Lucknow had
directed him to report to Assistant
General Manager, Region-II, SBI,
Zonal Office, Lucknow for further
posting.
v.
The
petitioner
being
ill,
vide
application
dated
12.10.2002
requested the AGM, SBI, Zonal
Office,
Lucknow
to
extend
his
medical leave, however, no reply has
been made to him and he was not
informed the reasons as to why
despite his having secured higher
marks, he was not called for in the
interview held on 19.06.2002 and
20.06.2002 for promotion as Trainee
Officer effective w.e.f. 01.08.2001,
whereas persons securing lesser marks
were called for and got promoted.

Writ-A No.6758 of 2004:

a. The petitioner was appointed as Clerk
cum Typist in the respondent Bank on
27.07.1984.
He
was
chosen
for
Inspection Department. He after having
completed requisite length of service
with approved track record, was
allowed for promotional test for
promotion to the post of JMGS-I w.e.f.
01.08.1998.
In
the
examination,
scoring 52 marks out of 60, he was not
called for interview.
b. The petitioner again appeared in the
promotional test for JMGS-I held on
18.02.2001 & 25.02.2001, however,
the marks obtained were not disclosed
to him.
c. The
petitioner
appeared
in
the
examination for the post of Trainee
Officer on 02.09.2001 and secured
38.67 marks out of 70.
d. He again appeared in the competitive
test for promotion to the post of
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
909
Trainee Officer w.e.f. 01.08.2001 but
was not called for interview followed
by admitting him to written test for
promotion to the post of Officer
JMGS-I effective from 01.08.2001 and
01.08.2002. The test was held on
28.07.2002 but the petitioner was not
called for interview.
e. Petitioner having not been called for
interview, requested the respondents to
show his marks in the exam held on
10.03.2002.
f.
Respondent No.2 vide letter dated
12.08.2002 informed the petitioner that
he has secured 46.75 marks out of 70,
however, he was not promoted.
g. When the persons securing lesser
marks than the petitioner were called
for interview, he filed Writ Petition
No.6145 (S/S) of 2002, which is
pending before this Court.
h. The petitioner was repatriated from
Inspection Department, Jaipur to Local
Head Office, Lucknow and then to
Region-II of Zonal Office, Lucknow
and then to village Branch, Patti in
District Pratapgarh.
i.
Vide
letter
dated
31.03.2003,
respondent No.4 issued a show cause
notice to the petitioner that as to why
disciplinary proceeding should not be
initiated
against
him
for
alleged
misconduct.
j.
The petitioner submitted reply to the
same on 12.04.2003 denying the
allegations levelled.
k. Vide letter dated 09.06.2003, the
petitioner was charge sheeted for
allegedly using unfair means in the
impugned examination and was desired
to submit reply within seven days.
l.
On 01.08.2003, the petitioner was
promoted in the cadre post of Senior
Assistant based on seniority cum
suitability w.e.f. 01.04.2002 i.e. date
subsequent to petitioner's participation
in the impugned examination.
m. In the news paper "The Pioneer" dated
24.11.2003, the IBPS, who conducted
the Trainee Officers written test, which
was held under control of Deputy
General Manager of respondent Bank,
a news item was published regarding
IBPS having been involved in leakage
of examination papers including CAT
and Probationary Officers of SBI.
n. On 03.12.2003, a visit was made by
respondent No.5 to Patti Branch to
hold
oral
inquiry,
wherein
the
petitioner stated that matter in dispute
is subjudiced before Hon'ble Court in
Writ Petition No.6145 (S/S) of 2002,
therefore, no useful purpose will be
served
by
holding
the
inquiry,
however, he was forced to sit and sing
the proceedings, however, in the
inquiry, no prosecution documents
were examined.
o. In pursuance to directives of presenting
officer vide brief dated 03.12.2003
stepping into role of respondent No.5,
the petitioner submitted his defense
brief.
p. In the meantime, pending inquiry, a
loan of Rs.2.00 Lacs was sanctioned to
the petitioner by respondents, however,
under the shadow of disciplinary
proceedings, the same is not entitled
for.
q. Vide
letter
dated
26.03.2004,
respondent No.4 forwarded a tentative
order passed to the petitioner. It is
alleged that the said order was passed
910 INDIAN LAW REPORTS ALLAHABAD SERIES
without
affording
opportunity
of
making submissions against the inquiry
officer's finding.
r.
On 30.03.2004, the petitioner requested
the respondent No.4 to review his
punishment order keeping in view the
circumstances that he himself had
concurred with award of 10/10 marks
in petitioner's appraisal and promoted
him to the post of Senior Assistant
w.e.f. 01.04.2002.
s. On
31.03.2004,
respondent
No.4
passed
final
order
warning
the
petitioner instead of censure entry
earlier proposed.
t.
Vide
letter
dated
10.05.2004
respondent No.4 stated that inquiry
report has already been provided to the
petitioner
and
vide
order
dated
14.05.2004, he confirmed the tentative
order stating that if the petitioner is
having any grievance, he may file an
appeal within 45 days.
u. On 27.05.2004, the petitioner filed
appeal stating that he has gathered
information that the invigilator upon
query has denied that any unfair means
have been used.
v. Vide letter dated 02.08.2004, the
petitioner
requested
the
Branch
Manager, Patti to relieve him for
Korwa Branch.
w. Vide
order
dated
05.08.2004,
respondent
No.3
rejected
the
petitioner's appeal taking same view as
of respondent No.4.
x. On 04.09.2004, a fresh order was
issued by respondent No.4 directing the
petitioner's posting to Lalganj.
y. Vide letter dated 23.09.2004, Branch
Manager, Patti relieved the petitioner
for
Diwaganj
Branch
instead
of
Lalganj Branch and after five days, he
was again relieved for Kumbhi Aima
Branch to assist the inspection.
z. On 11.10.2004, the petitioner was
relieved from Kumbhi Aima Branch to
Lalganj Branch.
aa. The entire action of respondents being
alleged
to
be
malafide,
falase,
prejudicial, illegal, biased, vindictive,
unequal
and
beyond
jurisdiction
denying the promotion to the petitioner
to the post of Trainee Officer, the
present
writ
petitions
have been
preferred before this Court.

4. Submission of learned Senior
Counsel for the petitioner is that the
petitioner has never used unfair means in
promotional examination to the post of
Trainee Officer and he has scored higher
marks than Sri. A.K. Barkley, who had
himself admitted having used unfair means
in the said examination.

5. He further submitted that the
impugned charge sheet is nothing but an after
thought with ulterior motive to somehow
justify the deprivation of promotion to the
petitioner. The respondents have never taken
the plea of using unfair means by the
petitioner prior to filing of Writ Petition
No.6145 (S/S) of 2002 claiming promotion to
the post of Trainee Officer. He submitted that
the respondents even did not comeforth with
the allegation of use of unfair means while
communicating the marks secured by the
petitioner. Even after query made by the
petitioner in this regard, the respondents did
not spell out any reason.

6. He next submitted that the
impugned order has been passed on the
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
911
basis of surmises and conjectures and in
absence of any constructive evidence to
substantiate the allegations. He submitted
that on the one hand no evidence has been
lead by the respondents during course of
inquiry and on the other hand, the
respondent -IBPS itself failed to support its
contention lead by evidence.

7. He further submitted that the
appellate authority erred in stating that the
inquiry officer had duly considered the
petitioner's brief, however, the same is
against inquiry officer's own statement,
whereby he has stated that he had not
receive the defense brief of the petitioner.

8. He submitted that the petitioner
having been promoted to the post of Senior
Assistant w.e.f. 01.04.2002 vide order
dated 01.08.2003 is entitled to get salary
and other benefits and denial of the same is
illegal, malafide and prejudicial.

9. He lastly submitted that subsequent
order of promotion to the post of Senior
Assistant dated 04.09.2004 is redundant in
nature and beyond jurisdiction and is liable
to be quashed by this Court. In support of
his submissions, he placed reliance upon
following judgments:

a) K.K. Gautam Vs. The State Bank
of India and another; Writ Petition
No.3988 (S/S) of 1992 decided on
24.11.1993.

b) Ram Prakash Bajpai Vs. State of
U.P. Through Prin. Secy. Civil Aviation
Deptt. Lko.; Service Single No.331 of
2012 decided on 15.03.2021.

c) State of Uttar Pradesh and others
Vs. Saroj Kumar Sinha; (2010) 2 SCC 772.

d) Roop Singh Negi Vs. Punjab
National Bank and others; (2009) 2 SCC
570.

10. On the other hand, learned
counsel for respondent(s) - Bank submitted
that the petitioner while posted as Assistant
(Accounts / Typist) in Zonal Inspection and
Audit Department of respondent - Bank at
Jaipur
Zone
appeared
in
written
examination held on 10th March, 2002 for
appointment on the post of Trainee Officer,
2001. As per report dated 17.05.2002,
submitted by IBPS (Institute of Banking
Personnel Selection), he used unfair means
in the objective part of written test.
Therefore, the respondent - bank decided
for initiation of disciplinary proceeding
against him and for the said reason, he was
not considered for interview held on
29.06.2002 and 20.06.2002.

11. The petitioner went on leave w.e.f.
16.09.2002 to 28.10.2002 on the ground of
sickness and in the mean time he filed Writ
Petition No.6145 (S/S) of 2002 before this
Court, which is pending consideration. He
had filed another Writ Petition No.801 (S/S)
of 2003, which was dismissed vide order
dated 05.02.2003 and against the said order
he filed Special Appeal No.80 of 2003, which
has also been dismissed by Division Bench of
this Court vide order dated 28.02.2003.

12. He submitted that in terms of bank's
policy
under
the
scheme
of
Career
Progression, the petitioner was promoted to
the post of Senior Assistant w.e.f. 01.08.2004
and was transferred to Lalganj Branch,
District
Pratapgarh
vide
letter
dated
04.09.2004. However, as per bank's norms,
name
of
petitioner,
who
was
under
disciplinary proceedings, could not be
considered and therefore, he could not be
appointed
as
Senior
Assistant
w.e.f.
01.04.2002.

13. He next submitted that for using
unfair means in the examination, a charge
912 INDIAN LAW REPORTS ALLAHABAD SERIES
sheet was served upon the petitioner on
09.06.2003 for which ample opportunity of
hearing was provided to the petitioner and
the inquiry authority submitted his finding
on 12.12.2003. He submitted that having
considered the entire material placed before
the disciplinary authority, the tentative
order
dated
26.03.2004
was
passed
awarding punishment of censure to the
petitioner providing one more opportunity
to place his submissions against the
proposed punishment within three days,
reply to which was submitted by the
petitioner on 30.03.2004 stating that the
order is discriminatory in nature as Sri A.K.
Barkley was also charge sheeted along with
the petitioner for copying from each other,
was only warned but the petitioner has been
awarded censure entry. The petitioner also
submitted that the respondent - bank has
appreciated his work and he has been
granted promotion in cadre on the post of
Senior Assistant with retrospective effect,
whereupon the disciplinary authority has
observed as under:

"(i) Under the rules governing the
services of the EPA, if the charge of
resorting to unfair practices of any nature
whatsoever in any examination is accepted
by the charged employee, it is considered a
"MINOR MISCONDUCT", whereas if the
employee does not accept the charge and
the same is subsequently proved against
him,
it
constituted
"GROSS
MISCONDUCT". The MISCONDUCT of
both the employees was considered and
punishment awarded to them accordingly.
Although there is no discrimination or bias
as alleged but as both the punishments
"WARNED" or "CENSURED" are defined
in the same clause 6(h) of the settlement,
the Disciplinary Authority considered the
punishment of warning for the sake of
uniformity as claimed by the EPA.

(ii) Report received by the IBPS was
considered by the bank under the rules
framed in this regard. The report published
in the newspaper against IBPS in no way
affects its credibility in the instant case.
Thus, over-ruled the objectives.

(iii) The performance and other
achievements of the employees are not
relevant while deciding the gravity of the
MISCONDUCT
nor
it
reduces
his
culpability in the instant case. Rather his in
cadre promotion from retrospective dates
speaks against his allegation of bias on the
part of the management, therefore, find no
merit / subsistence in his objections."

14. He submitted that the disciplinary
authority after considering the entire
material placed before him modified the
tentative order to the extent that the
petitioner be warned to be more careful in
this regard with a note to this effect in his
service record. Against the said order, the
petitioner filed an appeal before the
appellate authority, which was rejected
confirming the condign punishment order.
He submitted that as per Award Staff
Debarment
Policy,
when
disciplinary
proceedings are in progress, following
procedure may be followed:

(i)
An
employee,
against
whom
disciplinary action is contemplated for an
offence
amounting
to
fraud,
misappropriation of money, forgery or any
other act which prima facie amounts to
criminal misconduct, shall be debarred
from promotion for a period not exceeding
3 years reckoned from the date such
contemplation if advised to the employee in
writing (ref. Circular Staff No.125 of 1978
dated 26.6.78).

(ii) In all other cases of disciplinary
action, the bar will operate as from the
date the employee is served with a charge-
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
913
sheet (ref. Circular Staff No.125 of 1978
dated 26.6.78).

(iii) Normally, the 3-year period of
debar should commence from the date of
charge sheet. However, in some cases,
issuance of charge sheet is sometimes not
possible owing to the Bank desiring to
investigate a matter fully before a charge
sheet is framed. It is quite possible that an
employee, whose alleged misconduct is
being investigated, may become eligible for
promotion in the meantime. Under such
circumstances, it may become necessary to
advise the employee that disciplinary
action is contemplated against him. He may
not, therefore, be considered eligible for
promotion. It should, of course, be ensured
in the interest of the Bank as well as that of
the employee, that the investigation is
expeditiously completed and charge sheet
issued as early as possible (ref. Circular
Staff No.125 of 1978 dated 26.6.78).

(iv) Where the employee has been
charge sheeted or the disciplinary action is
contemplated against him for a minor
misconduct,
he
may
be
permitted
provisionally to appear in the test,
interview etc. for promotion to higher
cadre
subject
to
his
being
eligible
otherwise, but the result of such an
employee should be withheld until such
time as the case is decided (ref. Circular
Staff No.125 of 1979), where after, such
cases would be considered in the following
manner:-

(a) If the employee is completely
exonerated
on
the
conclusion
of
disciplinary proceedings and it is found
that he was successful in the test /
interview, he would be promoted with
retrospective
effect
alongwith
other
employees. (Ref. Circular Staff No.107 of
1980 dated 2.7.80).

(b) In terms of debarment policy,
warning / censure is not treated as a bar to
eligibility
for
promotion.
There
is,
therefore, a case for considering those
employees for promotion, who are warned /
censured on the conclusion of disciplinary
proceeding and who are found suitable for
promotion, with effect from a future date.
The fact of the disciplinary proceedings
contemplated
/
pending
against
an
employee and of the warning / censure, if
the punishment has been awarded before
the interview, is known to the interview
Committee and if despite this the employee
is found suitable for promotion, it would be
appropriate not to cancel his result and
consider him for promotion from a future
date. The punishment to such an employee
would thus be the loss of seniority vis-a-vis
others, who appeared at the same test and
got promoted earlier. Accordingly, such
employees may be promoted with the batch
promoted subsequent to the award of
punishment without having to appear again
in the promotion test. (Ref. Circular Staff
No.107 of 1980 dated 2.7.80).

(c)
In
the
case
of
any
other
punishment, the result of the promotion test
should be cancelled. The employee in all
such cases would have to appear afresh in
the test after the debarment period is over.
However, their appearance in the test, the
result of which is no declared, would not be
counted as a change availed (Ref. Circular
Staff No.107 of 1980 dated 2.7.80).

(d) In all the cases, where employees
are provisionally permitted to appear in the
test etc., they should be advised clearly in
the initial stage itself that their promotion,
in the event of their being successful in test,
interview etc., would depend on the
outcome of the disciplinary proceedings
pending against them and that their
appearance in the test etc. is only
provisional. (ref. Circular Staff No.125 of
1979 dated 3.10.79)."
914 INDIAN LAW REPORTS ALLAHABAD SERIES

15. He further submitted that the
petitioner is habitual of filing successive
writ petitions and the grounds taken in the
present writ petition has already been taken
in the earlier writ petitions, which is not
tenable in view of Rule 7 Chapter 22 of
Allahabad High Court Rules, 1925.

16. He lastly submitted that the
punishment order impugned in the writ
petition is just and valid and does not call
for any interference from this Hon'ble
Court and the writ petitions are liable to be
dismissed. In support of his submissions,
he
placed
reliance
upon
following
judgments:

a) Varun Bhardwaj Vs. State Bank
of India and ors.; L.P.A. No.155/2013
decided on 24.11.2015.

b) Rajbir Surajbhan Singh Vs. The
Chairman,
Institute
of
Banking
Personnel
Selection,
Mumbai;
Civil
Appeal No.4455 of 2019 decided on
29.04.2019.

c) Ravi Kumar Kulhari vs.
Rajasthan
Rajya
Vidyut
Prasaran
Nigam Ltd. and another and connected
writ petitions; S.B. Civil Writ Petition
No.7345 of 2022 decided on 09.09.2022.

d) State Bank of India and Ors. Vs.
Narendra Kumar Pandey; Civil Appeal
No.263 of 2013 decided on 14.01.2013.

e) Tara Chand Vyas Vs. Chairman
& Disciplinary Authority and Ors.;
(1997) 4 SCC 565, para 3.

17. I have considered the submissions
advanced by learned counsel for the parties
and perused the material on record as well
as law reports cited by learned counsel for
the parties.

18. To resolve the controversy
involved in the matter, relevant portion of
the judgments relied upon by learned
counsel for the parties are being quoted
below:

 Judgments relied upon by learned
Senior Counsel for the petitioner:

a) K.K. Gautam (Supra):

"25. In service jurisprudence next
below rule is the guiding principle in the
matter of promotion. When ever an
employee is passed over by his juniors due
to some administrative error or pendency
of disciplinary proceedings, his seniority
has to be restored back vis-a-vis his juniors
as soon as the error is detected or such an
employee is exonerated of the charges.
Hon'ble Supreme Court of India had the
occasion to reiterate this principle again in
the matter of Arun Kumar Chatterjee v.
South Eastern Railway and others reported
in 1985 (2( SCC 451 and while dealing
with somewhat similar situation of denial
of correct seniority held as follows:

"We find no justification for the
attitude
adopted
by
the
Railway
Administration in depriving the appellant
of his legitimate rights. Loss of seniority of
a government servant with consequent loss
of promotional prospects, higher pay and
emoluments
is
a
matter
of
serious
consequence to him. When the appellant by
his representations drew the attention of
the departmental authorities to the injustice
done to him, it was their duty to have
rectified the mistake and re-fixed the
seniority of the appellant."

26. After hearing both the parties at
great length, petitioner in person and
opposite parties represented through a
senior counsel and perusing the record. we
are of the confirmed view that the opposite
parties failed to consider the representation
of the petitioner in the light of the
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
915
recommendations made by their own senior
officers to give the petitioner promotion
with effect from 1975 with open mind and
in accordance with the practice and policy
of the bank itself as well as the settled
position of law. Thus, there has been a
clear violation of equality clause contained
in Articles 14 and 16 of the Constitution of
India. We hodl that after exoneration from
the alleged charges, bank ought to have
restored the status-quo ante regarding
promotion of the petitioner to the post of
J.M.G.S.-I (redesignated). It is indeed
regrettable that the subordinate official has
been treated by his superiors in such a
callous manner. We have no doubt
whatsoever that the petitioner has been a
victim of most unfair and arbitrary action
and had been made to suffer for no fault of
his for all these years. His agony,
therefore, must come to and end without
any further delay.
27. In these circumstances, this writ
petition succeeds and deserves to be
allowed. A writ of mandamus is hereby
issued directing the opposite parties to
treat the petitioner as having duly passed
the written test held on 26-10-1975 and
treat him appointed on the redesignated
post of J.M.G.S.-I with effect from 1975
from the date any of his junior was so
promoted
/
appointed
with
all
the
consequential benefits including further
promotions to all the next higher posts.
Opposite parties are further directed to
implement this order forthwith and in any
event not later than one month from the
date a certified copy of this judgment and
order is produced before them."

b) Ram Prakash Bajpai (Supra):

10. So far as the second submission of
the petitioner is concerned, a perusal of the
record of departmental proceedings shows
that no witness appeared in the departmental
enquiry or proved any document against the
petitioner. The law in this regard is well
settled.

11. (A) This Court in Subhas Chandra
Sharma vs. Managing Director and another
4, said:-

"In our opinion after the petitioner
replied to the charge-sheet a date should
have been fixed for the enquiry and the
petitioner should have been intimated the
date, time and place of the enquiry and on
that date the oral and documentary evidence
against the petitioner should have been led in
his presence and he should have been given
an
opportunity
to
cross-examine
the
witnesses against him and also he should
have been given an opportunity to produce
his own witnesses and evidence. If the
petitioner in response to this intimation had
failed to appear for the enquiry then an ex
parte enquiry should have been held but the
petitioner's service should have not been
terminated without holding an enquiry. In the
present case it appears that no regular
enquiry was held at all. All that was done that
after receipt of the petitioner's reply to the
charge-sheet he was given a show-cause
notice and thereafter the dismissal order was
passed. In our opinion this was not the
correct legal procedure and there was
violation of the rules of natural justice. Since
no date for enquiry was fixed nor any enquiry
held in which evidence was led in our opinion
the impugned order is clearly violative of
natural justice."

(B) The above judgment was followed
by another Division Bench in Subhas
Chandra Sharma vs. U.P. Co-operative
Spinning Mills and others5 where Court
held:

"In cases where a major punishment
proposed to be imposed an oral enquiry is
916 INDIAN LAW REPORTS ALLAHABAD SERIES
a must, whether the employee request, for it
or not. For this it is necessary to issue a
notice
to
the
employee
concerned
intimating him date, time and place of the
enquiry as held by the Division Bench of
this Court in Subhash Chandra Sharma v.
Managing Director, (2000) 1 UPLBEC
541, against which SLP has been dismissed
by the Supreme Court on 16-8-2000."
(emphasis added)

(C) In State of Uttar Pradesh vs. Saroj
Kumar Sinha6, the Supreme Court said:

"An inquiry officer acting in a quasijudicial authority is in the position of an
independent
adjudicator.
He
is
not
supposed to be a representative of the
department/
disciplinary
authority/
Government. His function is to examine the
evidence presented by the Department,
even in the absence of the delinquent
official to see as to whether the unrebutted
evidence is sufficient to hold that the
charges are proved. In the present case the
aforesaid procedure has not been observed.
Since no oral evidence has been examined
the documents have not been proved, and
could
not
have
been
taken
into
consideration to conclude that the charges
have been proved against the respondents.

When a departmental enquiry is
conducted against the government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The inquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal from service."

12. From the above facts, it is found
that the enquiry held against the petitioner
is not held as per the procedure established
by law. Thus the punishment order passed
against the petitioner on the basis of such
an defective and illegal enquiry cannot
stand.

13. Given the aforesaid, the writ
petition is allowed. Both the order of
dismissal dated 04.08.1995 as well as the
order dated 30.12.2011 rejecting the
representation of the petitioner are set
aside. Petitioner would be entitled to all
benefits of service as are granted to other
two delinquent employees i.e. Sri V.K.
Saxena, Junior Aircraft Mechanic and Sri
Harish Chandra @ Munna, Cleaner."

c) State of Uttar Pradesh and others
(Supra):

"27. A bare perusal of the aforesaid
sub-Rule shows that when the respondent
had failed to submit the explanation to the
charge sheet it was incumbent upon the
inquiry officer to fix a date for his
appearance in the inquiry. It is only in a
case when the Government servant despite
notice of the date fixed failed to appear that
the enquiry officer can proceed with the
inquiry
ex
parte.
Even
in
such
circumstances it is incumbent on the
enquiry officer to record the statement of
witnesses mentioned in the charge sheet.
Since the Government servant is absent, he
would clearly lose the benefit of cross
examination
of
the
witnesses.
But
nonetheless in order to establish the
charges the department is required to
produce the necessary evidence before the
enquiry officer. This is so as to avoid the
charge that the enquiry officer has acted as
a prosecutor as well as a judge.

28. An inquiry officer acting in a quasi
judicial authority is in the position of an
8 All. Anil Kishore Gupta Vs. S.B.I. & Ors.
917
independent
adjudicator.
He
is
not
supposed to be a representative of the
department/disciplinary
authority/Government. His function is to
examine the evidence presented by the
department, even in the absence of the
delinquent official to see as to whether the
unrebutted evidence is sufficient to hold
that the charges are proved. In the present
case the aforesaid procedure has not been
observed. Since no oral evidence has been
examined the documents have not been
proved, and could not have been taken into
consideration to conclude that the charges
have been proved against the respondents.

30. When a department enquiry is
conducted against the Government servant
it cannot be treated as a casual exercise.
The enquiry proceedings also cannot be
conducted with a closed mind. The enquiry
officer has to be wholly unbiased. The rules
of natural justice are required to be
observed to ensure not only that justice is
done but is manifestly seen to be done. The
object of rules of natural justice is to
ensure that a government servant is treated
fairly in proceedings which may culminate
in imposition of punishment including
dismissal/removal from service."

d) Roop Singh Negi (Supra):

14.
Indisputably,
a
departmental
proceeding is a quasi judicial proceeding.
The Enquiry Officer performs a quasi
judicial function. The charges leveled
against the delinquent officer must be
found to have been proved.