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2008 DIGILAW 441 (ORI)

Ram Binay Sharma v. Chairman, Coal India Ltd.

2008-06-17

B.P.DAS, M.M.DAS

body2008
JUDGMENT B. P. DAS, J. — The petitioner has filed this writ petition with a prayer to quash the order dated 30th of March, 2007 issued by the Chief General Manager (Personnel) of the Coal India Ltd. cancelling his promotion to the post of Chief General Manager (Mining) in M-3 Grade, vide Annexure-3 and further to allow him to continue in the promotional post as before. 2. The brief facts leading to this writ petition are as follows: The petitioner after being qualified as a Mining Engineer joined the Coal India Ltd. (CIL) as a Junior Executive Trainee. In course of his service, he was promoted to different posts and was ultimately promoted to the post of Chief Mining Engineer in M-2 Grade and was posted as General Manager, Lingaraj Area, Talcher, under Mahanadi Coalfields Ltd. (MCL), which is a subsid¬iary of CIL. While working as such, a Departmental Proceeding was drawn up against him for the alleged misconduct during his incum¬bency as Project Officer, Kedia Open Cast Project of Central Coal Fields Ltd., another subsidiary of CIL, for unauthorized occupa¬tion of Vocational Training Centre of Kedla Open Cast Project of CCL by one Rungta Transport Company. In that proceeding, the Chairman-cum-Managing Director of Central Coal Fields Ltd. passed an order dated 18.1.2007 imposing minor penalty of ‘censure’ as at the relevant time pertaining to the charge the petitioner was working under the Central Coal Fields Limited, which is another subsidi¬ary Company of CIL. It is alleged that the aforesaid order impos¬ing minor penalty of ‘censure’ was passed without giving any opportunity of hearing to the petitioner. Against the aforesaid penalty of ‘censure’, the petitioner preferred an appeal before the appellate authority and the same was pending disposal on the date of filing of the writ petition and during pendency of the appeal, the petitioner was considered for promotion to the post of Chief General Manager (Mining) in M-3 Grade and along with four others he was promoted to the said post of Chief General Manager (Mining) in M-3 Grade by order dated 6.3.2007 (Annexure-1) and his name was at Sl. No.3 of the promotion order. The aforesaid order clearly indicated that the promotion was subject to the result of certain writ applications pending before differ¬ent High Courts including this Court. No.3 of the promotion order. The aforesaid order clearly indicated that the promotion was subject to the result of certain writ applications pending before differ¬ent High Courts including this Court. According to the petition¬er, pursuant to the order of promotion dated 6.3.2007, he assumed the charge of Chief General Manager (Mining) in M-3 Grade with effect from the said date and the charge assumption report was duly countersigned by the Chairman-cum-Managing Director on 9.3.2007, vide Annexure-2. While continuing as such, the Chief General Manager (Personnel) of the CIL by order dated 30.3.2007 directed to treat the said order of promotion as cancelled on the ground that the petitioner had been imposed minor penalty of ‘censure’ vide order dated 18.1.2007 passed by the Chairman-cum-Managing Director (CMD) of Central Coalfields Ltd. (CCL). Accord¬ing to the petitioner, after perusal of all records including the order of minor punishment of ‘censure’, the authorities decided that the petitioner was eligible for promotion to the next higher post and recommended for promotion and the petitioner in fact on such recommendation was promoted to the post of Chief General Manager (Mining) in M-3 Grade. The same authorities therefore cannot fall back and cancel the order of promotion on 30th March, 2007 solely on the ground of minor punishment of ‘censure’ in¬flicted on the petitioner. 3. A counter affidavit has been filed by O.P. Nos.1 to 4, i.e., the CIL and its authorities indicating therein that while the petitioner was posted as General Manager, Lingaraj Area, (MCL) in M-2 Grade was issued Memorandum of Charges dated 17.10.2005 by the CMD of CCL, i.e., the Disciplinary Authority, under Rule 31 (Procedure for imposing minor penalties) of the Coal India Executives Conduct, Discipline and Appeals Rules, 1978 (in short the Rules) for the alleged misconduct committed while posted as Project Officer, Kedla OCP of CCL during the period from July, 1998 to April, 2001. In the Disciplinary Proceeding, the minor penalty of ‘censure’ was imposed on the petitioner and the same was communicated by the CMD, CCL to the petitioner vide order dated 18.1.2007. The Departmental Promotion Committee (in short DPC) constituted by the CIL for promotion from M-2 to M-3 Grade met on 6.1.2007, 8.1.2007, 19.2.2007, 20.2.2007 and 21.2.2007 for interviewing the candidates and the petitioner was called upon to appear before the DPC for interview on 20.2.2007. The Departmental Promotion Committee (in short DPC) constituted by the CIL for promotion from M-2 to M-3 Grade met on 6.1.2007, 8.1.2007, 19.2.2007, 20.2.2007 and 21.2.2007 for interviewing the candidates and the petitioner was called upon to appear before the DPC for interview on 20.2.2007. The Memorandum of Charges dated 17.10.2005 and the award of minor penalty of ‘censure’ dated 18.1.2007 of the CMD, CCL was not placed before the DPC on 20.2.2007 and the petitioner was recom¬mended by the DPC for promotion from M-2 Grade to M-3 Grade. According to the O.Ps., as the existing norms incorporated in the Common Coal Cadre, Vigilance Clearance, Departmental Clearance and Safety Clearance are being obtained for the preceding five years of posting of an executive from different Companies. Since the petitioner had been posted in MCL for the preceding five years, status of clearance had been obtained from MCL only as per the prevailing norms. On the basis of Vigilance Clearance, De¬partmental Clearance and Safety Clearance from MCL dated 5.12.2006, the petitioner was promoted to the post of Chief General Manager (Mining) in M-3 Grade vide order dated 6.3.2007. It has been further stated in the counter affidavit that the pendency of the above Memorandum of Charges dated 17.10.2005 was not intimated by the MCL while sending the Vigilance Clearance, Departmental Clearance and Safety Clearance. The CIL on receipt of information regarding the Memorandum of Charges dated 17.10.2005 and the award of minor penalty of ‘censure’ dated 18.1.2007 by the CMD, CCL, the Personnel Manager (EE), CIL sub¬mitted a Note Sheet on 27.3.2007 for cancellation of promotion of the petitioner in terms of Office Memorandum No.1334 dated 19/27.6.1979 to the Chief General Manager (Personnel) who in his turn placed the matter before the CMD, CIL on 29.3.2007. The CMD, CIL, the competent authority, on 29.3.2007 approved the cancella¬tion of promotion of the petitioner, pursuant to which the order dated 30.3.2007 was issued by the Chief General Manager (Person¬nel), CIL, cancelling the promotion of the petitioner from M-2 Grade to M-3 Grade. It is further alleged that the order dated 30.3.2007 was not issued to the petitioner but he collected a copy of the same from Shri M.S. Prasad, Technical Secretary to Director (Personnel) on 2.4.2007 and filed the same before this Court as Annexure-3. According to the O.Ps., this writ petition was filed on 2.4.2007. It is further alleged that the order dated 30.3.2007 was not issued to the petitioner but he collected a copy of the same from Shri M.S. Prasad, Technical Secretary to Director (Personnel) on 2.4.2007 and filed the same before this Court as Annexure-3. According to the O.Ps., this writ petition was filed on 2.4.2007. So since the petitioner was aware of the order of cancellation of his promotion on 2.4.2007, the interim order passed by this Court on 5.4.2007 relying on the statement of the petitioner that he was still discharging the duties in the promotional post of Chief General Manager (Mining) in M-3 Grade and that the order of cancellation of promotion had not been given effect to has no effect as by then the order of promotion had already been cancelled. It was argued that the order of cancellation of promotion dated 30.3.2007 became effective upon communication of such order to the officer concerned and as the said order was collected and writ petition was filed on 2.4.2007, the same was effective from 2.4.2007, i.e., the date on which the order of cancellation of promotion was collected/received by the petitioner. It was further stated that after cancellation of the order of promotion, the petitioner was placed in M-2 Grade on and from 2.4.2007, which can be construed to be the date of communication of the order. Hence it is stated that the promotion was given by mistake and the petitioner was not eligible to be considered for promotion from M-2 to M-3 Grade because prior to the sitting of the DPC, the petitioner was awarded punishment of ‘censure’. According to the O.Ps., as the petitioner’s case was considered by mistake, the O.Ps. have rectified their mistake by cancelling the order of promotion, which had been wrongly issued for which the petitioner is not entitled to any relief from this Court. 4. The undisputed fact is that the petitioner was censured in a Disciplinary Proceeding and the penalty imposed is a minor one. Further, prior to consideration of the case of the petition¬er to the next higher grade, i.e., Grade 3, by the DPC, the minor penalty had already been imposed but the same was not brought to the notice of the DPC. Further, prior to consideration of the case of the petition¬er to the next higher grade, i.e., Grade 3, by the DPC, the minor penalty had already been imposed but the same was not brought to the notice of the DPC. Admittedly, neither any notice to show cause was issued nor any enquiry was conducted giving adequate opportunity to the petitioner to explain and to be heard, before issuing the impugned order of cancellation of his promotion, which visits the petitioner with civil consequence as the order amounts to reversion of the petitioner to a lower post/grade, at least a notice to the employee was required to be given, for compliance of the rules of natural justice. Mr. Roy, learned counsel for the petitioner, in this regard referred to a decision of the apex Court in the case of Basudeo Tiwary v. Sido Kanhu University and others, 1998 (5) Scale, and submitted that the order of promotion has been cancelled unilaterally affecting the right of the employee which is not just, fair and reasonable. According to the learned counsel for the petitioner, before passing the order, cancelling the promotion of the petitioner, the requirement of an opportunity of hearing was to be adhered to. He further relied upon the decision of the apex Court in the case of Shekhar Ghosh v. Union of India and another, 2007 (1) Supreme 860, wherein it was held that the principles of natural justice are required to be complied with even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences. The sum and substance of the argument of Mr. Roy is that once an order of promotion has been passed, the same cannot be cancelled without giving the petitioner an opportunity of hearing. On the contrary, Mr. Sanjit Mohanty, learned counsel for the O.Ps. relied upon the judgment of the apex Court reported in AIR 1999 SC 2583 (M.C. Mehta v. Union of India and others) which after referring to S.L. Kapoor v. Jagmo¬han ( AIR 1981 SC 136 ) held that if on the admitted or indisputa¬ble factual position, only one conclusion is possible and permis¬sible, the Court need not issue a writ merely because there is violation of principles of natural justice. He further submitted that the aforesaid principle has been followed in cases of Ali¬garh Muslim University v. Mansoor Ali Khan ( AIR 2000 SC 2783 ); Canara Bank v. V.K. Awasthy ( AIR 2005 SC 2090 ) and Mohd. Sartaj v. State of U.P., ( (2006) 2 SCC 315 ). We do not dispute the position of law as enunciated by the Supreme Court in the deci¬sions cited by the O.Ps. But once the petitioner was selected and promoted by the DPC, may it be by mistake, the order cancelling the promotion is bound to affect the rights of the petitioner. The petitioner had already joined the promotional post by virtue of Annexure-2, which was countersigned by the Chairman-cum-Manag¬ing Director, Mahanadi Coalfields Ltd. The rule of natural jus¬tice demands that the petitioner should be given a notice before cancelling the order of promotion. Referring to the decision of the Constitution Bench rendered in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 , the apex Court in the case of Basudeo Tiwary (supra) held as follows : “If notice is not given to him then it is like playing Halmet without the Prince of Denmark, that is, if the employee concerned whose rights are affected, is not given notice of such a proceeding and a conclusion is drawn in his absence, such a conclusion would not be just, fair or reasonable.” 5. There is nothing in the counter affidavit to show that a notice had been given to the petitioner before cancelling the order of his promotion in Annexure-3. We have, therefore, no hesitation to quash the order dated 30th March, 2007 issued by the Chief General Manager (Personnel) of the Coal India Ltd., cancelling the promotion of the petitioner, vide Annexure-3, and accordingly we do so. We, however, leave it open to the O.Ps. to proceed with the matter afresh by giving an opportunity of hear¬ing to the petitioner. The writ petition is accordingly allowed. No cost. M. M. DAS, J. I agree. Petition allowed.