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2004 DIGILAW 41 (CHH)

CENTRAL COALFIELDS v. ARUN KUMAR SHUKLA

2004-02-13

FAKHRUDDIN, K.H.N.KURANGA

body2004
JUDGMENT Shri Fakhruddin, J. :- 1. The appellants have preferred this appeal under Clause 10 of the Letters Patent against the order dated 29-7 -2003 passed by the Writ Court in W.P. No. 1790/2003, whereby the petition filed by the present respondent has been allowed. 2. Briefly stated the facts are that the respondent joined the service of Coal India Limited in the year 1967 and thereafter in due course he was promoted as General Manager, Dhori where he joined on 20-11-1993. He joined Girden Area on 10-9-1996 and remained there upto 6th May, 1997 as General Manager. Subsequently he was promoted as Chief General Manager vide order dated 13th November, 1997 and he is continuing to work as such on various posts. The respondent had good academic career and excellent service record and on the basis of his outstanding performance in the Coal Industry quick promotions were granted to him. When he joined at Girden Area of Central Coalfields Limited on 10th September, 1996, he was totally new to that area. C.C.L. is an independent subsidiary Company and has Board of Directors which consists of Chairman-cum- Managing Director, Director (personnel), Director (Finance), Director (Technical) etc. Director (Personnel) is complete incharge of all Personnel matters including appointment, promotion, transfer, welfare etc. 3. It is stated that the Director (Personnel) proposed for engagement of an employee on temporary basis to look after the Rest House at Jayanti Coal Mines. Shri B.K. Roy submitted an application on 7-10-1996 for employment to look after the job of Care Taker. On the direction and approval of Director (Personnel), Shri B.K. Roy was given contract work on a consolidated remuneration of Rs. 2500/- per month for a period of six months. The respondent being totally new to that area was required to work under the supervision and instructions of Director (Personnel). Any disobedience of such directions/instructions would have amounted to misconduct. The respondent merely complied with the instructions of the Director (Personnel) in the matter of engagement of Shri B.K. Roy on contract basis. Subsequently the respondent came to know that Shri B.K. Roy was brother of the then Director (Personnel). Director (Personnel) wrote a letter dated 18th March, 1997 approving engagement of Shri B.K. Roy for a further period of six months. Subsequently the respondent came to know that Shri B.K. Roy was brother of the then Director (Personnel). Director (Personnel) wrote a letter dated 18th March, 1997 approving engagement of Shri B.K. Roy for a further period of six months. On the basis of said direction, order dated 4th May, 1997 was issued by the respondent thereby extending the period of contract of Shri B.K. Roy for six months with a direction to complete all winding up operations of the said transit camp in as much as no further extension would be given thereafter. The respondent was transferred from the Giridih Area on 6th May, 1997. 4. It is further submitted that subsequently for the reasons best known to the officers concerned, Shri H.N. Jha, Staff Officer (P), Giridih Area moved for regularization of Shri B.K. Roy and Shri S.C. Khera, the then Chairman, C.C.L., Ranchi gave regular appointment in favour of Shri B.K. Roy. The respondent never recommended Shri B.K. Roy for regular appointment, nor did he issue any letter for regularization. The concerned authorities, at no stage considered the action of the respondent to be misconduct for violation of any law, rules or regulations whatsoever. 5. It is also submitted that a duly constituted Departmental Promotion Committee approved the promotion of the respondent to the post of Chief General Manager and he was promoted as such in the C.C.L. with effect from 13th November, 1997. The respondent submits that by virtue of his promotion as Chief General Manager, misconduct if any, would be deemed to have been waived of by the management. 6. It is stated that on 15th June, 2001 an F.I.R. was' lodged by the C.B.I. against the respondent, Shri S.C. Khera the then CMD, C.C.L. Ranchi, Dr. S.S. Roy the then Director (Personnel), Shri H.N. Jha, the then Staff Officer, C.C.L. and Shri B.K.Roy for alleged misuse of powers. The C.B.I. enquired into the matter and found that the action of the respondent was in the normal discharge of his duty as per direction of the Director (Personnel). The C.B.I. therefore, moved an application for giving pardon to the respondent. The Special Judge, C.B.I. Ranchi vide order dated 13th May, 2003 granted pardon to the respondent and made him approver. 7. It is further submitted that after the pardon granted by the C.B.I. as well as the Court, the respondent cannot be treated as an accused. The C.B.I. therefore, moved an application for giving pardon to the respondent. The Special Judge, C.B.I. Ranchi vide order dated 13th May, 2003 granted pardon to the respondent and made him approver. 7. It is further submitted that after the pardon granted by the C.B.I. as well as the Court, the respondent cannot be treated as an accused. It is also submitted that as per the Vigilance Manual of Central Vigilance Commission, which is applicable in the Company, during investigation if pardon is granted, then Central Vigilance Commission will send their recommendations regarding grant of immunity to such person from departmental action or punishment. The respondent is a senior officer of the Coal Industry; he was entitled for consideration as Director (Technical) and Chairman-cum Managing Director of Subsidiary Company. It is submitted that several junior officers were selected by the Public Enterprises Selection Board for being appointed as Director of Coal Industry, but the name of the respondent was not considered for selection and appointment as the Director/CMD because of the pendency of the case, even though he was totally innocent and acted according to the directions. 8. It is also submitted that the respondent received a chargesheet dated 26-3-2003 calling upon him to submit his reply as to why he should not be proceeded for the alleged misconduct. The writ petition was filed for quashing the alleged chargesheet dated 26-3-2003 and for further issuance of an appropriate writ or order holding that in view of the promotion as well as the pardon granted by the Court, the present respondent was entitled for appointment as Director. 9. The return was filed by the appellants raising an objection regarding the jurisdiction of the High Court. It was submitted that the Ranchi High Court had jurisdiction. It was contended that the disciplinary proceeding is the internal matter between the employer and its employee and the Court has no jurisdiction. It was further contended that no provision of law empowers the Court to stay departmental proceedings merely because criminal prosecution of the same person is launched in a Court of law. The purpose of two proceedings is quite different. It was further contended that no provision of law empowers the Court to stay departmental proceedings merely because criminal prosecution of the same person is launched in a Court of law. The purpose of two proceedings is quite different. While the object of departmental proceedings is to ascertain violation of duties and obligations cast upon an employee under various service conditions and action to be taken for such misconduct, criminal prosecution confines itself to only such criminal acts that are committed by an employee. Both of them operate in two distinct and different fields and as such can proceed simultaneously. The said engagement appointment of Shri RK. Roy by the respondent was irregular in fringing all the settled norms/policy of the Company. The contention of the respondent that the department waived the right of taking departmental action after giving him promotion to the post of Chief General Manager is misconceived and contrary to the conditions of service by which the respondent is governed. Merely promoting to the higher post does not waive or snatch away the right of the department to institute departmental proceedings against the employee for his past misconduct detected any time till his retirement. It is contended that since the Chief Vigilance Officer has not recommended to the Chief Vigilance Commission for grant of immunity to the respondent from departmental action or punishment, he is not entitled-for immunity. It was not the Director (Personnel) but the respondent himself proposed for engagement of an employee on temporary basis. The note sheet was personally carried to the Director (Personnel) Dr. S.S. Roy, where after the letter dated 6-9-1996 signed by the C.P.M./T.S. to Director (Personnel) was issued which contained the approval of engagement of one such person on adhoc basis. It was submitted that the respondent had committed misconduct. He kept the papers in his own custody without docketing and allowed Shri B.K. Roy to continue his service from 8-4-1997 to 3-5-1997 without any competent order. The order of extension was issued on 4-5-1997. It was also submitted that from the perusal of the imputation of the misconduct which has not yet been replied by the respondent, it would be evident that he had set forth all the grounds for converting the adhoc appointment of Shri B.K. Roy to regular appointment. 10. The order of extension was issued on 4-5-1997. It was also submitted that from the perusal of the imputation of the misconduct which has not yet been replied by the respondent, it would be evident that he had set forth all the grounds for converting the adhoc appointment of Shri B.K. Roy to regular appointment. 10. So far as preliminary objection raised by the appellants were concerned, they were not agitated, as has been mentioned in Para 13 of the judgment of the learned Writ Court. Even otherwise, the respondent was posted within the jurisdiction of this Court and the office of the appellant No. 1 is also at Bilaspur and in that view of the matter, the learned Writ Court overruled the objection. That has also not been challenged before us. 11. The Writ Court noted that on perusal of order dated 13-5-2003 passed by the learned Special Judge, C.RI. Ranchi, it appears that the respondent has been granted pardon on 13-5-2003 under Section 306 of the Cr.P.C. after taking his statement and in that order it has been mentioned that the respondent has given his statement supporting prosecution case and specifically stated that under the influence of the order of Shri S.S. Roy, the then Director of C.C.L., he had appointed Shri B.K. Roy, because he had pressurized him to appoint the said person, who happened to be his brother. The Writ Court further noted that the perusal of the letter dated 21-7-2003 written by the Superintendent of Police, C.B.I./A.C.B./Ranchi to the Chairman-cum-Managing Director, Central Coalfields Limited, Darbhanga House, Ranchi shows that the respondent has become the prosecution witness as he has become approver. 12. In the instant case, after hearing the learned counsel for the parties and considering the entire material on record, the Writ Court allowed the petition and held that continuance of departmental enquiry against the present respondent is unjust, unfair and oppressive action of the appellants for the reasons summarized as under : (i) That the pardon has already been granted to the petitioner in the criminal case and he has become the prosecution witness and the pardon has been granted to the petitioner on the ground that on the basis of his evidence offence against other main accused persons can be proved. The department cannot take two stands simultaneously i.e. on the one hand the petitioner will support the department in prosecution case for proving the offence against the main accused persons and on the other hand after taking this benefit the department also wants to proceed with the departmental enquiry against the petitioner. Therefore in this situation the department cannot be allowed to take two stands. (ii) The alleged action of the petitioner was committed in the year 1997 and it is not like that the respondents were not aware about the alleged action of the petitioner or that the alleged misconduct came to the notice of the respondents on a later stage. The respondents were sleeping for about 6 years and when the pardon has already been granted to the petitioner they cannot be permitted to continue with the disciplinary proceeding that too he has been singled out as against the other main persons involved in the matter no disciplinary enquiry has been initiated. The main person behind this episode appears to be Mr. S.S. Roy, but he has been allowed to retire peacefully without any stigma on his career without any departmental enquiry. (iii) The C.B.I. vide its letter dated 21-7-2003 has recommended to the Chairman-cum-Managing Director of the respondent/company that the disciplinary proceedings against Shri Shukla for the same charge does not seem to be in accordance with the basic tenets of law. This action of department at a belated stage seems to be initiated at the crucial stage of the career of the petitioner just to' debar the petitioner from consideration for promotion. (iv) Moreover the stand of the petitioner is clear-cut that being subordinate of Dr. S.S. Roy, he simply complied with the directions in appointing Shri B.K. Roy, brother of Dr. S.S. Roy. 13. Shri P.S. Nair, learned Senior counsel appearing for the appellants contended that the respondent had acted contrary to the instructions of Coal India Limited. It is further contended that for the appointment, though it was just for Rs. 2500/- per month, nevertheless care and caution required was not observed. 14. Shri V.K. Tankha, learned Senior counsel appearing for the respondent, on the other hand, supported the judgment of the Writ Court. Apart from this, learned Senior counsel laid much stress on the provisions of Section 306 Cr.P.C. and submitted that they have to be considered in right perspective. 2500/- per month, nevertheless care and caution required was not observed. 14. Shri V.K. Tankha, learned Senior counsel appearing for the respondent, on the other hand, supported the judgment of the Writ Court. Apart from this, learned Senior counsel laid much stress on the provisions of Section 306 Cr.P.C. and submitted that they have to be considered in right perspective. Learned counsel for the respondent further submitted that the alleged action of the respondent was committed in the year 1997 and the department almost for 6 years had not initiated any departmental action against him and after granting of the pardon to him by the Competent Court, the department is having no right to proceed against him on the basis of the charge sheet. Moreover, only the respondent has been singled out and no chargesheet has been issued to the persons facing prosecution. It is also submitted that the department has not challenged the grant of pardon. It is also submitted that where the pardon has been granted on one hand by the Courts and on the other hand it is opposed to the public policy, the very object cannot be frustrated like this. 15. Section 306 of Cr.P.C. is pertinent and is quoted below :- "306. Tender of pardon to accomplice - (1) With a view to obtaining the evidence of any person supposed to have been directly or indirectly concerned in or privy to an offence to which this section applies, the Chief Judicial Magistrate or a Metropolitan Magistrate at any stage of the investigation or inquiry into, or the trial of, the offence, and the Magistrate of the first class inquiring into or trying the offence, at any stage of the inquiry or trial, may tender a pardon to such person on condition of his making a full and true disclosure of the whole of the circumstances within his knowledge relative to the offence and to every other person concerned, whether as principal or abettor, in the commission thereof. (2) This section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (2) This section applies to- (a) any offence triable exclusively by the Court of Session or by the Court of a Special Judge appointed under the Criminal Law Amendment Act, 1952 (46 of 1952); (b) any offence punishable with imprisonment which may extend to seven years or with a more severe sentence. (3) Every magistrate who tenders a pardon under sub-section (1) shall record - (a) his reasons for so doing; ( b) whether the tender was or was not accepted by the person to whom it was made, and shall, on application made by the accused, furnish him with a copy of such record free of cost. (4) Every person accepting a tender of pardon made under subsection (I) - (a) shall be examined as a witness in the Court of the Magistrate taking cognizance of the offence and in the subsequent trial, if any; (b) shall, unless he is already on bail, be detained in custody until the termination of the trial. (5) Where a person has accepted a tender of pardon made under sub-section (1) and has been examined under sub-section (4), the Magistrate taking cognizance of the offence shall, without making any further inquiry in the case :- (a) commit if for trial - (i) to the Court of Session if the offence is triable exclusively by that Court or if the Magistrate taking cognizance is the Chief Judicial Magistrate; (ii) to a Court of Special Judge appointed under the, Criminal Law Amendment Act, 1952 (46 of 1952), if the offence is triable exclusively by that Court; (b) in any other case, make over the case to the Chief Judicial Magistrate who shall try the case himself." 16. The power to grant pardon is conferred on the Court. This is required to be accepted as well by the person. Grant and acceptance both are under the provisions of the Code of Criminal Procedure. It is granted on certain conditions and the person to whom it has been granted has to follow that. It is forfeited if the whole truth is not disclosed and if the person to whom the pardon has given may be tried for the offence pardoned. It is not an executive power. It is granted on certain conditions and the person to whom it has been granted has to follow that. It is forfeited if the whole truth is not disclosed and if the person to whom the pardon has given may be tried for the offence pardoned. It is not an executive power. In this context, it may be worthwhile to consider that action under Section 321 Cr.P.C. is a general executive discretion, subject however to the consent of the Court, whereas pardon under Sec. 306 Cr.P.C. is a judicial act. Nobody should interfere in judicial act and nothing should be done by any person or authority to frustrate this, except according to procedure established by law. 17. Learned counsel for the respondent placed reliance upon the judgment of the Apex Court in the case of A.J. Peiris Vs. State of Madras 1 , wherein the Apex Court has held as under: "......the moment the pardon was tendered to the accused, he must be presumed to have been discharged where upon he ceased to be an accused and became a witness. It could not therefore be said that before tendering the pardon to him he had not been discharged and consequently his evidence as an approver was not legally admissible." 18. Learned counsel for the respondent placed further reliance upon the judgment of the Apex Court in the case of Capt. M Paul Anthony Vs. Bharat Gold Mines Limited and Another, wherein the Apex Court has held as under : "On joining government service, a person does not mortgage or barter away his past rights as a human being, including his fundamental rights, in favour of the Government. The Government, only because it has the power to appoint, does not become master of the body and soul of the employee. The Government by providing job opportunities to its citizens only fulfils its obligations under the Constitution, including the Directive Principles of State Policy. The employee on taking up an employment only agrees to subject himself to the regulatory measures concerning his service. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc. is regulated by the terms of contract of service or service rules made by the Central or the State Government under proviso to Article 309 of the Constitution or other statutory rules including certified Standing Orders. His association with the Government or any other employer, like instrumentalities of the Government or statutory or autonomous corporations, etc. is regulated by the terms of contract of service or service rules made by the Central or the State Government under proviso to Article 309 of the Constitution or other statutory rules including certified Standing Orders. The fundamental rights, including the Right to Life under Article 21 of the Constitution or the basic human rights are not surrendered by the employee." 19. Learned counsel for the respondent also placed reliance upon the judgment of the Apex Court in the case of State of Madhya Pradesh Vs. Bani Singh and Another, wherein the Apex Court has held as under: "The disciplinary proceedings - delay and laches - department aware of involvement of officer in alleged irregularities - no satisfactory explanation for inordinate delay in issuing the charge memo - disciplinary proceedings initiated against him after more than 12 years -liable to be quashed." 20. Learned counsel for the respondent also submitted that when the pardon has been granted and the same has been accepted by the employer, nothing should be done to frustrate the same. It is submitted that nothing at least should be done till the trial is over, because ultimately the person has to get a certificate under Section 308 Cr.P.C. from the prosecutor. 21. Section 308 of Cr.P.C. is pertinent and is quoted below: "308. Trial of person not complying with conditions of pardon (1) Where, in regard to a person who has accepted a tender of pardon made under section 306 or section 307, the Public Prosecutor certifies that in his opinion such person has, either by willfully concealing anything essential or by giving false evidence not complied with the condition on which the tender was made, such person may be tried for the offence in respect of which the pardon was so tendered for any other offence of which he appears to have been guilty in connection with the same matter, and also for the offence of giving false evidence: Provided that such person shall not be tried jointly with any of the other accused : Provided further that such person shall not be tried for the offence of giving false evidence with the sanction of the High Court, and nothing contained in section 195 or section 340 shall apply to that offence. (2) Any statement made by such person accepting the tender of pardon and recorded by a Magistrate under section 164 or by a Court under sub-section (4) of section 306 may be given in evidence against him at such trial. (3) At such trial, the accused shall be entitled to plead that he has complied with the condition upon which such tender was made; in which case it shall be for the prosecution to prove that the condition has not been complied with. ( 4) At such trial, the Court shall - (a) if it is a Court of Session, before the charge is read out and explained to the accused; (b) if it is the Court of a Magistrate, before the evidence of the witnesses for the prosecution is taken, ask the accused whether he pleads that he has complied with the conditions on which the tender of the pardon was made. (5) It the accused does so plead, the Court shall record the plea and proceed with the trial and it shall, before passing judgment in the case, find whether or not the accused has complied with the conditions of the pardon, and, if it finds that he has so complied, it shall, notwithstanding anything contained in this Code, pass judgment of acquittal. " On a plain reading of Section 308 Cr.P.C., it is evidently clear that the certificate of the Public Prosecutor that the conditions of the pardon have been broken is an essential requisite and the sole basis of prosecution of an approver. He cannot be tried simply because of the statement of the Magistrate that the Public Prosecutor agreed with him. Certificate filed after commitment and before trial is an irregularity. 22. Learned counsel for the respondent further submitted that action of the authority to initiate departmental proceedings in a case where pardon has been granted is opposed to the public policy. What is 'public policy' is defined by the Apex Court in the case of Gherulal Parakh Vs. Mahadeodas Maiya and Others4, which reads as under: "Public policy or the policy of the law is an illusive concept; it has been described as 'un trust worthy guide', 'variable quality', 'uncertain one', 'unruly horse', etc. What is 'public policy' is defined by the Apex Court in the case of Gherulal Parakh Vs. Mahadeodas Maiya and Others4, which reads as under: "Public policy or the policy of the law is an illusive concept; it has been described as 'un trust worthy guide', 'variable quality', 'uncertain one', 'unruly horse', etc. The primary duty of a Court of Law is to enforce a promise which the parties have made and to uphold the sanctity of contracts which form the basis of society, but in certain cases, the Court may relieve them of their duty on a rule founded on public policy; the doctrine of public policy is extended not only to harmful cases but also to harmful tendencies; this doctrine of public policy is only a branch of common law, and, just like any other branch of common law, it is governed by precedents; the principles have been crystallized under different heads and though it is permissible for Courts to expound and apply them to different situations, it should only be invoked in clear and incontestable cases of harm to the public; though the heads are not closed and though theoretically it may be permissible to evolve a new head under exceptional circumstances of a changing world, it is advisable in the interest of stability of society not to make any attempt to discover new heads in these days." 23. In the case of Central Inland water Transport Corporation Ltd. and Another Vs. Brojonath Ganguly and Another, the expression 'public policy' or 'opposed to public policy' was considered and held as under: "Contract Act does not define the expression 'public policy' or 'opposed to public'. From the very nature of things, the expressions 'public policy', 'opposed to public policy', or 'contrary to public policy' are incapable of precise definition. Public Policy, however, is not the policy of a particular Government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. Public Policy, however, is not the policy of a particular Government. It connotes some matter which concerns the public good and the public interest. The concept of what is for the public good or in the public interest or what would be injurious or harmful to the public good or the public interest has varied from time to time. As new concepts take the place of old, transactions which were once considered against public policy are now being upheld by the Courts and similarly where there has been a well recognized head of public policy, the Courts have not shirked from extending it to new transactions and changed circumstances and have at times not even flinched from inventing a new head of public policy. Practices which were considered perfectly normal at one time have today become obnoxious and oppressive to public conscience. If there is no head of public policy conscience. If there is no head of public policy which covers a case, then the Court must in consonance with public conscience and in keeping with public good and public interest declare such practice to be opposed to public policy. Above all, in deciding any case which may not be covered by authority Courts have before them the beacon light of the Preamble to the Constitution. Lacking precedent, the Court can always be guided by that light and the principles underlying the Fundamental Rights and the Directive Principles enshrined, in the Constitution. " 24. So far as the submission that where the pardon has been granted on one hand by the Courts and on the other hand it is taken otherwise than judicial process is opposed to the public policy as the very object gets frustrated, is concerned, the Apex Court in the case of Renusagar Power Co. Ltd. Vs. General Electric Co.6, has held as under: "It is the fundamental principle of law that orders of the Courts must be complied with for any action which involves disregard for such orders would adversely affect the administration of justice and would be destructive of the rule of law and would be contrary to public policy." 25. Ltd. Vs. General Electric Co.6, has held as under: "It is the fundamental principle of law that orders of the Courts must be complied with for any action which involves disregard for such orders would adversely affect the administration of justice and would be destructive of the rule of law and would be contrary to public policy." 25. In view of the discussions made hereinabove, under the special facts and circumstances of the case and material on record, we are of the opinion that the order passed by the writ court quashing the chargesheet does not require any interference by this Court in this appeal. 26. The appeal fails and is dismissed. However, there shall be no order as to costs. Appeal Dismissed.