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1989 DIGILAW 411 (PAT)

Kumar Jha v. Bihar State Electricity Board

1989-11-21

S.B.SANYAL

body1989
Judgment Satya Brata Sanyal, J. 1. In this writ petition, the petitioner seeks quashing of Annexure-4, the resolution of the Bihar State Electricity Board, Patna (hereinafter to be referred to as the Board) dated 24.3.1988 (Annexure 4), an order imposing penalty of censure, and for a direction to consider the case of promotion of the petitioner to the post of Chief Engineer with effect from 20.8.1986, by ignoring the adverse entries recorded in the petitioners character roll for 1985-86 and 1986-87 and consequential decision of the selection committee dated 3.3.1988. 2. In support of the prayer of the petitioner, learned Counsel for the petitioner urged the following points: (i) The petitioner was not promoted to the post of the Chief Engineer because of pendency of a departmental proceeding, even though a post was kept reserved for him, and merely because a disciplinary proceeding was pending, a regular pomotion to which the petitioner was otherwise entitled to, could not have been withheld; (ii) The petitioner was denied promotion to the post of the Chief Engineer kept reserved for him for two adverse entries made in his character roll for the years 1985-86 and 1986-87, but as against the adverse entries, representations were pending on the date the adverse entries were relied upon for refusing to promote him: (iii) The resolution of the Board dated 24.3.1988 (Annexure. 4) imposing penalty of censure on the petitioner has been passed by not accepting the finding of the Inquiry Committee. The Inquiry Committee exonerated the petitioner of all the charges. The Disciplinary authority has not given any reason for differing with the said report of the Inquiry Committee, which, in law, the Disciplinary authority was bound. For this reason, the imposition of punishment of censure by the Disciplinary authority must be ignored. 3. On the other hand, learned Counsel appearing on behalf of the Board, submitted that this writ petition has become infructuous and the petitioner cannot be given any relief, since, he has already retired on 31.1.1989. He further submitted that if any relief is granted to the petitioner, the juniors of the petitioner will be affected, who have not been made, parties to this writ petition and, therefore, the writ petition is not entertainable. He further submitted that if any relief is granted to the petitioner, the juniors of the petitioner will be affected, who have not been made, parties to this writ petition and, therefore, the writ petition is not entertainable. The last point raised by the learned Counsel for the Board is that the imposition of the order of punishment by way of censure is legal and valid and cannot be interfered with. 4. Learned Counsel for the petitioner in support of the first point that promotion of the petitioner to the post of Chief Engineer could not be withheld in view of the pendency of a departmental proceeding, has relied upon a decision reported in the Director of Postal Service (Andhra) V/s. C. Muneshwara Rao, 1980 (2) Services Law Reporter 662 at (682). It is true that in the aforesaid case, the authority deferred the promotion of the petitioner because of the pendency of a disciplinary proceeding. The Court, however, held that withholding of promotion is a penalty and that cannot be imposed without any inquiry and, as a matter of fact, the Court found that till the date when the judgment was rendered, no inquiry in the disciplinary proceeding at all held. It will, therefore, be observed that the ratio of this decision is that there could be no imposition of any penalty without a proper inquiry in accordance with law. In the instant case, however, post was kept reserved for the petitioner, and the inquiry in the disciplinary proceeding was held by conforming to the principles of natural justice, and even though the Inquiry Officer found the petitioner not guilty of any charge, the disciplinary authority, however, imposed the penalty by taking a view different from that of the Inquiry Officer. I, therefore, hold that the deference of the promotion of the petitioner because of the pendency of the departmental proceeding cannot be held to be bad in the facts and circumstances of the present case. 5. In support of the second point that the promotion of the petitioner could not have been refused before the disposal of the representations filed by the petitioner, learned Counsel has strongly relied upon a decision reported in the case of Gurdial Singh Fijji V/s. State of Punjab and Ors. -- as also a decision reported in the case of Brij Mohan Singh Chopra V/s. State of Punjab. -- as also a decision reported in the case of Brij Mohan Singh Chopra V/s. State of Punjab. It appears that on 21.3.1987, the petitioner was communicated the adverse entry of the year 1985-86 and on 4.1.1988, the adverse entry of the year 1986-87. The petitioner on his part, filed his representations on 29.1.1988 and 8.4.1988 respectively. Admittedly, these representations are pending and have not been disposed of till date. The question is whether on 3rd March, 1988, the date of decision of the Selection Committee, the petitioner could have been denied promotion on the basis of the said two adverse entries. The Board (respondent No. 1) in its counter-affidavit has also admitted that the representations of the petitioner lie undisposed of. I find substance in the submission of the learned Counsel the petitioner so far as this point is concerned, because the principle is well settled that adverse entry in confidential character roll cannot be acted upon to deny promotional opportunity unless it is communicated to the person concerned, so that he has opportunity to improve his work and conduct or to explain the circumstances leading to the report. It is true that the adverse entries in confidential character roll were communicated to the petitioner prior to the passing of the order denying him promotion to the post of Chief Engineer, but the authorities did not consider the representation filed by the petitioner on 29.1.1988. The very purpose of communication of the adverse entries, as indicated earlier, is to afford an opportunity to explain and a consideration of that explanation. If the explanation is not considered, the very purpose of the communication is foiled. From the letter communicating the adverse entries, it is clear that the authorities did not specify any time limit to file a representation. Therefore, the filing of the representation within three months of the receipt of the representation will be deemed to be justified. In any view of the matter, one representation was pending before the authorities on the day the decision not to promote the petitioner was taken. 6. Learned Counsel appearing for the petitioner submitted I hat the respondents could not have considered the adverse entries in the confidential character roll of the petitioner in view of the decisions in Gurdial Singh Fijjig case and Brij Mohan Singh Chopras case (supra). 6. Learned Counsel appearing for the petitioner submitted I hat the respondents could not have considered the adverse entries in the confidential character roll of the petitioner in view of the decisions in Gurdial Singh Fijjig case and Brij Mohan Singh Chopras case (supra). I do not agree with the learned Counsel for the petitioner because the adverse entries were communicated to the petitioner on 21.3.1987 and 4.1.1988. The petitioner, however, is entitled to the consideration of his representations and order passed only after such consideration. I, therefore, think that the petitioner is entitled to the direction as was made by the Supreme Court in the aforesaid cited decision. The Board must consider the representations of the petitioner and dispose of the same and thereafter the Selection Committee should consider the case of the petitioner afresh for promotion to the post of the Chief Engineer. 7. I find substance also in the third point raised by the learned Counsel for the petitioner that the order of censure passed on 24.3.1988 (Annexure 4) without giving any reason for differing with the finding of the Inquiry report is bad in law. From the mere perusal of Annexure 4, nothing is discernible as to why the departmental authority disagreed with the finding of the Inquiry report. Learned Counsel for the Board states that somebody else considered the inquiry report and gave certain notes and the Departmental Head, on the basis of the notes submitted, imposed the order of penalty. The procedure as adopted is violative of the principles of natural justice. The departmental authority should have examined the matter itself and given its own judgment on application of its own mind by giving reasons for taking a view different from that of the Inquiry Officer. There must be some indication on the face of the order showing application of mind by the concerned authority. It is, however, sadly lacking in the impugned order dated 24.3.1988 (Annexure 4). I, therefore, hold that the order of censure passed by the respondent Board is illegal and inoperative and is of no consequence. 8. Now I will consider whether this writ petition has become infructuous. It is trite that the petitioner has retired from service by now because of this Courts failure to dispose of his writ petition in time. The petitioner was very much in service when this writ petition was filed on 26.5.1988. 8. Now I will consider whether this writ petition has become infructuous. It is trite that the petitioner has retired from service by now because of this Courts failure to dispose of his writ petition in time. The petitioner was very much in service when this writ petition was filed on 26.5.1988. At the time of admission on 31.8.1988, it was ordered that any action taken will be subject to the result of this writ petition and the bearing of the petition was ordered to be expedited, and as a matter of fact, 4th January, 1989, was fixed for hearing of this case 5.1.1989 the case was taken up for hearing and heard in part, but could not be concluded because this Court was heavily burdened with admission cases for several months. I, therefore, think that the petitioner cannot be punished and denied the relief, if he is at all entitled to because he has since retired. The petitioner shall be entitled to pecuniary benefits if it is found either by this Court or by the Respondent Board, his employer, that the petitioner was entitled to promotion on 9.8.1986 or 20.3.1988. In this connection, the case of Shri Charan Das Chadha V/s. State of Punjab and Anr., 1980 3 SLR 702 is worth consideration. In this case, it was held that if by quashing of a part of the impugned order, as a consequence of which a person may be entitled to receive the arrears of his pay, the Court cannot deny the said right. It observed: There is no dearth of authority to hold that once an order of the Government is found to be void of unsustainable in law and is quashed, the relief, may be a monetary relief, which flows from such a setting aside of the order has to be allowed to the successful petitioner. The decision of this Court reported in the case of Sumitra Devi and Ors. V/s. The Union of India and Ors. 1987 PLJR 714 is also important on this question. I, therefore, do not agree with the learned Counsel for the respondents that this petition has become infructuous and the petitioner is entitled to no relief whatsoever because he has retired. V/s. The Union of India and Ors. 1987 PLJR 714 is also important on this question. I, therefore, do not agree with the learned Counsel for the respondents that this petition has become infructuous and the petitioner is entitled to no relief whatsoever because he has retired. 9 The other point urged by the learned Counsel for the Board that since the juniors to the petitioners who have been given promotion, have not been made parties to this petition, the writ petition is not maintainable, is equally devoid of any substance. It is not a case whereby the promotion of the petitioner, the petitioners seniors will be affected, since, he was the seniormost for the post. Further, there is now no question of the petitioner actually holding the post of Chief Engineer, but some financial benefits flowing out of the order of promotion. I, therefore, hold that the writ petition is not incompetent because of non-impleading of the persons junior to the petitioner as respondent. 10. In the result, Annexure 4, imposing penalty of censure on the petitioner is quashed. The Board is directed to consider and dispose of within two months from the date of receipt of this order the representations made by the petitioner on 29.1.1988 and 8.4.1989 in regard to the adverse remarks recorded in his annual confidential roll of the years 1985-86 and 1986-87. The Selection Committee will within three months thereafter decide whether the petitioner was entitled to promotion; if so, from when. The other questions are not subject-matter of this writ petition, but the respondents will be required to deal with the consequences which may flow from the consideration of the representations of the petitioner, in accordance with law. 11. In the result, this writ petition is disposed of with the aforesaid observation/direction. There will be no order as to costs.