ORIENTAL BANK OF COMMERCE & ORS.versusS.S. SHEOKAND & ANR.

                     [2014] 3 S.C.R. 341


        ORIENTAL BANK OF COMMERCE & ORS.                           A
                                 v.
                  S.S. SHEOKAND & ANR.
               (Civil Appeal No. 3081 of 2006)

                    FEBRUARY 26, 2014
                                                                   B
     [H.L. GOKHALE AND J. CHELAMESWAR, JJ.]
                           ..
                           .,

      SERVICE LAW: Punishment - Respondent senior
manager in appellant bank - Allegation of purchasing third
party cheques and drafts of huge amounts beyond his                C
authority of lending - Inquiry report - Correspondence of
appellant bank with Central Vigilance Commission (CVC) -
Respondent's request for furnishing of papers exchanged with
the CVC declined - Imposition of punishment of reduction of
two stages in pay scale on advise of CVC - Request of              o
Vigilance Officer of the bank to the CVC that the penalty
imposed deserved to be modified to a minor penalty - Not
accepted - Writ petition by respondent seeking quashing of
order of punishment and direction to consider him for further
promotion - Allowed by High Court - On appeal, held:               E
Undoubtedly, there were serious allegations against the
respondent, and such acts could not be condoned - At the
same time, the Bank itself had taken the view in the initial
stage that the action did not require a major penalty - High
Court was also informed at the stage of review that the Bank       F
was considering imposition of a minor penalty - As the advise
from eve was sought, it could not be said that this additional
material was not part of their decision making process - When
this report was not made available to the respondent, it is
difficult to rule out the apprehension about the decision having   G
been taken under pressure - Any material, which goes into
the decision making process against an employee, cannot be
denied to him - Therefore part of judgment interfering with the
punishment is sustained - As regards issue of promotion, the
                                341                                H
    342     SUPREME COURT REPORTS              [2014] 3 S.C.R.


A   respondent had previous adverse entry in his record -
    Inasmuch as the record of respondent was not satisfactory,
    there was no occasion for High Court to give any such
    direction on the footing that the respondent was denf9d the
    consideration only because he had suffered a punishment -
B   The direction to consider him for promotion, and give him
    benefits on that footing set aside - Natural justice.

       The respondent at the relevant time was working as
  the Senior Manager in the appellant-bank. The charges
  against the respondent were that he had purchased third
C party cheques/drafts of huge amounts beyond the
  discretionary powers of lending without completing the
  pre-sancti.on formalities and had released advance under
  the Prime Minister Rojgar Yojna, and unauthorisedly
  insisted such borrowers to provide collateral securities
D in the shape of immovable property and guarantee in
  violation of the Scheme. The charge-sheet was followed
  by an inquiry. The inquiry officer held that the acts of
  omission and commission on the part of the respondent
  were essentially in the nature of procedural lapses and
E the charge of lack of integrity was not substantiated and,
  therefore, charge no.1 was, partly proved and charge
  No.2 was not proved.

       After receiving the inquiry report, the respondent
F made his representation, and pleaded that he deserved
  to be exonerated. The appellant-bank, thereafter,
  submitted all the papers to the Chief Vigilance Officer of
  the Bank to forward the same to the Chief Vigilanr.e
  Commissioner (CVC). The respondent at that stage wrote
G to the appellant-bank seeking this correspondence with
  the eve.

      The appellant-bank declined the request of
  furnishing the correspondence of papers exchanged
  with the CVC. The Chief Vigilance Officer thereafter sent
H a letter to the disciplinary authority that the Central
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.               343
             SHECK.A.ND & ANR.
Vigilance Commission had advised to impose a major A
penalty of reduction of two stages in pay scale, and
thereupon the punishment of reduction of two stages in
pay scale was imposed. The respondent filed a
departmental appeal, which was rejected. The review
thereof was also rejected by the Board of Directors.   B

     The respondent filed a writ petition before the High
Court on which an order came to be passed that the
reviewing authority may consider the review application
of the respondent. Time to take the decision was also           C
extended on one occasion, and the High Court was
informed that the Bank was considering commutation of
the major penalty. The Chief Vigilance Officer of the bank
wrote to the Chief Vigilance Commission that the penalty
imposed deserved to be modified to a minor penalty.
However, the request was not accepted and, the                  D
appellant-bank informed the respondent that the review
petition was rejected. This led the respondent to file a writ
petition. Apart from the prayer to quash the order of
punishment, the respondent also sought a direction that
he be considered for further promotion. It was his              E
contention that his turn had come up for consideration
for promotion, and it was declined because of the
departmental action. The High Court relied upon *Nagaraj
Shivarao Karjagi and quashed the punishment and, also
directed to consider him for further promotion. The             F
instant appeal was filed challenging the order of the High
Court.
    Partly allowing the appeal, the Court
    HELD: 1. Undoubtedly, there was a serious allegation G
against the respondent, and such acts could not be
condoned. At the same time, the bank management itself
had taken the view in the initial stage that the action did
not require a major penalty. The High Court was also
informed at the stage of review that the Bank was H
    344    SUPREME COURT REPORTS              [2014] 3 S.C.R.

A considering imposition of a minor penalty. It is quite
  possible to say that the bank management did arrive at
  its decision to maintain a major penalty at a later stage
  on its own, and not because of the dictate of the eve,
  but at the same time it has got to be noted that the eve
8 report had been sought by the management of the bank,
  and thereafter the punishment had been imposed. The
  Disciplinary Authority had recorded its own findings, and
  had arrived at its own decision, but when this advise from
  eve was sought, it could not be said that this additional
C material was not a part of the decision making process.
  When this report was not made available to the
  respondent, it is difficult to rule out the apprehension
  about the decision having been taken under pressure.
  Any material, which goes into the decision making
  process against an employee, cannot be denied to him.
0
  [para 17] [355-H; 356-A-D]

         *Nagaraj Shivarao Karjagi vs. Syndicate Bank Head
    Office, Manipal AIR 1991 SC 1507: 1991 (2) SCR 576; State
    Bank of India vs. D.C. Aggarwal AIR 1993 SC 1197: 1992 (1)
E Suppl. SCR 956 - relied on.

        Disciplinary Authority-Cum-Regional Manager vs.
    Nikunja Bihari Patnaik 1996 (9) SCC 69: 1996 (1) Suppl.
    SCR 314 - referred to.
F     2. The respondent was already in a post of a Senior
  Manager. He was seeking a promotion to a still higher
  position. Promotion as such, and in any case, to a higher
  post cannot be insisted as a matter of right. In the instant
  case, the respondent was considered for promotion in
G 2002 and was not found fit. It was pointed out that this
  was not merely on the basis of the punishment that was
  imposed on the respondent. He had previous adverse
  entry also in his record in the year 1999. Besides, even if
  the charge is seen independently, purchasing third party
H cheques and drafts of huge amounts beyond his
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.              345
             SHEOKAND & ANR.
authority of lending has been held to be proved against A
the respondent, and that finding has not been seriously
contested and dislodged. Whether he deserved a major
punishment or not, or whether a lenient view of the
allegations should be taken by considering his conduct
as a procedural lapse is another aspect. In the instant B
case, the decision to impose a major punishment had to
be interfered with because of the manner in which the
decision was taken. It is apparent that it was not a case
for complete exonerat\on, however, it will not be desirable
to give such direction after so many years, particularly, c
when the respondent has since retired. That being so, the
order quashing the punishment will remain. That,
however, would not mean that the direction of the High
Court to the appellant to consider the respondent for
promotion should be sustained. The respondent was 0
considered for promotion once again in the year 2005,
and not found fit for the promotion. Thus, the bank had
considered the respondent after the impugned judgment
which was in favour of the respondent. Inasmuch as the
record of the respondent was not satisfactory, there was E
no occasion for the High Court to give any such direction
on the footing that the respondent was denied the
consideration only because he had suffered a
punishment. That inference was not called for. Whereas
the judgment and order of the High Court setting aside
the punishment will remain, the direction to consider him F
for promotion, and give him benefits on that footing will
have to be set aside. The respondent will however get the
monetary benefits on the footing that the. said
punishment is quashed. [para 18 to 20] [356-G-H; 357-A-
H; 358-A]                                                   G
                   Case Law Reference:
    1991 (2) SCR 576                         Para 10
    1992 (1) Suppl. SCR 956                  Para 10         H
    346      SUPREME COURT REPORTS                [2014] 3 S.C.R.


A         1996 (1) Suppl. SCR 314                    Para 14

        CIVIL APPELLATE JURISDICTION : Civil Appeal No.
    3081 of 2006.

        From the Judgment and Order dated 16.03.2004 of the
B High Court of Punjab and Haryana at Chandigarh in Civil Writ
  Petition No. 18847 of 2001.

        K.N. Bhatt, Rajat Arora, Rajiv Nanda, Anantha Narayana
    M. G. for the Appellants.
c        Nidhesh Gupta, Tarun Gupta, Daphne (for S. Janani) for
    the Respondents.

          The Judgment of the Court was delivered by

D       H.L. GOKHALE, J. 1. This Civil Appeal seeks to
  challenge the judgment and order dated 16.3.2004 rendered
  by a Division Bench of Punjab and Haryana High Court in Civil
  Writ Petition No.18847 of 2001, allowing the said Writ Petition
  filed by the respondent, a Senior Manager in the appellant-bank.
E That judgment and order quashed the disciplinary order passed
  by the appellant-bank reducing him in two stages in pay scale
  with cumulative effect and also directed that he be considered
  for further promotion.

    The facts leading to this appeal are this wise:-
F
       2. The respondent at the relevant time was working as the
  Senior Manager in a branch of the appellant-bank at Narwana,
  Bahadurgarh. It was noticed by the bank that he had purchased
  third party cheques/drafts of huge amounts beyond the
G discretionary powers of lending. This was done without
  completing the pre-sanction formalities. The appellant-bank,
  therefore, served a show cause notice to the respondent on
  26.2.1997 for committing these unauthorised acts. The
  respondent filed a detailed reply dated 12.4.1997 Therein the
H respondent admitted committing of the alleged acts. He,
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.                 347
     SHEOKAND & ANR. [H.L. GOKHALE, J.]
                                   .
however, stated that this was done with the intention of A
increasing the profits of the bank. He also contended that the
bank had not suffered any loss in these transactions.
                                                      c

    3. The appellant-bank, thereafter, charge-sheeted the
respondent on 1.12.1997 for tw_o specific irregularities, they       ,
                                                                 8
were as follows:-

    "Charge No. 1 - Respondent had unauthorisedly
    purchased 3rd party cheques/drafts of huge amount
    aggregating to Rs.45.23 crores for a number of parties
    much beyond his discretionary powers of lending without C
    completing pre-sanction formalities in violation of head
    office guidelines. Thus he violated Regulation 3(i) of
    Oriental Bank of Commerce Officer Employees (Conduct)
    Regulation, 1982.
                                                                D
    Charge No.2- Respondent had released advance under
    the Prime Minister Rojgar Yojna, and unauthorisedly
    insisted such borrowers to provide collateral securities in
    the shape of immovable property and guarantee in
    violation of the above scheme."
                                                                E
     4. The charge-sheet was followed by an inquiry. The inquiry
officer gave a report dated 26.2.1999 which was forwarded by
the respondent on 17.4.1999.lo make a representation on the
findings. In paragraph 4 of the report, the inquiry officer dealt
with statement of SW-1 (State Witness No.1) which stated that F
as per the head office circular, the discretionary powers of the
Branch Manager at the relevant time were up to Rs.30 lacs for
purchasing bank drafts and government cheques, and up to
Rs.1.5 lacs for third party cheques. As against this provision,
the respondent had purchased cheques/drafts aggregating to G
Rs.45.23 crores as per the details produced in the inquiry
report. This was done without any authorization, and particularly
when the authority of the respondent in this behalf was placed
under abeyance. The respondent raised various technical
objections with respect to the production of the documents, but H
    348       SUPREME COURT REPORTS                   [2014) 3 S.C.R.


A essentially contended that his acts, which went beyond
  discretionary powers, were ratified and confirmed by the higher
  authorities. He submitted that these instruments were received
  from the respectable parties to increase the profit of the branch.
  With respect to the instructions issued to him by the Regional
B Manager to stop purchasing these cheques and drafts, he
  submitted that he had not violated these instructions.

        5. The paragraph 4.3 of the Enquiry report contains the
    assessment of evidence on charge No.1. It reads as follows:-

c         "4.3 Assessment of Evidence:-

          Ex. S.27 and S. 28 are head office circulars which lay down
          the discretionary powers of the branch incumbent. SW1
          confirmed that during the material time the powers of the
D         BM (Branch Manager) was 30 lacs for purchase of bank
          draft and Rs. 1.5 lacs for third P?rlY cheques. SW1 also
          confirmed that the CO(Charged Officer) had purchased
          cheques/drafts beyond his discretionary powers. He
          deposed that 77 cheques/drafts amounting to 40 crores
          and 153 cheques/drafts amounting to 14. 63 crores were
E
          purchased through clearing adjustment account. It was
          confirmed that discounting of cheques/drafts through
          clearing adjustment account was not permitted as per HO
          guidelines. SW1 confirmed that Ex. S2 was HO (Head
          Office) Circular dated 11. 12. 95 which had placed in
F         abeyance the discretionary powers of the BM and
          Regional Heads in respect of loans and advances except
          in the priority sector. SW1 confirmed that s-15 was HO
          circular dated 23.10.96 releasing the aforesaid
          restrictions. It is, therefore, evident that the powers of the
G         BM and the Regional Heads had been kept in abeyance
          between 11.12.95 to 23.10.96. On examining Ex. S.3, S4
          and S. 17, SW1 confirmed that the CO had unauthorisedly
          purchased cheques/drafts during the period.
          Furthermore, SW1 confirmed that the cheques
H         purchased through clearing adjustment account are that
ORIENTAL BANK OF COMMERCE & ORS. v. S.S.               349
    SHEOKAND & ANR. [H.L. GOKHALE, J.]
  of sister and allied concerns. Ex. S. 27 and 28 would        A
  evidence that this power was vested with the GM (General
  Manager) and higher officers only. SW1 also confirmed
  that since the parties in question were also enjoying
  certain credit facilities sanctioned by RO/HO (Regional
  Office/Head Office}, the branch should not have              B
  purchased cheques/drafts of the.parties under its own
  powers. Ex. S-6, S. 7, S. 8 and S. 9 are correspondence
  which proved that the higher formation of the bank had
  raised serious objections to the CO's purchase of
  cheques/drafts. Ex. S. 10 and S. 12 are letters/replies of   c
  the CO where in he had admitted his mistakes. SW1 also
  confirmed that Ex.S.13 and S.14 are letters from the GM
  Personnel giving details of the unauthorised purchase of
  cheques and drafts by the CO, which were beyond his
  discretionary powers and made at a time when his powers      0
  were placed under abeyance. His non-reporting in the
  matter to RO has also been questioned. Ex. S14 is a
  letter from the CO accepting the aforesaid matter with an
  assurance to not to repeat the same in future. In view of
  the aforesaid evidence the contention of the CO to treat     E
  the matter as that of the priority sector is naturally not
  tenable. However, the CO has stated that there was no
  loss to the bank. The PO (Prosecuting Officer) has not
  disputed this. Therefore, the act of omission and
  commission of the CO can essentially be treated as
  procedural lapses. The charge of the lack of integrity has   F
  not been substantiated.

  Charge-1 is held as partly proved."

  Thus, the inquiry officer had held that the acts of omission G
  and commission on the part of the respondent were
  essentially in the nature of procedural lapses. He held
  that the charge of lack of integrity had not been
  substantiated. Thus, charge No.1 mentioned above was,
  partly proved.
                                                               H
    350       SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A      6. As far as charge No.2 is concerned, it was alleged
  therein that the respondent had released advances under the
  Prime Minister Rojgar Yojna, and for that insisted on the
  borrowers to provide collateral securities/guarantees of third
  party. The inquiry officer, however, noted that the prosecution
B had not placed on record any single primary document of the
  collateral securities/guarantees of third party to prove that part.
  He, therefore, held that charge No.2 was not proved.

       7. After receiving the inquiry report the respondent made
  his representation dated 4.5.1999, and pleaded that he
C deserved to be exonerated. The bank, thereafter, submitted all
  these papers to the Chief Vigilance Officer of the Bank to
  forward the same to the Chief Vigilance Commissioner (CVC).
  The respondent at that stage wrote to the appellant-bank on
  28.6.1999 seeking this correspondence with the CVC. In that
D he stated as follows:-

          "Now, after giving representation dated 4.5.99 on the
          findings of inquiry officer dated 26. 2. 99, the stage has
          come where second stage advice has to be remitted to
E         the CVC through Chief Vigilance Officer of Oriental Bank
          of Commerce and I also understand that the case has
          been remitted or the same is in the process of remitting
          to    the    Chief Vigilance        Officer alongwith
          recommendations of action proposed for onward
F         submission to the Chief Vigilance Commissioner (CVC).
          In the light of above facts, you are requested to kindly
          supply me the copies of all such recommendations
          meant for second stage advice and the advice so
          received or likely to be received from the   eve    for my
          representation on these recommendations prior to the
G
          stage of final disposal under Regulation '7' of Discipline
          & Appeal Regulations, 1982 so that the interest of my
          defence is not jeopardized. "

      8. The appellant declined that request of furnishing the
H C?rrespondence of papers exchanged with the CVC. The Chief
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.                  351
     SHEOKAND & ANR. [H.L. GOKHALE, J.]
Vigilance Officer thereafter sent a letter to the disciplinary A
authority that the Central Vigilance Commission had advised
to impose a major penalty of reduction of two stages in pay
scale, and thereupon "the order came to be passed on
27.10.1999 imposing the punishment of reduction of two stages
in pay scale. The respondent filed a departmental appeal, and B
the appeal came to be rejected. The review thereof was also
rejected by the Board of Directors. The appellate order dated
26.5.2000 passed by the General Manager (Personnel) who
was the disciplinary authority at the end of it stated as follows:-

    "..... .In .this connection it is submitted that awarding of C
    punishment with cumulative effect falls within Regulation
    4(f) and the Disciplinary Authority has independently
    applied its mind while awarding the punishment. It is
    further submitted that the advice of the      eve     is not
    binding on the Disciplinary Authority. Since the eve      is D
    rendering advice to the Disciplinary authority the
    correspondence exchanged is not required to be
    provided to the charge sheeted employee. The
    punishment has been awarded keeping in view the
    gravity of the misconduct committed by the officer E
    employee alongwith the submissions made by the
    employee.

     Submitted for orders please.
                                                                   F
     SD/- General Manager (Per.)

    Disciplinary Authority."

    The Chairman & Managing Director, who was the
appellate authority, passed his orders into following words:- G

                                     "I don't wish to entertain"
                                                           Sd/-
                                                      2.6.2000"

                                                                   H
    352       SUPREME COURT REPORTS                 [2014] 3 S.C.R.


A       9. Being aggrieved by the imposition of this punishment,
  the respondent filed one Writ Petition earlier bearing No.4116
  of 2001 to the Punjab and Haryana High Court on which an
  order came to be passed that the reviewing authority may
  consider the review application of the respondent. Time to take
B the decision was also extended on one occasion, and the High
  Court was informed that the Bank was considering commutation
  of the major penalty. The Chief Vigilance Officer of the bank
  wrote to the Chief Vigilance Commission on 18.8.2001 that the
  penalty imposed deserved to be modified to a minor penalty.
c It, however, appears that the request was not accepted and,
  the appellant-bank informed the respondent that the review
  petition was rejected. This led the respondent to file Civil Writ
  Petition No.1884 7 of 2001. Apart from the prayer to quash the
  order of punishment, the respondent also sought a direction that
  he be considered for further promotion from the post which he
0
  was then holding viz. that of MMGS-111 to SMGS-VI. It was his
  contention that his turn had come up for consideration for
  promotion, and it was declined because of this departmental
  action. The High Court allowed the Writ Petition by the
  impugned judgment and order.
E
        10. The High Court essentially relied upon the judgment
    and order rendered by this Court in the case of Nagaraj
    Shivarao Karjagi vs. Syndicate Bank Head Office, Manipal
    reported in AIR 1991 SC 1507. In that matter also the bank had
F   acted as per the advice of the Central Vigilance Commission.
    The punishment was interfered by this Court. In paragraph 19
    of its judgment, this Court observed as follows:-
          "19 ...... ..... The punishment to be imposed whether minor
          or major depends upon the nature of every case and the
G
          gravity of the misconduct proved. The authorities have
          to exercise their judicial discretion having regard to the
          facts and circumstances of each case. They cannot act
          under the dictation of the Central Vigilance Commission
          or of the Central Government. No third party like the
H
  ORIENTAL BANK OF COMMERCE & ORS. v. S.S.                 353
      SHEOKAND & ANR. [H.L. GOKHALE, J.]

     Central Vigilance Commission or the Central A
     Government could dictate the disciplinary authority or the
     appellate authority as to how they should exercise their
     power and what punishment they should impose on the
     delinquent officer. (See. De Smith's Judicial Review of
     Administrative Action, Fourth Edition, p. 309). The B
     impugned directive of the Ministry of Finance is, therefore,
     wholly without jurisdiction and plainly contrary to the
     statutory Regulations governing disciplinary matters."

    11. The High Court relied upon another judgment of this C
Court in the case of State Bank of India vs. D. C. Aggarwal
reported in AIR 1993 SC 1197. In that matter also, the High
Court had quashed the punishment imposed on the respondent,
since the CVC report had not been furnished to him. In
paragraph 5 of the judgment this Court observed as follows:-
                                                                   D
     "5 ...... May be that the Disciplinary Authority has recorded
    its own findings and it may be coincidental that reasoning
    and basis of returning the finding of guilt are same as in
    the eve report but it being a material obtained behind
    back of the respondent without his knowledge or E
    supplying of any copy to him the High Court in our
    opinion did not commit any error in quashing the order."

     12. Therefore, in the present case, the High Court set aside
the punishment imposed on the respondent. It also issued a F
Mandamus to the appellant-bank to consider the respondent for
promotion, which he had sought. Being aggrieved by that
judgment and order, this appeal has been filed. Mr. K.N. Bhatt,
learned senior counsel appeared for the appellants and Mr.
Nidhesh Gupta, learned senior counsel appeared for the G
respondent.

Submissions on behalf of the parties:-

      13. It was submitted on behalf of the appellants that the High
. Court had erred in interfering with the punishment and in any H
    354       SUPREME COURT REPORTS                 [2014] 3 S.C R.

A   case, directing consideration of the respondent for promotion.
    Mr. Bhatt, learned senior counsel for the appellant submitted
    that the bank was required to refer the matter to the eve which
    is constituted under the Central Vigilance Commission Act,
    2003. Regulation 19 of 1982 Regulations framed thereunder
B   makes it obligatory whenever there is a vigilance angle involved.
    This regulation reads as follows:-

          "19. Consultation with the Central Vigilance Commission:
          The Bank shall consult the Central Vigilance
          Commission wherever necessary, in respect of all
C         disciplinary cases having a vigilance angle."

        14. That apart, he submitted that the bank had arrived at
  its decision on its own, and not because of any dictate by the
  CVC. Charge No.1 was a serious charge. It was already proved
o in the Departmental Enquiry, and although it is true that at some
  stage the bank management thought that a lenient view may
  be taken, it specifically arrived at its own decision as can be
  seen from the appellate order. In his submission, there was no
  prejudice caused to the respondent by not making the report
E of the CVC available to him. Conduct of this type required a
  stringent action to be taken. He relied upon the judgment of this
  Court in the case of Disciplinary Authority-Cum-Regional
  Manager vs. Nikunja Bihari Patnaik reported in 1996 (9) SCC
  69. This Court has held in that matter that when the bank officer
  acts beyond his authority, it is a misconduct, and a proof of any
F loss to the bank is not necessary. That was a case where also
  a senior officer of the Central Bank of India had allowed over-
  drafts and passed cheques involving substantial amounts
  beyond his authority, and the respondent had been dismissed
  from his service. Mr. Bhatt, submitted that in the instant case,
G the appellant-bank had, in fact, been lenient in imposing the
  punishment of merely reducing the respondent by two grades.

       15. It was then submitted by Mr. Bhatt, that in any case the
  direction to consider the respondent for the promotion could not
H be sustained. He pointed out to us that the respondent had been
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.                     355
     SHEOKAND & ANR. [H.L. GOKHALE, J.]
punished earlier for similar conduct on 27.10.1999. He was A
considered for promotion in the year 2002, and subsequent to
the impugned judgment in the year 2005 also but was not found
fit. The learned counsel for the appellant-bank submitted that the
question of promotion to such a senior post had to be decided
on merits and suitability of the candidate. Mr. Bhatt, further B
submitted that even if the punishment was to be interfered with,
there was no case for direction for promotion.

       16. It was submitted on behalf of the respondent on the
other hand, that there was no loss suffered by the bank, and at
the highest it was a technical lapse. The bank management had         C
 also decided that a minor punishment was required, and it was
 only because of the dictate of the eve that the disputed
punishment had been imposed. Firstly, there was mo reason
to refer the issue to the CVC since there was no vigilance angle
involved therein. That apart, the report of CVC was not made          D
available to the respondent, and it clearly amounted to denial
 of fair opportunity to defend. Mr. Gupta submitted that the denial
 of promotion was essentially because of this punishment, or
else the respondent would have been promoted. He, therefore,
submitted that there was no occasion to interfere with the            E
impugned judgment and order. Mr. Gupta submitted that the two
judgments relied upon by the High Court in the case of Nagaraj
 Shivarao (supra) and State Bank of India (supra) squarely
applied to the present case, and there was no occasion for this
Court to take a different view or to interfere with any part of the   F
judgment.
Consideration of the submissions:-

     17. We have considered the submissions of both the
counsel. When we come to the question of imposition of G
punishment on the respondent, what we find is that undoubtedly,
there was a serious allegation against him, and as it has been
held in the case of Disciplinary Authority-Cum-Regional
Manager (supra), such acts could not be condoned. At the same
time, we have also to note that the bank management itself had H
    356     SUPREME COURT REPORTS                    [2014] 3 S.C.R.

A   taken the view in the initial stage that the action did not require
    a major penalty. It is also relevant to note that the High Court
    was also informed at the stage of review that the Bank was
    considering imposition of a minor penalty. It is quite possible
    to say that the bank management did arrive at its decision to
B   maintain a major penalty at a later stage on its own, and not
    because of the dictate of the eve, but at the same time it has
    got to be noted that the eve report had been sought by the
    management of the bank, and thereafter the punishment had
    been imposed. As observed in the case of State Bank of India
C   (supra), may be that the Disciplinary Authority had recorded its
    own findings, and had arrived at its own decision, but when this
    advise frum eve was sought, it could not be said that this
    additional material was not a part of the decision making
    process. When this report was not made available to the
    respondent, it is difficult to rule out the apprehension about the
0
    decision having been taken under pressure. Any material,
    which goes into the decision making process against an
    employee, cannot be denied to him. In view of the judgment in
    the case of Disciplinary Authoritycum-Regional Manager
    (supra), the decision of the Bank could have been approved
E   on merits, however, the two judgments in the cases of Nagaraj
    Shivaraj Karajgi (supra) and State Bank of India (supra) lay
    down the requisite procedure in such matters, and in the facts
    of this case, it will not be appropriate to depart from the dicta
    therein. On this yardstick alone, a part of the judgment of the
F   High Court interfering with the punishment will have to be
    sustained.

         18. Then, we come to the issue of direction of the High
    Court to consider the respondent for promotion. The
G   respondent was already in a post of a Senior Manager. He was
    seeking a promotion to a still higher position. Promotion as
    such, and in any case, to a higher post cannot be insisted as
    a matter of right. In the instant case, it has been brought to our
    notice that the respondent was considered for promotion in
H   2002 and was not found fit. It was pointed out by Mr. Bhatt that
 ORIENTAL BANK OF COMMERCE & ORS. v. S.S.                   357
     SHEOKAND & ANR. [H.L. GOKHALE, J.]
this was not merely on the basis of the punishment that was         A
imposed on the respondent. He had previous adverse entry
also in his record in the year 1999. Besides, even if we look to
the charge independently, purchasing third party cheques and
drafts of huge amounts beyond his authority of lending has been
held to be proved against the respondent, and that finding has      B
not been seriously contested and dislodged. Whether he
deserved a major punishment or not, or whether a lenient view
of the allegations should be taken by considering his conduct
as a procedural lapse is another aspect. In the instant case,
the decision to impose a major punishment had to be interfered      c
with because of the manner in which the decision was taken. It
has also been submitted that the High Court should have
referred the matter back to the appropriate authority for
reconsideration and imposition atleast of a minor penalty. It is
apparent that it was not a case for complete exoneration,
                                                                    0
however, it will not be desirable to give such direction after so
many years, particularly, when the respondent has since retired.
That being so, the order quashing the punishment will remain.
That, however, would not mean that the direction of the High
Court to the appellant to consider the respondent for promotion
                                                                    E
should be sustained.

     19. We have also been informed that the respondent was
considered for promotion once again in the year 2005, and not
found fit for the promotion. Thus, the bank had considered the
respondent after the impugned judgment which was in favour          F
of the respondent. We are not concerned as such with this
subsequent consideration, but this is only to point out that the
bank had not declined to consider him. We are of course
concerned with the direction in the impugned judgment to
consider him once again, on the basis of the material prior to      G
the judgment. Inasmuch as the record of the respondent was
not satisfactory, in our view, there was no occasion for the High
Court to give any such direction on the footing that the
respondent was. denied the consideration only because he had
suffered a punishment. That inference was not called for.           H
    358      SUPREME COURT REPORTS                  [2014] 3 S.C.R.

A      20. In fhe circumstances, we allow this appeal only in part.
  Whereas the judgment and order of the High Court setting
  aside the punishment will remain, the direction to consider him
  for promotion, and give him benefits on that footing will have
  to be set aside, which we hereby direct. The respondent will
B however get the monetary benefits on the footing that the said
  punishment is quashed.

          21. Appeal is, therefore, allowed in part as above. Parties
    will bear their own costs.
C D.G.                                       Appeal partly allowed.