JUDGMENT Pradeep Kant and K.S. Rakhra, JJ.
1. These are the two writ petitions, which are being decided by this common order. Writ Petition No. 8834 (SB) of 1989 has been filed by the petitioner claiming promotion on the post of Middle Management Grade Scale (hereinafter referred to as M.M.G.S.) IIIrd and IVth and salary for the period during which he remained under suspension whereas Writ Petition No. 5087 (SB) of 1992 has been filed challenging the order of compulsory retirement dated 30.5.1992.
2. The undisputed facts of the case are that the petitioner, an employee of State Bank of India was considered for promotion for M.M.G.S. III, while working as M.M.G.S. II, on 28.12.1983 with effect from 1.8.1981 and he was found fit for promotion with effect from 1.8.1981. However, before the promotion orders could be issued, the petitioner was placed under suspension, vide order dated 25.2.1984. The petitioner was served with a charge-sheet dated 21.4.1987 on 15.5.1987, Reply to the charge- sheet was submitted on 8.7.1987. The enquiry thus remained pending and during the pendency of the enquiry, the suspension order was revoked, vide order dated 9.12.1988. It was thereafter that Writ Petition No. 8834 (SB) of 1989 was filed when the petitioner's request for giving him promotion on the post of M.M.G.S. III and payment of full salary was not conceded by the Bank. In this writ petition, earlier an interim order was passed allowing the Bank to continue with the enquiry proceedings but not to take any final decision in the matter. This interim order was lately vacated on his own application of the petitioner and liberty was given to the Bank for passing final orders. As a consequence of the aforesaid enquiry, a decision was taken and the petitioner was ordered to be compulsorily retired. This order became the subject-matter of the subsequent writ petition. In this writ petition also in interim order was passed staying the order of compulsory retirement, which allowed the petitioner to continue in service and we are informed that the petitioner reached the age of superannuation during the subsistence of the aforesaid interim order and has thus retired on 30.6.1997. Sri P. N. Mathur, learned senior advocate, also informs that the petitioner has been paid all his post rettral dues and salary keeping in mind the interim order of stay passed by this Court.
3. Learned counsel for the petitioner Sri Anupam Mehrotra for making out a case for petitioner's promotion on the basis of the recommendation made by the D.P.C. as far back as on 28.12.1983, submitted that withholding of promotion merely on the basis of the suspension order dated 25.2.1984 was palpably erroneous, as there was no material against him on the date when the petitioner was to be granted promotion nor any enquiry was pending nor was in contemplation. In support of his submission, he relies upon the fact that the suspension order was itself revoked by the bank on 9.12.1988, which shows that suspension order was void and non est. Further submission is that under the State Bank of India Service Regulations, suspension order could only be revoked, if it is found unjustifiable and, therefore, there is presumption that they found the suspension of the petitioner unjustifiable which would entail the petitioner of consequence of promotion, as he was erroneously suspended without there being any material. The order dated 9,12.1988 revoking the suspension order does not disclose any reason but the learned counsel for the respondents submits that since the enquiry was taking long time and, therefore, the order of suspension was revoked but the enquiry was continued. The petitioner was suspended for charges relating to the period 1978-79 upto 1981.
4. The promotion to an incumbent can be withheld in case there is an existing material on which disciplinary proceedings are to be held or can be held or a decision to hold the disciplinary proceedings has been taken though no charge-sheet has been issued at that time, namely, when such a person is being considered for promotion or the charge-sheet has already been issued and the enquiry has thus, been set in motion. There may be cases where on the date of consideration of promotion even decision to initiate the enquiry has not been taken nor the charge-sheet has been issued but before the actual promotion orders are Issued, certain relevant adverse material comes to the knowledge of the appointing authority or the material adverse for holding disciplinary proceedings is detected ; in such circumstances, the appointing authority would be justified in withholding the promotion and in not issuing the actual order of promotion.
5. The suspension order dated 25.2.1984, clearly recites that the petitioner is being suspended because certain acts of gross misconduct during his incumbency as Branch Manager of Sandila (Hardoi) Branch, having come to light and. therefore, pending further investigations, it was not considered expedient to allow him to continue in active service. The D.P.C. had met in December, 1983 and before the order of promotion could be issued the aforesaid facts came to the fore and in the knowledge of the appointing authority. The plea that since the suspension order was revoked by the bank itself goes to show that his suspension was unjustified and, therefore, he is entitled for promotion has to be seen in the light of the circumstances of the each case. The order of revocation of suspension clearly speaks that on review being made, the suspension order was revoked without prejudice to the continuance of the enquiry. A delinquent officer cannot be allowed to remain under suspension for an unduly long period if the enquiry takes undue time. Of course, it will depend upon the facts and circumstances of each case. Admittedly, for the purpose as to whether the suspension order be revoked or continued, a periodical review is required by the appointing authority. In the instant case, the bank reviewed the order of suspension, as the petitioner was suspended on 25.2.1984 but the enquiry could not be completed till the date of revocation of the suspension, i.e., for a period of more than four years. If, in these circumstances, the order of suspension was reviewed and revoked without prejudice to the right of the bank to continue with the enquiry, it cannot be said that the suspension order was void ab tnitio and that it was erroneously or Illegally passed. It is settled principle of law that in a matter of suspension during enquiry or in contemplation of enquiry, periodical review of the suspension order should be made so that the delay in holding the disciplinary proceedings and its conclusion should not adversely affect the delinquent nor it should be resorted to, as a measure of punishment even though the charge may not be proved, later on.
6. For the reasons stated above, we find that merely because the suspension order has been revoked by the bank after four years on review being made, that would not make the action of the bank in withholding the promotion of the petitioner bad.
7. So far as the denial on the part of the bank in not making payment apart from the subsistence allowance, we do not find any illegality in the aforesaid order, as it was the discretion of the bank, on the facts and circumstances of the case to consider and pass order in this regard. If the bank, after being satisfied that the petitioner would not be entitled to any other monetary benefits for the period during which he remained under suspension, passed an order denying any other monetary benefit during the period of suspension, no exception can be taken.
8. So far as Writ Petition No. 5087 (SB) of 1992 relating to the challenge of the order of compulsory retirement is concerned, learned counsel for the petitioner has stated that the petitioner has already crossed the age of superannuation and, as per statement made by the learned counsel for the bank, he has been given the entire monetary benefits, as were admissible to him, the petition loses significance. We have however, looked into the merits of the case and we find that since the petitioner has been subjected to disciplinary proceedings in which the order of compulsory retirement has been passed by way of punishment, unless some infirmity, illegality or irregularity is shown either in the disciplinary proceedings or in the matter of award of punishment, the High Court would not interfere in such matters. No procedural irregularity or any other Irregularity or illegality has been pointed out either in holding the enquiry or in the award of punishment of compulsory retirement, a punishment which could have been awarded under the Rules In the service of the bank. We, therefore, do not find any reason to interfere with the order of compulsory retirement. However, in view of the fact that the petitioner has been allowed to continue in the service of the bank till he crossed the age of superannuation, the monetary benefits paid or accrued till the date of reaching the age of superannuation would not be curtailed nor the petitioner would be asked to refund any amount in this regard.
9. Both the writ petitions are devoid of merit and are hereby dismissed.