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Jharkhand High Court · body

2001 DIGILAW 351 (JHR)

Raman Kumar v. Coal India Limited

2001-05-31

M.Y.EQBAL

body2001
Order I have heard Mr. A.K. Sahani, learned counsel for the petitioner, Mr. M.M. Banerjee, learned counsel for the respondent-Coal India Ltd. and Mrs. Ritu Kumar, learned counsel for the respondent-Central Coalfields Ltd. 2. In this writ application the petitioner has prayed for issuance of writ of mandamus commanding upon the respondents to consider and accord promotion to the petitioner in E-3 & E-4 grade from the date of his eligibility on cluster basis maintaining inter se seniority with all consequential benefits and also to pay arrears of salary since 1.7.1993 to 20.6.1995, 1.8.1996 to 16.4.1998 and 17.4.1998 to September, 1998. 3. Petitioner's case is that he was appointed on the post of Junior Executive Trainee in 1985 and his services were confirmed in 1990. Petitioner applied for leave from 8.6.1993 to 22.6.1993 which was extended from time to time and on the expiry of leave period, petitioner submitted his joining on 23.9.1993. It is contended that although medical board was constituted and the board issued a certificate of fitness of the petitioner for his joining in his duty but he was not allowed to join. Consequently petitioner filed CWJC No. 321 of 1995 (R), which was disposed of on 9.5.1995 directing the petitioner to file fresh application before the Chairman, Central Coalfields Ltd. and the Chairman was also directed to pass speaking order within six weeks. How-ever, the petitioner was directed to report for his duty on 10.6.1995. Petitioner accordingly resumed his duties on 12.6.1995. Petitioner submitted his representation claiming his arrears of salary and other benefit, which was denied by the respondents vide letter dated 1.8.1995. Petitioner's further case is that by notice dated 09/13-8-1996, petitioner was asked to submit his representation against the proposed punishment of termination of his service. Petitioner then filed CWJC No. 4093/1996 (R) for quashing the said notice. In the said writ application, the respondents filed counter affidavit annexing a copy of the order dated 16.4.1997 passed by the Chairman cum-Managing Director of respondent No. 1, Coal India Ltd. removing the petitioner from the services. In the meantime, CWJC No. 4093/1996 (R) was disposed of and the letter dated 26.4.96 was quashed. Petitioner then filed representation dated 11.3.1998 before the respondents and the General Manager (Personnel) of Coal India Ltd. by order dated 2.4.1998 permitted the petitioner to join his duties. In the meantime, CWJC No. 4093/1996 (R) was disposed of and the letter dated 26.4.96 was quashed. Petitioner then filed representation dated 11.3.1998 before the respondents and the General Manager (Personnel) of Coal India Ltd. by order dated 2.4.1998 permitted the petitioner to join his duties. Petitioner's further case is that upon completion of three years of service and on the basis of cluster system, petitioner became entitled for promotion to E-3 cadre which fell due in May 93. Thereafter, next promotion to the petitioner to the post of E-4 grade fell due in the month of May 96. Petitioner alleged that he was not given opportunity for consideration of his case for promotion to next higher E-4 grade. Even after permitting the petitioner to join his service, his salary for the aforementioned periods have not been paid to him. 4. In the counter-affidavit filed by the respondents it is stated that petitioner was appointed on 16.5.1985 and was posted at Rajrappa Project of Central Coalfields Ltd. Petitioner was habitual absentee and was on long unauthorised absence from 23.6.1993. A Memorandum dated 30.12.93 was issued to the petitioner for his long absence and after having not satisfied with the reply submitted by the petitioner, an inquiry committee was constituted. The charges levelled against the petitioner was duly established. Before passing final order by the disciplinary authority, a copy of the inquiry report was duly served to the petitioner vide letter dated 13.8.96. However, petitioner was allowed to join his duty with effect from 12.6.1995, pending finalisation of inquiry vide letter dated 17.6.1995. It is stated that in pursuance of order dated 9.5.1995 passed by this Court in CWJC No. 321/ 1995 (R) respondents after hearing the petitioner passed speaking order on 1.8.95 advising him to properly attend the inquiry proceeding. In spite of the said advice of CMD, CCI, petitioner did not attend the inquiry proceeding and the inquiry 'was proceeded ex-parte. It is stated that as the charges levelled against the petitioner were proved, the respondent Coal India, Ltd. Wide letter dated 16.4.1997 imposed major' penalty of rated moval from service of the company. In spite of the said advice of CMD, CCI, petitioner did not attend the inquiry proceeding and the inquiry 'was proceeded ex-parte. It is stated that as the charges levelled against the petitioner were proved, the respondent Coal India, Ltd. Wide letter dated 16.4.1997 imposed major' penalty of rated moval from service of the company. Howeever, in compliance of the order dated 19.1.1998 passed in CWJC 'No. 4093/96 (R), petitioner was allowed to join his duties and the period of absence of the petitioner was treated as "DIES-NON" with stipulation that he will not be entitled for any benefit of the said period. So far claim of the petitioner for promotion is concerned, it is stated that the promotion of departmental executive is determined on the basis of minimum qualification and maximum period of service in a particular grade as indicated in the respective cadre scheme. Unless otherwise stipulated in the relevant cadre scheme, an executive has to put in a minimum of three years service in a particular cadre before he became liable for consideration for promotion to the next higher grade. It is contended that the services of the petitioner for the purpose of promotion has been counted with effect from 2.4.1998 i.e. the date when the petitioner was allowed to resume his duties with immediate effect without any backwages. 5. Petitioner's case in paragraph 5 of the writ petition is that he applied for leave from 8.6.93 to 22.6.93 which was extended from time to time and on expiry of the leave period petitioner submitted his joining on 23.9.93. The respondents have denied the said statement and contended that petitioner was granted leave upto 22.6.93 and on expiry of this period he was schedule to join his duties on 23.6.93 but he over-stayed unauthorisedly till 22.9.93. Petitioner was advised repeatedly in writing by the management but he did not respond to the said letter. Petitioner reported for duty on 23.9.93 at Rajarappa Project wherefrom he was advised to report to Gandhi Nagar Hospital at Ranchi for his medical checkup before allowing him to join his duties, since the period of absence had exceeded the permissible limit of 60 days While his case was processed by taking administrative decision, petitioner left the area and thereafter reported in the last week of February, 1994. Petitioner appeared before the Medical Board on 11.4.94. Petitioner appeared before the Medical Board on 11.4.94. However, he was finally allowed to join his duties with effect from 12.6.95. So far absence of the petitioner from 23.6.93 to 22.9.93 is concerned, petitioner has not submitted any documents to show that his leave was extended after 22.6.93 till 22.9.93. There is no satisfactory evidence on record which justify the absence of the petitioner from 23.6.93 to 22.9.93. I am therefore of the view that the impugned order of the respondent authority refusing to pay salary to the petitioner for that period is fully justified. 6. Admittedly, petitioner submitted his joining on 23.9.93 but the same was not accepted on the ground of medical examination and on the direction of the respondents to the petitioner that before accepting his joining, he shall have to appear before the medical board. Petitioner did appear before the medical board on 2-3 occasions and it was thereafter .in pursuance of the direction of the respondents vide letter dated 10.6:95 petitioner resumed his duties on 12.6.95. In that view of the matter, the absence of the petitioner from 24.9.93 to 11.6.95 cannot be said to be unauthorised. Similarly, after the petitioner resumed his duties on 12.6.95 the respondents proceeded with the inquiry and finally passed order on 26.4.97 removing the petitioner from service. The said order was ultimately quashed by this Court on 19.1.98 in CWJC No. 4093/96 (R). By the said judgment and order dated 19.1.98 the Disciplinary Authority was directed to consider the case of the petitioner after giving opportunity of hearing and serving copy of the inquiry report. Petitioner accordingly filed representation which was ultimately considered by the respondents and by the impugned order dated 2.4.98 petitioner was allowed to join the service but without and backwages. It is there fore, evident that from 26.4.97 i.e. the date of passing of order of removal till the date of passing the impugned order, the petitioner was kept out of service by the respondents. Further from 12.6.95 i.e. the date when petitioner resumed his duties till the date of passing the order for removal of the petitioner from service, the said period cannot be counted as the period during which the petitioner remain absent without leave. Consequently, in my opinion, the impugned order whereby this period treated as "DIES-NON" is not justified. Further from 12.6.95 i.e. the date when petitioner resumed his duties till the date of passing the order for removal of the petitioner from service, the said period cannot be counted as the period during which the petitioner remain absent without leave. Consequently, in my opinion, the impugned order whereby this period treated as "DIES-NON" is not justified. Accordingly, I hold that petitioner would be entitled to his arrears of salary for the period from 23.9.93 to 2.4.98. 7. So far the second grievance made by the petitioner with regard to his promotion to the next higher grade is concerned, it would be useful to refer paragraph 11 of the counter-affidavit wherein the details of period of unauthorised absence from the place of duty has been given which is quoted herein below: "That with regard to the statement made in para-5 of the writ application filed on behalf of the petitioner I say and submit that the period of unauthorised absence from the duty place of the petitioner is depicted below:- (a) 17.6.91 to 13.7.91 27 days E.L.14.7.91 to 22.8.91 40 days HPL (86 days, 19 days LWP) (b) 21.4.92 to 16.6.92 57 days EL 17.6.92 to 26.7.92 40 days EL (157 days) 60 days LWP (c) 23.6.93 to 11.6.95 Unauthorised absence of 355 day.;. It would be pertinent to mention here that the petitioner was very irregular in his attendance and on work place.” 8. However, it is contended by the respondents that the services of the petitioner for the purpose of promotion shall be reckoned with effect from 2.4.98 i.e. the date when he was allowed to resume his duty with immediate effect. The averments made in paragraph 11 of the counter-affidavit as quoted hereinabove has not been controverted by the petitioner. It is therefore, evident that the petitioner is in the habit of remaining absent either on authorised leave or unauthorised leave. In between 17.6.91 and 26.7.92 the petitioner remained absent for about 243 days. It is also clear that petitioner is very much irregular in his duty. In that view of the matter, I am of the opinion that the respondents have rightly decided that services of the petitioner for the purpose of promotion shall be reckoned with effect from 2.4.98. I am therefore not inclined to interfere with that part of the impugned order passed by the respondents. 9. In that view of the matter, I am of the opinion that the respondents have rightly decided that services of the petitioner for the purpose of promotion shall be reckoned with effect from 2.4.98. I am therefore not inclined to interfere with that part of the impugned order passed by the respondents. 9. This writ application is therefore allowed in part and the impugned order dated 2.4.98, so far as it relates to nonpayment of salary for the period 24.9.93 till the date of joining is quashed. The other conditions imposed in the impugned order are sustained.