Saran Kumar S. and Shynu Sudhakaar K.S. v Union of India and IDBI Bank Ltd. and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **THURSDAY, THE 23RD DAY OF NOVEMBER 2017/2ND AGRAHAYANA, 1939** **WP(C).No. 29053 of 2016 (F)** **----------------------------** **PETITIONERS:** **-----------** **1. SARAN KUMAR S., (EMPLOYMENT CODE: 606723, EIN: 104299), MANAGER, IDBI BANK LTD., GHIYATHI TOWER, CHANGUVETTY, EDARIKKODE P.O., KOTTAKKAL, MALAPPURAM-676 501.** **2. SHYNU SUDHAKAR K.S., (EMPLOYMENT CODE: 602736, EIN: 102691), MANAGER, IDBI BANK LTD., NEAR PVT. BUS-STAND, KATTOOR ROAD, IRINJALAKUDA-680 121.** **BY ADVS.SRI.SANTHOSH MATHEW SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.ALPHIN ANTONY SRI.VIJAY V. PAUL** **RESPONDENTS:** - **-----------** **1. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, DEPARTMENT OF FINANCIAL SERVICES, JEEVAN DEEP BUILDING, PARLIAMENT STREET, NEW DELHI-110 001.** **2. IDBI BANK LIMITED,** **REGISTERED OFFICE, IDBI TOWER, WTC COMPLEX, CUFFE PARADE, MUMBAI-400 005, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR.** **3. CHIEF GENERAL MANAGER,** **IDBI BANK LIMITED, HUMAN RESOURCES DEPARTMENT, REGD. OFFICE: IDBI TOWER, WTC COMPLEX, CUFFE PARADE, MUMBAI-400 005. 4. DEPUTY GENERAL MANAGER, IDBI BANK LTD., REGIONAL OFFICE, IIND FLOOR, CITY PLAZA, YMCA CROSS ROAD, KOZHIKODE-673 001. R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL SMT.C.G.PREETHA, CGC R2-R4 BY ADVS. SRI.N.N.SUGUNAPALAN (SR.) SRI.S.SUJIN** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **EL** **WP(C).No. 29053 of 2016 (F) ----------------------------** ## **APPENDIX** |**PETITIONER(S)'**|**EXHIBITS**| |---|---| |**-----------------------**|| |**EXHIBIT P1**|<br>**COPY OF THE NOTICE DATED 2.8.2016, ISSUED TO THE FIRST**| ||**PETITIONER BY THE DEPUTY GENERAL MANAGER, HUMAN RESOURCES**| ||**DEPARTMENT.**| |**EXHIBIT P2**|<br>**COPY OF THE REPLY DATED 3.8.2016 SUBMITTED BY THE FIRST**| ||**PETITIONER TO THE DEPUTY GENERAL MANAGER, HUMAN RESOURCES**| ||**DEPARTMENT.**| |**EXHIBIT P3**|<br>**COPY OF THE REPLY RECEIVED BY THE FIRST PETITIONER BY E-MAIL**| ||**ON 29.8.2016.**| |**EXHIBIT P4**|<br>**COPY OF THE NOTICE DATED 2.8.2016 ISSUED TO THE 2ND PETITIONER**| ||**BY THE DEPUTY GENERAL MANAGER, HUMAN RESOURCES DEPARTMENT.**| |**EXHIBIT P5**|<br>**COPY OF THE REPLY SUBMITTED BY THE 2ND PETITIONER TO THE**| ||**DEPUTY GENERAL MANAGER, HUMAN RESOURCES DEPARTMENT.**| |**EXHIBIT P6**|<br>**COPY OF THE REPLY RECEIVED BY THE 2ND PETITIONER BY E-MAIL ON**| ||**29.8.2016.**| |**RESPONDENT(S)'**|**EXHIBITS**| |**-----------------------**|| |**EXHIBIT R2(A)**|**TRUE COPY OF THE PROMOTION POLICY OF THE RESPODNENT BANK**| |**EXHIBIT R2(B)**|**TRUE COPY OF THE COMMUNICATION DATED 26.9.2016 ISSUED BY IBPS**| ||**TO THE RESPONDENT BANK**| |**EXHIBIT R2(C)**|**TRUE COPY OF THE ANALYTICAL DATA OF QUESTION ATTEMPTED BY**| ||**PETITIONERS ISSUED BY IBPS**| |**EXHIBIT R2(D)**|**TRUE COPY OF THE OFFICE NO.3005 DATED 6.9.2016 OF THE 3RD**| ||**PETITIONER/3RD RESPONDENT**| ||**TRUE COPY**| ||**P.S. TO JUDGE**| **EL** ## **P.V.ASHA, J.** ## **W.P.(C) No.29053 of 2016** ## **Dated this the 23[rd] day of November, 2017** ## **JUDGMENT** The petitioners are Managers in IDBI bank. They filed this writ petition aggrieved by the orders debarring them from appearing in the examination/promotion in the Bank on the ground that they were found to have been engaged in unfair practices during the online written examination. 2. Petitioners, who had been working as Grade B Officers in the IDBI Bank (hereinafter referred to as 'the Bank' for short), appeared in the written test held on 23.07.2016, for promotion from Grade B to Assistant Manager (Grade C) post. Thereafter Exts.P1 and P4 show cause notices were issued to the petitioners, stating that the respondent Bank had received a report from the Institute of Banking Personnel Selection (IBPS) that during the written test held on 23.07.2016, the petitioners had adopted use of unfair means which is in gross violation of Bank's extant promotion policy. Even though what was the unfair practice adopted by them was not stated in the notice, petitioners were asked to submit their explanation. The petitioners submitted their explanation Exts.P2 and P5, stating that they had answered all the 100 questions out of the 120 questions within the possible time in accordance with the instructions issued and they have W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** not adopted any unfair means. They pointed out that they have been performing their duties without giving room for any complaints for the last several years and requested the authorities to consider those facts before proceeding further and requested to drop further proceedings. However as per Ext.P3 letter dated 26.8.2016, the 1[st] petitioner was informed that his explanation was not acceptable and therefore under the provisions of the Bank's extant promotion policy (paragraph 4.07) he was debarred from participating in the process of promotion for the current promotion year 2016-17 as well as the next promotion years 2017-18 and 2018-19. Similar notice Ext.P6 was issued to the 2[nd] petitioner also. The petitioners filed this writ petition aggrieved by the orders debarring them from appearing in the promotion examination and alleging that the orders are issued in violation of the principles of natural justice and as much as the report based on which action taken is not furnished to them and they were not afforded an opportunity to explain their innocence. 3. Respondents 2 to 4 have filed counter affidavit stating that action against the petitioners was taken on the basis of Ext.R2(b) communication and Ext.R2(c) analytical data received from the IBPS. Respondents in the counter affidavit stated that in view of a series of judgments, the right of petitioners to consider them for promotion is W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** not violated or infringed. It is stated that the promotion in the bank is governed by clause 4.05.05 and 4.07 of the promotion policy. Clause 4.05.05 provides that the marks secured in the written test shall be communicated to the concerned officers through HRMs except for those candidates whose cases are covered under Sealed Cover Procedure or whose cases have been identified as resorted to unfair means in the written test. Clause 4.07 provides that in case a candidate is found adopting/abetting use of unfair means, either during the written test or at any time before or after the same, then the candidate shall be debarred from the promotion process. Further, the candidate also will be debarred from participating in the promotion process for the next 2 years, besides initiation of disciplinary proceedings, as is deemed fit. In the case of the petitioners the bank had issued show cause notices after the petitioners appeared in the online written test for promotion which was held on 23.7.2016, as the IBPS informed the respondent bank that petitioners had indulged in use of unfair means in the written test. On the basis of the report received from the IBPS the bank called upon the petitioners to submit explanation and orders were issued debarring them from appearing in further promotion test after finding that the explanations were not acceptable. It is stated that the test is conducted by the IBPS. The W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** online written test consists of multiple choice objective test; IBPS analyses the pair of candidates selecting identical wrong answers and furnishes its report thereon. The method of identifying the cases of use of unfair means in multiple choice question is an internationally accepted practice. IBPS detects cases of unfair means on the basis of analysis of responses given by the candidates. IBPS has a scientific way of analysis to detect the cases of unfair means. 4. Respondents relied on the judgment of the High Court of Delhi in LPA No.155 of 2013 in which the IBPS sent a similar report of detecting of adopting unfair means. In that case, the High Court did not interfere. It is stated that the IBPS had furnished its report as per Ext.R2(b) letter dated 26.9.2016. In Ext.R2(c) report, it furnished the details of the number of questions attempted by both the petitioners, identical correct answers and the number of identical wrong answers. It was also stated in Ext.R2(c) report that seating arrangement of the petitioners was nearly adjacent in the same lab. Ext.R2(c) contained the analytical data of pairs of candidates established/suspected to have copied/used unfair means. In Ext.R2(c) it was stated as follows: _As informed to you, IBPS checks for the possibility of candidates using unfair means in the examination as part of well established post exam processing as detailed in (Annexure-I)_ W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** _During analysis for the captioned examination, some candidates have been found to resorting to unfair means. We are enclosing the detailed report of the Analytical data of these candidates in Annexure-II_ _Our copying analysis is irrespective of Invigilator's/CTA's reporting of any such malpractise. It may please be noted that IBPS will not be in a position to provide any additional document other than what has been submitted, nor shall we be the personally available as witness._ 5. Learned counsel for the petitioners submits that expert group report is not furnished along with analytical data. Learned counsel submits that clause iv (iii) of Ext.R2(b) deals with the procedure followed by IBPS for identifying the use of unfair means which reads as follows: _This report is critically reviewed by group of IBPS experts. The expert group considers the following in addition to identical wrong answers while deciding on reporting use of unfair means and a final report is prepared only after the committee reviews other factors supporting the analysis and the cases are forwarded to the bank for taking necessary action:_ _1. Evidence of any random/pattern marking_ _2. Identical matches of 'intermitten' and 'end' skipped questions_ _3. Item which otherwise how different answer acrosscentre_ 4. Evidence of copying by a common group of candidates It is therefore stated that the procedure stated in Ext.R2(b) is not followed in the case of the petitioners. 6. On the other hand, the learned Senior Counsel for the W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** respondent bank relies on the findings of IBPS in Ext.R2(c). Learned counsel for the petitioners submits that there should be a report by the expert committee subsequent to the finding on the basis of unfair means/copying. Such expert group shall review the matter and only thereafter the cases shall be forwarded to the bank for taking steps and that Ext.R2(c) should not have been accepted in the absence of such a report. However, petitioners have not impleaded IBPS. 7. According to the learned senior counsel when IBPS has already recommended to take action on the basis of a finding that malpractice is found the bank has to take action and accordingly they have taken action in tune with the provisions contained in the promotion policy. It is argued that once a report is forwarded calling for a report on the same, the 2[nd] respondent Bank has no other option than to take action against those mentioned in the report. 8. The learned counsel for the petitioners relied on the judgment of the the Apex Court in _**State Bank of India and others vs. Palak Modi and another : 2013 (3) SCC 607**_ (paragraph 37 at page 633) in which also the use of unfair means in the evaluation test held by bank was considered. There also IBPS had relied upon the analysis made by the computer and sent a report to the Bank that 18 candidates were suspected to have used unfair means. However the W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** respondents in those case had approached the court aggrieved by the termination of their services. They were on probation and they were found to have adopted unfair means while appearing in the test for confirmation. Based on the report of IBPS, they were discharged without issuing any notice or conducting any inquiry. The apex court found that the reason for their termination from service, though they continued to be on probation was the suspected unfair means adopted by them. In such circumstances the apex court held the termination unsustainable. The Apex Court directed their reinstatement with pay and allowances etc, on that ground. It was made clear that the competent authority would be free to take a fresh decision in the matter of confirmation after giving them opportunity of hearing against the allegation of use of unfair means. 9. The learned senior counsel for the Bank relied on the judgment of the apex Court in _**Nidhi Kaim vs. State of Madhya Pradesh and others : 2016 (7) SCC 615**_ which relates to unfair means/mass copying adopted in examination wherein separate judgments were rendered by the Apex Court in which it was stated that the Court under Article 226 of the Constitution of India cannot interfere with matters of such nature. Relying on paragraphs 38, 39, 46, 49 and 111 it was argued that when there is a system for W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** detecting copying or the unfair means it is for the expert committee to deal with the matters and not for the Court. The mass copying in this case was in a pre-entrance examination whereas in the other case it was in an examination conducted by IBPS itself. The circumstances arising in both the cases are not identical. 10. Apart from that in the judgment dated 24.11.2015 of the Division Bench of the Delhi High Court in LPA 155 of 2013, is also relied on, in which that court did not interfere in an identical case of copying/adopting unfair means. The contention on violation of principles of natural justice was also considered. It was held that petitioner therein does not have any vested right to enquiry, he being an entry level candidate. It was a case where a candidate from open market appeared in the examination; but his results were not declared. After submitting application under the Right to Information Act, he approached the Court seeking directions against SBI to appoint him. It was thereafter that the SBI revealed that his candidature was cancelled on the basis of the report of the IBPS. The appellant there had 6 identical wrong answers with one candidate and 7 identical wrong answers with another candidate. It was held that once the SBI uniformly applied IBPS test the court would not interfere as it would amount to quashing of the application of the IBPS test used by SBI. At W.P.(C) No.29053/16 **==> picture [14 x 10] intentionally omitted <==** any rate contention regarding the absence of material on record to act upon to arrive at a finding that he adopted unfair means was ruled out. 11. The factual difference in the present case is that petitioners in the present case appeared for the promotion test, whereas in _**Palak Modi's**_ case, he was on probation and appeared in the confirmation test and the appellant before the Delhi High court was an outsider who appeared in the entry test. 12. In this case the petitioners have not chosen to implead IBPS as was done in the case which was considered by the apex court in _**State Bank of India and others vs. Palak Modi and another :**_ _**2013 (3) SCC 607**_ . Moreover the Delhi High Court had rejected the contention of the petitioner therein after considering the apex court judgment in _**Palak Modi's**_ case (supra). The procedure adopted by the IBPS is explained in detail in that case. In the present case the Bank accepted the report and acted on the basis of the promotion policy. Whether the report forwarded to the bank was after it was sent to the expert committee or it was forwarded after complying with the procedure contained in Ext.R2(b) cannot be gone into, without IBPS on the party array. In the above circumstances I do not find any circumstances to interfere with the action of the bank. W.P.(C) No.29053/16 **==> picture [20 x 10] intentionally omitted <==** Learned counsel for the petitioners submitted that debarring of the petitioners from appearing in the examination for promotion for a period of three years is excessive and disproportionate to the gravity of the offence they are found to have committed. But I find that the 2[nd] respondent has only acted in accordance with the provisions contained in clause 4.07 of Ext.R2(a) promotion policy, which provides that when a candidate is found adopting/abetting use of unfair means, either during the written test or at any time before or after the same, the candidate shall be debarred from the promotion process. It further provides that the candidate also will be debarred from participating in the promotion process for the next two years and also initiate disciplinary action. The consequences of a finding that candidate adopted unfair means is provided in the promotion policy. Therefore it cannot be said that there is any disproportionality in debarring the petitioners. However it will be open for the petitioners to move the Bank for reducing the punishment of debarring for three years. The writ petition is accordingly dismissed. Sd/- **P.V.ASHA JUDGE** rkc