IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 08TH DAY OF MARCH, 2019 BEFORE THE HON’BLE MR.L. NARAYANA SWAMY ACTING CHIEF JUSTICE WRIT PETITION NO.50585/2012 (S-PRO) C/W WRIT PETITION NO.24577/2013 (S-RES) WRIT PETITION NO.519/2013 (S-RES) IN W.P.NO.50585/2012 BETWEEN:
SRI.T.R.RAGHUKUMAR AGED ABOUT 57 YEARS S/O LATE T S RAMAKRISHNAN WORKING AS SENIOR MANAGER UNION BANK OF INDIA KASTURBA ROAD BANGLAORE – 560 001 ... PETITIONER (BY SRI.S B MUKKANNAPPA, ADV.) AND:
1. THE CHAIRMAN & MANAGING DIRECTOR UNION BANK OF INDIA UNION BANK BHAVAN NO.230, VIDHAN BHAVAN MARG. NARIMAN POINT, MUMBAI - 400 021 2. THE GENERAL MANAGER(P) UNION BANK OF INDIA CENTRAL OFFICE UNION BANK BHAVAN NO.230, VIDHAN BHAVAN MARG NARIMAN POINT MUMBAI-400 021 ... RESPONDENTS (BY SRI. J.PRADEEP KUMAR, ADV. FOR R1 & R2) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA DIRECT THE RESPONDENTS TO CONSIDER THE CASE OF THE PETITIONER FOR FURTHER PROMOTION FROM MMGS-III TO SMGS-IV BY PLACING HIM IN THE BOTTOM OF THE MERIT LIST OF PROMOTION TO SMGS-IV VIDE STAFF CIRCULAR DATED 2.8.12 AT ANNX-E W.E.F 1.8.12 TO THE WP AND TO EXTEND ALL OTHER CONSEQUENTIAL BENEFITS.
IN WRIT PETITION NO.24577/2013 BETWEEN:
SRI.T.R.RAGHUKUMAR S/O LATE T S RAMAKRISHNAN AGED ABOUT 57 YEARS WORKING AS SENIOR MANAGER UNION BANK OF INDIA KASTURBA ROAD BANGALORE – 560 001 ... PETITIONER (BY SRI.S B MUKKANNAPPA, ADV.) AND:
1. THE CHAIRMAN & MANAGING DIRECTOR UNION BANK OF INDIA UNION BANK BHAVAN NO.230, VIDHANA BHAVAN MARG NARIMAN POINT MUMBAI – 400 021 2. THE GENERAL MANAGER(P) UNION BANK OF INDIA CENTRAL OFFICE UNION BANK BHAVAN NO.230, VIDHANA BHAVAN MARG NARIMAN POINT MUMBAI – 400 021 3. THE CHIEF MANAGER(P & HR) UNION BANK INDIA HRM DEPARTMENT NODAL REGIONAL OFFICE BANGALORE – 560 001 4. THE DY. GENERAL MANAGER (HRM) NODAL REGIONAL OFFICE UNION BANK OF INDIA BANGALORE – 560 001 ... RESPONDENTS (BY SRI.J.PRADEEP KUMAR, ADV. R1 TO R4) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO QUASH THE IMPUGNED ANNUAL PERFORMANCE APPRAISAL REPORT DT.14.3.2013 AT ANNX-M TO THE WRIT PETITION AND AS WELL AS THE COMMUNICATION LETTER AS WELL THE MEMORANDUM DT.9.5.2013 ISSUED BY THE R-3 AT ANNX-P TO THE W.P. DIRECT THE RESPONDENTS TO AWARD SUITABLE REMARKS TO THE PETITIONER FOR THE YEAR 2012 AS THERE WAS NO LAPSES ON THE PART OF THE PETITIONER AND EXTEND ALL OTHER CONSEQUENTIAL BENEFITS LIKE ANNUAL INCREMENTS ETC. TO THE PETITIONER.
IN WRIT PETITION NO.519/2013 BETWEEN:
SRI.T.R.RAGHUKUMAR AGED ABOUT 57 YEARS, S/O LATE T.S.RAMAKRISHNAN, WORKING AS SENIOR MANAGER, UNION BANK OF INDIA, KASTURBA ROAD, BANGALORE – 560 001 ... PETITIONER (BY SRI.S B MUKKANNAPPA, ADV.) AND:
1. THE CHAIRMAN & MANAGING DIRECTOR UNION BANK OF INDIA, UNION BANK BHAVAN, NO.230, VIDHANA BHAVAN MARG, NARIMAN POINT, MUMBAI – 400 021 2. THE GENERAL MANAGER (P) UNION BANK OF INDIA, CENTRAL OFFICE, UNION BANK BHAVAN, NO.230, VIDHANA BHAVAN MARG, NARIMAN POINT, MUMBAI – 400 021 3. THE CHIEF MANAGER (HR) REGIONAL OFFICE, UNION BANK OF INDIA, NO.10, CHANDRAKIRAN BUILDING, KASTURBA ROAD, BANGALORE – 560 001 ... RESPONDENTS (BY SRI.J.PRADEEP KUMAR, ADV. FOR R1 TO R3) THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT THE RESPONDENT TO PAY THE SALARY AND OTHER ALLOWANCES AND OTHER CONSEQUENTIAL BENEFITS TO THE PETITIONER FROM 16.6.2010 TO 7.11.2011 TOGETHER WITH INTEREST AT 12% FORTHWITH. DIRECT THE RESPONDENTS TO APPROVE THE PENSION OF THE PETITIONER AS REQUESTED BY THE PETITIONER IN HIS WRITTEN REPRESENTATION DATED 28.2.2012 VIDE ANNEXURE-H IN TERMS OF THE CIRCULAR DATED 27.08.2010 VIDE ANNEXURE-J.
THESE PETITIONS COMING ON FOR PRONOUNCEMENT OF ORDER THIS DAY AFTER HAVING HEARD AND RESERVED FOR ORDER ON 29.10.2018, THE COURT MADE THE FOLLOWING:
O R D E R W P No.50585/2012 is filed seeking direction to the respondents to consider him for promotion as he cannot be denied promotion just on the ground of disability. W P No.24577/2013 is filed seeking to quash appraisal report and consequential communication and for a direction to award suitable remarks on the ground suitable work is not allotted and W P No.519/2013 is filed seeking direction to the respondents to pay salary and other allowances and other consequential benefits to the petitioner from 16.06.2010 to 7.11.2011 together with interest at 12% and to approve the pension as requested by him in his written representation dated 28.02.2012 as per Annexure-H in terms of Circular dated 27.8.2010 as per Annexure-J to the petition.
2. The case of the petitioner in all the three petitions which is more or less the same is that petitioner joined the respondent bank on 10.7.1978 as an Agricultural Field Officer and subsequently promoted to the post of MMGS-III on 01.01.1998, which is in the cadre of Senior Manager. When he was so working, a disciplinary proceedings was initiated on certain misconduct and after holding an enquiry, the 2nd respondent passed an order of penalty dated 31.08.2006 compulsorily retiring the petitioner from service. The appeal filed by the petitioner before the appellate authority came to be rejected vide order dated 12.07.2007. The petitioner being aggrieved, filed W P No.20484/2007 which was partly allowed by the order dated 20.05.2010. The punishment imposed on the petitioner was modified by withholding three annual increments with cumulative effect and directed the respondent Bank to reinstate him for any suitable post having regard to his visual disability, holding him entitled for continuity of service and all consequential benefits but no back wages.
3. The Bank filed W A No.2617/2010 challenging the above order passed in the writ petition and petitioner also filed W A No.2631/2010 challenging denial of back wages. By the order dated 25.08.2011 both the appeals came to be dismissed.
4. The petitioner was ordered to be reinstated into service by the order dated 26.11.2011 during pendency of CCC(c) No.2076/2011, and in pursuance petitioner reported for duty on 08.12.2011.
5. The respondent’s bank has published seniority list of officers in MMGS-III as of 01.12.2002 under Circular dated 06.12.2002 placing the petitioner at Sl.No.288. Petitioner submits that several officers who were promoted along with petitioner from MMGS-II to MMGS-III have been promoted to cadre of SMGS-IV on 21.06.2010. It is stated since the petitioner was out of service, question of considering his case for further promotion did not arise. It is case of the petitioner that after his reinstatement, respondents ought to have considered his case for promotion from MMGS-III to SMGS-IV by doing notional fixation.
6. It is stated, vide seniority list Annexure-H serial No.457 to 539 were promoted from MMGS-III to SMGS-IV on 21.06.2010 and thereafter several juniors to the petitioner from Sl.No.540 to 661 were promoted. In the month of June, 2012, the respondent bank conducted promotional process. In spite of receipt of his earlier letter, he was denied the promotion process held on 21.06.2010. The petitioner gave one more representation dated 22.09.2012 to the first respondent with a request to consider his case for promotion.
7. The respondents had published a revised promotional policy for officers on 11.08.2012. Chapter VI of the revised promotional policy deals with procedure with reference to the disciplinary criminal proceedings against the officers. Under clause 6.1(a) officers in respect of whom the punishment has been inflicted will not be eligible to participate in promotional process for a period of one year from the date of infliction of the said penalty. The punishment order of compulsory retirement, which is modified to withholding of three annual increments by the order dated 20.5.2010, got completed one year on 19.05.2011, from which date the respondents were bound to consider the case of the petitioner for further promotion.
8. The petitioner had submitted his reply as against the APAR dated 30.03.2013 and without considering the representation, petitioner was informed “The Committee to handle appraises’ representation has been conveyed that since no remarks have been given by 2012 by the appraising of Reviewing Authority, the Committee is not in a position to moderate the remarks”.
9. In W P No.519/2012 the petitioner is claiming full salary and other allowances and all other consequential benefits from 06.06.2010 to 07.11.2011 and as well as directions to approve pension as per his written representations, on the ground that there is delay in implementing the order of this court to reinstate the petitioner.
10. Statement of objections is filed by the respondents in W P No.50585/2012. It is stated that petitioner was reinstated on 26.11.2011 as per the directions of this Court and posted to Audit Department, ZAO, Bangalore and was supposed to discharge the duties attached to the post of Senior Manager. But he was reluctant to work and took shield of his disability. The duties of Senior Manager in audit department could be performed by him after acquiring certain skills for visually disabled persons like learning Braille, etc. But he refused to do the same and refused to co-operate with the Management. Taking a considerate view, the Management asked him to do only correspondence work, which also he denied to discharge. Left with no alternative, his posting is treated as supernumerary post as Senior Manager. It is stated, the order of this Court only grants reinstatement in a suitable post with continuity of service and consequential benefits. The petitioner cannot claim promotion to SMGS IV since promotion to SGMS IV is based on merit. The petitioner did not satisfy the eligibility criteria for promotion since his performance appraisal was bleak. An officer to be eligible to SMGS IV needs to have 3 years of satisfactory service in MMGS-III, should have 75% marks in APAR for each year of service, should pass an examination for computer literacy and computer knowledge and thereafter eligible officers would be called to participate in GD and personal interview. The petitioner did not qualify the eligibility criteria for promotion. The management has taken a sympathetic view and has treated his post as a supernumerary post in terms of the persons with disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995, hereinafter referred to as `the Act’ for short. There is no automatic right of promotion, in derogation of the rules and regulations applicable to the organization, attached to a supernumerary post. The respondent placed reliance on the case in Union of India vs., Devendra Kumar Pant (AIR 2010 SC 1253), to emphasize that promotion can be denied to a person not fit to perform duties of a higher assignment and the same would not fall within the purview of discrimination.
11. In W P No.24577/2013 relating to annual performance appraisal report, it is denied that no work was assigned or allotted to the petitioner. The duties of a Senior Manager posted at ZAO include conducting audits and submitting audit reports, detecting leakages of income cases and ensuring recovery, performing role of a people manager by setting performance goals for direct reports and monitoring their performance, providing developmental guidance and direction as and when required etc., These duties can be substantially discharged by visually impaired/differently able employees after acquiring certain skills/training. The petitioner was offered to acquire these skills but he refused to co-operate with the respondents. Still, taking a considerate view, the respondents tried to assign him only follow up work in the Audit Department but he did not even discharge those duties at all, taking shield of his disability. As a result of his non co-operation, no work could be carried out through him. In view of his reluctance to work, the respondents were left with no alternative but to treat his post as supernumerary post, as envisaged under Section 47 of the Act. Annexure-P is based on Annexure-N including the self appraisal, which cannot be faulted. It does not affect his seniority in any manner. However, he will not be entitled to promotion, and the consequent financial loss is due to the fact that the petitioner willfully did not carry out his duties properly. Hence the petitioner is not entitled to better remarks.
12. In W P No.519/2013 the respondent has contended in the statement of objections that not accepting the order passed in the writ petition, both the petitioner and respondent preferred respective writ appeals. Therefore, the petitioner cannot claim benefits from the order passed in W P No.20484/2007. After disposal of writ appeals on 25.8.2011, CCC No.2076/2011 was filed by the petitioner and during pendency of the same, petitioner was reinstated by the order dated 26.11.2011. With regard to pension, it is stated, petitioner’s date of resumption of service in the Bank is reckoned with effect from 16.06.2010 for the purpose of continuity of service and the consequential benefits. The Bank is agreeable to extend pension option to the petitioner under staff circular 5690 dated 27.8.2010 upon his fulfilling conditions laid down under the said staff circular. The Bank also agreed to treat the period between the date of his compulsory retirement till his reporting to duties as extraordinary leave on loss of pay as requested by the petitioner. The Bank had restored all the leave and treated the said period as extraordinary leave on loss of pay. Out of PF credit of Rs.11,66,926.08, the respondent bank adjusted Rs.7,61,800.00 towards the two housing loans availed by the petitioner. The petitioner had withdrawn Rs.4,05,126.08 on 04.08.2007 from S B Account by cheque No.40301. Reopening of housing loan of the petitioner and pension option to be considered are interlinked by the petitioner himself in the representation. It is stated, petitioner has to contribute @ 2.8 times of revised pay for 2007 that is, Rs.93,240/- + 900 (stag. Increment) + Rs.900 (FPP) and repay Rs.4,05,126.08 with interest at 8.5% in order to ascertain PF & VPF payable to the petitioner upon reopening of housing loan and pension option being given. Till date, petitioner has failed to comply these conditions. Unless he complies these conditions, Bank cannot process the same. Since the petitioner was not entitled to back wages, the bank passed order at Annexure-C treating the period from the date of compulsory retirement till reinstatement as extraordinary leave without pay and allowance. Thus the respondent bank has prayed for dismissal of the writ petition pertaining thereto also.
13. I have heard the learned counsel for the petitioner and the learned counsel for the respondent Bank and perused the writ petition papers.
14. The learned counsel for petitioner submitted that juniors of the petitioner are given promotion and petitioner is denied promotion which is in contravention of Section 47 of the Act. After completion of one year from the date of modification of the punishment order from compulsory retirement to that of withholding three annual increments with cumulative effect as on 19.05.2011, his case for promotion ought to have been considered for notional pay fixation, seniority and promotion. The learned counsel for the petitioner relied upon decision rendered by the Hon’ble Supreme Court in the case of Bhagwan Dass & another vs., Punjab State Electricity Board reported in 2008(1) SCC 579 and relied upon the following paragraph:
“19. We understand that the concerned officers were acting in what they believed to be the best interests of the Board, the old mind set it would appear to them just not right that the Board should spend good money on someone who longer of any use. But they were quite wrong, seen from any angle. From the narrow point of view the officers we bound to follow the law and it was not open to them to allow their bias to defeat the lawful rights of the disabled. From the larger point of view the officers failed to realize that the disabled too are equal citizens of the country and much share in its resources as any other citizen. The denial of their rights would not only be unjust and unfair to their families but would create larger and graver problems for the society at large. What the law permits to them is or largess but their right as equal citizens of the country”.
15. So far as second writ petition relating to appraisal report, it is submitted that though the petitioner was reinstated into service, he has not been allotted any work by the respondents despite his repeated request. When there is serious lapse on the part of the respondent in implementing the order passed by this Court, the respondent is not justified in awarding zero marks to the petitioner in his Annual Appraisal Report as on 31.12.2012. A detailed report was filed by the petitioner on 30.3.2013 as per Annexure-N. The respondent was legally bound to consider the reply submitted by the petitioner and should have awarded suitable marks to the petitioner. Therefore, the communication letter at Annexure-P issued by the third respondent cannot be sustainable in the eye of law.
16. The learned counsel for the petitioner submits relating to payment of salary and other allowances and other consequential benefits to the petitioner from 16.6.2010 to 7.11.2011 that respondent Bank ought to have reinstated the petitioner into service not later than 16.6.2010 and whereas he was reinstated only on 26.11.2011. Thus there was a delay of about 17 months in implementing the order of this Court. Placing reliance on decision of the Supreme Court in a case of APSRTC vs. B Vikram Reddy, reported in 2003 volume 11 SCC 570, petitioner is entitled to full salary and other allowance for the delay period. Partly implementing the order of this Court is not sustainable. The respondent bank has admitted when a representation was filed as per Annexure-H to extend the pension option to the petitioner under staff circular No.5690 dated 27.8.2010. Thus the respondent ought to have approved the pension of the petitioner.
17. On the other hand, the learned counsel for the Bank submitted that appraisal report of the petitioner was bleak, he did not perform the duty entrusted to him and Section 47 of the Act provides that promotion to disabled person cannot be denied on the sole basis that he was disabled if he is found to be otherwise, suitable. The promotional post SMGS IV required three years satisfactory service in MMGS-III and should have 75% marks in APAR for each year of service, should pass an examination of computer literacy and computer knowledge and thereafter eligible officers are called to participate in GD and personal interview. The petitioner did not qualify the eligibility criteria and therefore he was not considered for promotion. The learned counsel placed reliance on the decision in the case of Union of India vs., Devendra Kumar Pant (AIR 2010 SC 1253). So far as salary for the period from date of the order directing reinstatement till actual reinstatement, it is submitted that the order of the learned Single Judge was subject matter of Writ Appeal both by the petitioner as well as by the respondent and after disposal of the writ appeals, the order is complied reinstating the petitioner and therefore the petitioner is not entitled to claim salary from date of the order of learned Single Judge. Further the petitioner is not entitled to better remarks having not discharged the work entrusted to him and having not cooperated with the respondent to have training in the field to discharge the work entrusted to him.
18. It is relevant to extract provision of Section 47 of the Act in order to appreciate the contention of the parties, which is as follows:
“47. Non-discrimination in Government employments.-(1) No establishment shall dispense with, or reduce in rank, an employee who acquires a disability during his service:
Provided that, if an employee, after acquiring disability is not suitable for the post he was holding, could be shifted to some other post with the same pay scale and service benefits:
Provided further that if it is not possible to adjust the employee against any post, he may be kept on a supernumerary post until a suitable post is available or he attains the age of superannuation, whichever is earlier.
(2) No promotion shall be denied to a person merely on the ground of his disability:
Provided that the appropriate Government may, having regard to the type of work carried on in any establishment, by notification and subject to such conditions, if any, as may be specified in such notification, exempt any establishment from the provisions of this section.”
19. This term `merely on the ground of his disability’ is interpreted by the Hon’ble Supreme Court in the case of Devendra Kumar Pant’s case, referred to supra and para-19 of the judgment reads as under:
“19. Therefore, we are of the view that the section 47(2) only provides that a person who is otherwise eligible for promotion shall not be denied promotion merely on the ground that he suffers from disability.
The use of the words `merely on the ground’ shows that the section does not provide that if the disability comes in the way of performing the higher duties and functions associated with the promotional post, promotion shall not be denied to a person on the ground of disability only if the disability does not affect his capacity to discharge the higher functions of a promotional post.”
20. Therefore, I am of the view that petitioner is not entitled to right of promotion as he is not otherwise eligible to the promotional post, which required three years satisfactory service in MMGS-III and should have 75% marks in APAR for each year of service, should pass an examination of computer literacy and computer knowledge. Admittedly, the petitioner has not discharged work in the post of MMGS-III and therefore he is not entitled to better appraisal remarks. Though it is the complaint of the petitioner that he was not entrusted any work, no material is placed on record to show that he made such a grievance before the respondent Bank and the respondent failed to consider the same. Merely stating that no work was entrusted to the petitioner is not sufficient to presume that work was not entrusted to the petitioner. On the other hand, it is the case of the respondent that petitioner did not cooperate with the Management and he did not even discharge the work entrusted to him taking shield on his disability and therefore a supernumerary post was created and petitioner was accommodated. Therefore, the petitioner has not made out a case in the first two writ petitions relating to denial of promotion and seeking direction to better appraisal report.
21. So far as the salary and other allowances from 16.06.2010 to 7.11.2011, i.e., from the date of order of the learned Single Judge to the date of reinstatement order, it is not the case of the respondent that there was stay order in the writ appeal filed by the respondent assailing the order passed by the learned Single Judge. When there is no stay order, there was no impediment for the respondent to comply the order directing respondent to reinstate the petitioner. There was a delay of almost 17 months in implementing the order. Even if it is assumed that there is some time required to get the order copy and consider the case of petitioner for reinstatement say a month’s time and more than that there was no reason for the respondent to wait till 7.11.2011. In the circumstances, I am of the view that the respondent is liable to pay salary and allowance to the petitioner for the period from 16.07.2010 to 07.11.2011 with interest at 6% per annum after making notional fixation on the basis of continuity of service.
22. The petitioner also claimed to approve the pension of the petitioner as per his written representation dated 28.2.2012 in terms of the circular dated 27.8.2010. To this the respondent has stated that petitioner has to comply the terms of the Circular dated 27.8.2010 and it is not the case of the petitioner that he has complied the same and even then the respondent has not considered his representation. In that view of the matter, it is for the petitioner to comply the requirement and seek for consideration of his representation to approve the pension, in which event the respondent would consider the representation as is undertaken by them in the statement of objections.
23. In that view of the matter, W P Nos.50585/2012 & 24577/2013 are liable to be dismissed and they are accordingly dismissed. W P No.519/2013 is disposed of. The respondents are directed to pay salary and other allowance admissible to the petitioner from *16.06.2010 to 07.11.2011 with interest at 6% per annum as aforesaid within a period of four weeks from the date of receipt of copy of the order.
akd * Corrected vide court Order dated 25.04.2019 Sd/-
ACTING CHIEF JUSTICE