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2003 DIGILAW 13 (JHR)

Gora Koley v. Coal India Ltd.

2003-01-03

M.Y.EQBAL

body2003
JUDGMENT M.Y. Eqbal, J. 1. The petitioner seeks a direction upon the respondents to give him promotion on the post of M-I grade retrospectively with effect from 6.4.1996 with all consequential benefits. 2. It appears that in 1995 when the petitioner was posted as Superintendent, Mines-cum-Colliery Manager at Dhori colliery a memorandum of charge sheet dated 1.3.1995 was served on him alleging that he failed to perform his duty inasmuch as he has not ensured the safety of the persons engaged in the safety zone; A departmental proceeding was initiated against him which ended in an order dated 17.9.1996 imposing punishment of censure in terms of the provisions of the Conduct Disciplinary Appeal Rules, 1978 of Coal India Limited. 3. The grievance of the petitioner is that though he was qualified, eligible and fit for his next promotion to the post of Deputy Chief Mining Engineer (M-I grade) on 6.4.1996 but he was not given promotion because of pendency of a departmental proceeding whereas about 10 juniors were promoted to the post of M-I grade. However, the petitioner was subsequently promoted to the post of M-I grade by Office Order dated 7.10.1997. The petitioner, therefore, claims that he was entitled to promotion with effect from 6.4.1996 and not from 7.10.1997. 4. In the counter affidavit filed on behalf of the respondents it is stated that the case of the petitioner along with the eligible candidates was considered by the Selection-cum- Departmental Promotion Committee (Board) on different dates during the month of December, 1995 for promotion from E-5 to M-I grade. However, promotion order could not be issued/released as the petitioner was charge-sheeted for safety lapses; It is stated that in 1993 also the petitioner was charge-sheeted in connection with a vital accident at Dhori colliery. In 1997 the case of the petitioner was considered and recommended by the Selection-cum-D.P.C. for promotion and, accordingly, he was promoted to M-I grade with notional seniority and notional fixation of pay after obtaining vigilance and safety clearance. 5. Mrs. M.M. Pal, learned counsel appearing on behalf of the petitioner mainly contended that denial of promotion on the ground of disciplinary proceeding or on the ground of punishment of censure is not permissible in law. 5. Mrs. M.M. Pal, learned counsel appearing on behalf of the petitioner mainly contended that denial of promotion on the ground of disciplinary proceeding or on the ground of punishment of censure is not permissible in law. Learned counsel submitted that the promotion of the petitioner was withheld in 1996 because of the pendency of the departmental proceeding which itself is a punishment and, therefore, promotion of the petitioner could not have been withheld when the departmental proceeding ended in a punishment of censure ,as it will amount to double jeopardy. Learned counsel put heavy reliance on the decision of the Patna High Court in the case of Dhirendra Nath Sahay v. State of Bihar and Ors., 1999 (1) PLJR391. 6. Admittedly In 1995 a charge-sheet was served upon the petitioner and a departmental proceeding was initiated which ended in a minor punishment of censure. In the D.P.C. held in 1996 the petitioner was not given promotion because of the pendency of the departmental proceeding. However, in 1997 D.P.C. was held subsequently in which the case of the petitioner was considered and he was given promotion to M-I grade. The argument of Mrs. Pal that the pendency of the departmental proceeding and imposition of penalty of censure could not have come in the way of the petitioner for giving him promotion with effect from 1996 as it will amount to double jeopardy, is wholly misconceived. The decision of Dhirendra Nath Sahays case (supra) relied upon by the petitioner is not at all applicable in the facts of the present case. The law has been fully set at rest by the Supreme Court in the case of Union of India v. K.V. Jankiraman, 1991 (4) SCC 109 , where their lordships observed as follows : "According to us, the Tribunal has erred in holding that when an officer is found guilty in the discharge of his duties, an imposition of penalty is all that is necessary to improve his conduct and to enforce discipline and ensure purity in the administration. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. In the first instance, the penalty short of dismissal will vary from reduction in rank to censure. We are sure that the tribunal has not intended that the promotion should be given to the officer from the original date even when the penalty imparted is of reduction in rank. On principle, for the same reasons, the officer cannot be rewarded by promotion as a matter of course even if the penalty is other than that of the reduction in rank. An employee has no right to promotion. He has only a right to be considered for promotion. The promotion to a post and more so, to a selection post, depends upon several circumstances. To qualify for promotion, the least that is expected of an employee is to have an unblemished record. That is the minimum expected to ensure a clean and efficient administration and to protect the public interests. An employee found guilty of misconduct cannot be placed on par with the other employees and his case has to be treated differently. There is, therefore, no discrimination when in the matter of promotion, he is treated differently. The least that is expected of any administration Is that it does not reward an employee with promotion retrospectively from a date when for his conduct before that date he is penalized in praesenti. When an employee is held guilty and penalized and is, therefore, not promoted at least till the date on which he is penalized, he cannot be said to have been subjected to a further penalty on that account. A denial of promotion in such circumstances is not a penalty but a necessary consequence of his conduct. In fact while considering an employee for promotion his whole record has to be taken into consideration and if a promotion committee takes the penalties imposed upon the employee into consideration and denies him the promotion, such denial is not illegal and unjustified. If, further, the promoting authority can take into consideration the penalty or the" penalties awarded to an employee in the past while considering his promotion and deny him promotion on that ground, it will be irrational to hold that it cannot take the penalty into consideration when it is imposed at a later date because of the pendency of the proceedings, although it is for conduct prior to the date the authority considers the promotion. For these reasons, we are of the view that the tribunal is not right in striking down the said portion of the second sub-paragraph after clause (iii) of paragraph 3 of the said memorandum. We, therefore, set aside the said findings of the tribunal." 7. Recently in the case of Collector of Thanjavur Distt. and Ors. v. S. Rajagopalan and Ors., 2000 (9) SCC 145 , the Supreme Court followed the earlier decision in Janakiramans case and held that denial of promotion because of pendency of a departmental proceeding and imposition of punishment would not amount of penalty and it is open to the authority to take into account the fact that some punishments were imposed on the delinquent during the relevant period. Besides, the above, the petitioner could not have claimed promotion as a matter of right. At best he was entitled to be considered for promotion and that has been done in 1996. In that view of the matter also the petitioner is not entitled to promotion with retrospective effect i.e. with effect from 6.4.1996. 8. For the aforesaid reasons, there is no merit in this writ petition which is, accordingly dismissed.