Research › Search › Judgment

Orissa High Court · body

2006 DIGILAW 291 (ORI)

Sambit Patnaik v. Coal India Ltd.

2006-04-12

A.K.SAMANTARAY, B.P.DAS

body2006
JUDGMENT A. K. SAMANTARAY, J. — In this writ petition under Articles 226 and 227 of the Constitution of India, the petitioner assails the communication dated 3.11.2001 issued by the Deputy Chief Personnel Manager, Mahanadi Coal Fields Ltd., (O.P. No.5) (here¬inafter referred to as ‘M.C.L.’) intimating therein regarding non-consideration of his promotion from E-3 to E-4 grade on the ground of pendency of a vigilance case and has prayed for a direction to the opposite parties to issue promotion order in his favour from the date, i.e. 19.12.2000 on which date his counter¬parts have been promoted and he has further made a prayer for consequential benefits. 2. The brief facts leading to filing of this writ peti¬tion by the petitioner is stated as follows : The petitioner was initially appointed under the opposite parties on 6.4.1990 and has been performing his duties under the opposite parties without any adverse remarks and blemish. During the course of his service, the petitioner was promoted from E-1 to E-2 grade on 6.4.1991 and subsequently, he was promoted from E-2 to E-3 grade on 3.8.1994. Chapter-IV of the Common Coal Cadre prescribes the procedure for promotion of the employees of the opposite parties and the said Chapter specifically provides the manner of promotion from one grade to another in terms of recom¬mendation of the Departmental Promotion Committee. Sub-clause-II of Clause 4.8 under same Chapter specifically provides that in case of promotion beyond E-3 grade the criteria for promotion would be merit-cum-seniority. Sub-clause (b) of Clause 4.13 prescribes as follows :- “before issuing promotion order on the basis of the recommendation of appropriate Departmental Promotion Committee,clearance from the Vigilance Department of the concerned Company should be obtained. In case of executive has served for more than two Companies during the period of last five years, a clearance from the Vigilance Department of the Companies where the employee had worked previously should be obtained before issue of promotion order.” 3. A bare perusal of the provisions contained under the Common Coal Cadre regarding the procedure of promotion nowhere it is prescribed regarding non-consideration of the promotion of an Officer/Executive on the ground of pendency of vigilance case. The Office Memorandum dated 8.1.1981 issued by the Chairman-cum-Managing Director, Eastern Coal Fields Ltd., has prescribed the stipulation regarding Vigilance clearance of the employees. The Office Memorandum dated 8.1.1981 issued by the Chairman-cum-Managing Director, Eastern Coal Fields Ltd., has prescribed the stipulation regarding Vigilance clearance of the employees. A copy of the memorandum is annexed to the writ petition as Annex¬ure-2, which stipulates as to where the Vigilance clearance shall not be withheld, and also stipulates cases where vigilance clear¬ance shall be withheld. The stipulations contained in the said Annexure-2 are quoted below. “Vigilance clearance shall not be withheld for the mere fact that a P.E. or R.C. has been registered by the C.B.I. against an officer or that complaints are being looked into in a preliminary enquiry departmentally but no conclusion has been reached about the prima facie guilt of the officer.” Vigilance clearance shall be withheld only when:- (1) In case of a Preliminary Enquiry, either by the C.B.I. or departmental agencies, the competent authority, on considera¬tion of the results of investigation, has formed the opinion that a charge sheet may be issued on specific imputations for depart¬mental action, and (2) In case of a regular case, the competent authority has decided to accord sanction for prosecution of the Officer in Court. Until the competent authority arrives at such a conclusion, the Officer may be treated at par with others in the matter of promotion, confirmation etc. 4. The petitioner in E-3 grade was placed in Sl. No.181, in the global seniority list (Annexure-3) and above him in Sl. Nos. 179, 180 and 181 were Sri B. K. Jha, P. K. Sahani and Saty¬endra Singh placed respectively. In the month of November, 2000 a Departmental Promotion Committee in terms of Common Cadre was held and in the said D.P.C. the case of the petitioner along with similarly situated persons was favourably considered by the authorities and on 17.1.2001, the promotion orders in respect of the said Sri B. K. Jha, P. K. Sahani and Satyendra Singh to E-4 grade were issued, whereas the petitioner was deprived of such promotion (Annexure-4). The petitioner coming to know this, submitted series of representations to the opposite parties, vide Annexure-5 series and he was intimated that his case for promo¬tion to E-4 grade was not considered by the authorities on the ground of pendency of vigilance case. The petitioner coming to know this, submitted series of representations to the opposite parties, vide Annexure-5 series and he was intimated that his case for promo¬tion to E-4 grade was not considered by the authorities on the ground of pendency of vigilance case. The Coal India Ltd., subse¬quently clarified in its letter dated 5.6.2002, the position that vigilance clearance of an officer can be withheld if :- (i) He is under suspension, (ii) He has been issued with a charge sheet, (iii) He is facing a Criminal Prosecution. Accordingly, the O.P. No.1 was directed to review all cases for promotion where no charge sheet has been filed. A copy of such letter dated 5.6.2002 has been annexed as Annexure-6. 5. It is further asserted by the petitioner that mere pendency of a vigilance case is not a ground to ignore his promo¬tion to a higher grade in view of the provisions contained in Annexure-2 and the Common Coal Cadre and those provisions envis¬age a situation for withholding promotion only when the authori¬ties are prima facie satisfied in a specific imputation/imputa¬tions for departmental action and the authorities are to be satisfied that a triable case has been made out against the petitioner which can only happen after the petitioner was given an opportunity of showing cause and further more in case, the authority appoints an Enquiry Officer after such show cause. It is the case of the petitioner that withholding of his promotion before such a situation is quite premature and prejudged. In the writ petition, the petitioner has termed his non-promotion to E-4 grade while promoting similarly situated persons, as illegal, arbitrary and discriminatory and as such, violative of Article-14 of the Constitution of India. 6. A counter affidavit has been filed by the opposite parties contending therein that as per Clause 4.13 of Chapter-IV of Common Coal Cadre for promotion to next higher grade an em¬ployee must be clear from vigilance angle and in the instant case, the petitioner was not cleared from vigilance angle. It is stated in the counter affidavit that as per existing rules as contained in Sub-para (b) of the Para 4.13 of Common Coal Cadre, before issuing promotion orders on the basis of the recommenda¬tions of appropriate Departmental Promotion Committee, clearance from the Vigilance Department of the concerned Company is to be obtained. It is stated in the counter affidavit that as per existing rules as contained in Sub-para (b) of the Para 4.13 of Common Coal Cadre, before issuing promotion orders on the basis of the recommenda¬tions of appropriate Departmental Promotion Committee, clearance from the Vigilance Department of the concerned Company is to be obtained. It has been further clarified in this connection that an Executive should be cleared from disciplinary action point of view including vigilance on the date of release of promotion order. In the said counter affidavit at paragraph-11, it has been candidly admitted by the opposite parties that the D.P.C. meeting was held on 9.11.2000 and amongst other, the name of the peti¬tioner was recommended for promotion and basing on the said recommendation of the D.P.C. duly approved by the competent authority batch mates of the petitioner were promoted to E-4 grade, vide Coal India Limited order dated 19.12.2000. But, however, the order of promotion in respect of the petitioner was withheld since he was not clear from vigilance angle as per provisions contained in Chapter-IV-2 (d) Common Coal Cadre. In paragraph 6 of the counter, it is stated that the appropriate authorities including Chairman, Coal India, Central Vigilance Commission and C.M.D., M.C.L. approved initiation of Departmental Proceeding against the petitioner and the petitioner was charge sheeted and the hearing of the Departmental Proceeding has been completed and the petitioner has been awarded with a punishment of reduction of pay by one stage for a period of one year without cumulative effect, vide order No.819 dated 16.6.2003, (M.D.) M.C.L. (Vide Annexure-A/1). In paragraph-8 of the counter, it is admitted in clear terms that the petitioner was issued with a memorandum by C.M.D., M.L.C., vide No. MCL /SBP /Vig/CMD/RDA/ 07/2000/6791 dated 13.6.2002 under Clause-29 of C.D.A. Rules (amended up to April, 2000), an Enquiring Authority was appointed on 12.8.2002 and hearing of the Departmental Proceeding was completed and the petitioner was awarded with a punishment as stated above. 7. The petitioner in response to the counter affidavit by the opposite parties has filed a rejoinder affidavit incorporat¬ing therein some subsequent developments during the pendency of the writ petition and has stated that the petitioner had chal¬lenged initially Annexure-1, the order dated 3.11.2001 refusing to consider his case for promotion from E-3 to E-4 grade by the authorities because of pendency of vigilance case. It is his specific case that mere pendency of vigilance case cannot be an impediment in the matter of consideration of his promotion until charge sheet was filed as clarified by the subsequent communica¬tion, Annexure-6. It is further stated that the impugned action of the opposite parties is illegal on the face of very admission of the opposite parties in paragraph-8 of the counter affidavit that charge sheet was issued on 13.6.2002 and as such at the time of consideration of the petitioner’s promotion from E-3 to E-4 grade in November/December, 2000, there was no charge sheet placed against him. It is stated by him that when filing of charge sheet was clarified by the M.C.L. to be imperative for non-consideration under Annexure-6 dated 5.6.2002, the petitioner immediately represented on 6.6.2002 under his representation, vide Annexure-7, for consideration of his promotion. But the authorities in order to deprive him of his promotion issued the charge sheet on 13.6.2002 without considering his representation (Annexure-7) and thereby frustrated intentionally the genuine claim of the petitioner. The petitioner has stated that he has been promoted from E-3 to E-4 grade prospectively, vide order dated 4.10.2004, which is annexed to as Annexure-8 and he has also joined on the said date. Ultimately, he has claimed that he should have been considered for promotion with effect from December, 2000 when admittedly there was no charge sheet filed against him and his claim still survives and deserves considera¬tion as because in the meantime, the incumbents who were promoted from E-3 to E-4 grade in December, 2000, when his case was ignored, have now been promoted to E-5 grade by the order dated 27.9.2004 (Annexure-10). 8. Learned counsel for the petitioner pursuing his point contended that Annexure-2, the Office Memorandum dated 8.1.1981 categorically stipulates that vigilance clearance shall not be withheld for the mere fact that a P.E. or R.C. has been regis¬tered by the C.B.I. against an Officer or that complaints are being looked into in a preliminary enquiry departmentally, but no conclusion has been reached about the prima facie guilt of the Officer. Adverting to the case of the petitioner and referring to paragraph-11 of the counter affidavit of the opposite parties, he submitted that there is categorical mention in the said paragraph that the D.P.C. was held on 9th & 10th of November, 2000 and amongst others, the name of the petitioner was recommended for promotion and on the said recommendation of the D.P.C. duly approved by the competent authority the batch mates of the peti¬tioner were promoted to E-4 grade vide Coal India Ltd., order dated 19.12.2000. It is stated in the said paragraph that the order of promotion in respect of the petitioner was held up since he was not clear from vigilance angle as per Annexure-IV-2(d) Common Coal Cadre. We have reproduced the stipulations relating to withholding of vigilance clearance and the petitioner’s case is not covered under any of the stipulations. The learned counsel for the petitioner contended with reference to Annexure-2 and argued that out of two stipulations concerning withholding of vigilance clearance, the opposite parties have perhaps resorted to Clause-1 wherein, it has been stated that in case of a prelim¬inary enquiry, either by the C.B.I. or departmental agencies, the competent authority on consideration of the result of investiga¬tion, has formed the opinion that a charge sheet may be issued on specific imputation for departmental action. Pursuing his case, the learned counsel took us to paragraph-8 of the counter affida¬vit of the opposite parties where it is stated that the petition¬er was already issued with a memorandum by the C.M.D., M.C.L., vide No. MCL/SBP/Vig/CMD/RDA/07/2000/6791 dated 13.6.2002 under Clause-29 of C.D.A. Rules and the Enquiring Authority was ap¬pointed on 12.8.2002. The consideration of promotion of the petitioner admittedly, was by the D.P.C. on 9th and 10th Novem¬ber, 2000 and admittedly, charge sheet was issued to the peti¬tioner on 13.6.2002, i.e., one and half year thereafter. From the aforesaid factual position, it is crystal clear that one and half year after the D.P.C. in which the batch mates of the petitioner in Sl. Nos. From the aforesaid factual position, it is crystal clear that one and half year after the D.P.C. in which the batch mates of the petitioner in Sl. Nos. 179 and 180 and 181 were recommended for promotion, charge sheet was issued and at the relevant time the preliminary enquiry initiated against the petitioner was at its initial stage and the result of the enquiry or investigation by the departmen¬tal agencies or by the C.B.I. as the case may be, was not avail¬able to the competent authority so as to form opinion that a charge sheet might be issued to the petitioner. 9. The learned counsel for the petitioner referring to the decision of the Apex Court reported in AIR 1991 SC 2010 , Union of India etc. etc. -vs- K. V. Janki Raman, etc. etc., submitted that at paragraph-6, the Hon’ble Apex Court have set the guidelines in case of similar nature and held as under :- “The promotion etc., cannot be withheld, merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee.” 10. In the instant case of the petitioner admittedly, there was no charge sheet or charge memo against the petitioner when his case was considered by the D.P.C. and he was recommended for promotion by the D.P.C. We need not reiterate that the same was not given effect to as because he was not clear from vigilance angle according to the opposite parties. Learned counsel for the petitioner argued with vehemence that the action of the opposite parties in withholding the promotion of the petitioner is not only illegal but also contrary to the observation of the Hon’ble Apex Court in Janki Raman Case (supra). He continued and submit¬ted that Annexure-2, the Office Memorandum dated 8.1.1981 stipu¬lating the circumstances under which the vigilance clearance was not to be issued has been modified in Coal India Office Memoran¬dum dated 14.5.2002 (Annexure-6) clarifying the grounds where vigilance clearance shall be withheld. 11. This modification has been effected as per the guide¬lines of the Hon’ble Supreme Court in Janki Raman Case (supra) and the said guidelines are as follows - (a) When an officer is under suspension. 11. This modification has been effected as per the guide¬lines of the Hon’ble Supreme Court in Janki Raman Case (supra) and the said guidelines are as follows - (a) When an officer is under suspension. (b) When an officer in respect of whom a charge sheet has been issued and the disciplinary proceedings are pending, and (c) When an officer in respect of whom prosecution for a Crimi¬nal Charge is pending. 12. Learned counsel for the petitioner contended that he Coal India (Opposite parties) realizing the illegality/improprie¬ty they used to perpetrate in the matter of withholding of vigi¬lance clearance, modified the stipulations in Annexure-2, the earlier Office Memorandum. The Hon’ble Apex Court as far back in 1991 set guidelines in Janki Ramam case holding that the promo¬tion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the em¬ployee. To deny the said benefit, they must be at the relevant time pending at the stage when charge memo/charge sheet has already been issued to the employee. 13. We have carefully examined the factual position of the case of the petitioner and admittedly when his promotion was considered by the D.P.C. and he was recommended by the D.P.C. for promotion, to the authorities, the authorities on the sole ground that he was not clear from vigilance angle withheld his promo¬tion. The petitioner has challenged Annexure-1; the communication dated 3.11.2001 which was made to him when he represented to the opposite parties, vide representation dated 25.9.2001, for his promotion. In the said Annexure-1, which is a two-line communica¬tion to the petitioner by the Deputy Chief Personnel Manager, M.C.L., it has been intimated that his promotion from E-3 to E-4 grade is not being considered at present due to vigilance case pending against him. We have found that when the case of the petitioner was considered in the month of November/December, 2000, there was no vigilance case or departmental proceeding pending against him, he was neither under suspension nor any prosecution for criminal charge was pending. We have found that when the case of the petitioner was considered in the month of November/December, 2000, there was no vigilance case or departmental proceeding pending against him, he was neither under suspension nor any prosecution for criminal charge was pending. In such circum¬stance, in the light of the guideline enunciated by the Hon’ble Apex Court in Janki Raman Case, vigilance clearance could not have been denied, nor the promotion of the petitioner from E-3 to E-4 grade could have been withheld on that sole ground.It is not disputed that the charge memo was issued to the petitioner on 13.6.2002, which culminated from the preliminary enquiry, which was at its very initial stage, when the promotion of the peti¬tioner was withheld for want of vigilance clearance. There was neither any charge sheet nor case pending against the petitioner in any Criminal Court by then. 14. In the aforesaid premises, the communication (Annexure-1) which is assailed by the petitioner in this writ petition does not prove the true and real picture of the circumstances and the stand of the opposite parties as reflected that the petitioner’s case was not considered due to vigilance case pending against him is wholly untenable and indefensible. 15. Learned counsel appearing for the opposite parties simply reiterated the stand taken in the counter filed, but could not refute the factual and legal position put forth by the learned counsel for the petitioner. He however, submitted that in the meantime the petitioner has already been promoted to E-4 grade after finalisation of the departmental proceeding and as such, he has already got the benefit which he has claimed in this writ petition and that there subsists no cause of action to entertain this writ petition. We are unable to accept the conten¬tions advanced, as the petitioner has claimed his promotion from E-3 to E-4 grade with effect from 19.12.2000 on which date his batchmates in Sl.Nos. 179, 180 and 181 in the global seniority list, namely, Shri B. K. Jha, P. K. Sahani and Satyendra Singh, who were just above him were promoted and he though was recom¬mended by the D.P.C. was not considered for promotion by the authorities on the ground of non-clearance of his case from the vigilance angle. 16. In the result, therefore, we allow this writ petition and consequently, quash the impugned order, i.e., communication dated 3.11.2001 as per Annexure-1. 16. In the result, therefore, we allow this writ petition and consequently, quash the impugned order, i.e., communication dated 3.11.2001 as per Annexure-1. It is directed that a writ of mandamus be issued commanding opposite parties 1 to 5 to promote the petitioner from E-3 to E-4 grade with effect from 19.12.2000 with all consequential entitlements and benefits that accrue in his favour on account of such promotion. The entire exercise be completed within three months from the date of receipt of the writ. The writ be communicated to the opposite parties at the expense of the petitioner. We, however, make no order as to costs. The writ petition is accordingly disposed of. B. P. DAS, J. I agree. Petition disposed of.