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Jharkhand High Court · body

2009 DIGILAW 694 (JHR)

Birendra Prasad Rai v. Coal India Limited

2009-05-05

D.G.R.PATNAIK

body2009
JUDGMENT The petitioner was appointed on the post of Overseer (Civil) on 11.01.1977 and was posted at Kedla-Gidi Washery Road Project, Kuju under the respondent C.C.L. On 12.09.1978, he was put under suspension pursuant to a prosecution lodged by the C.B.I. against him. Almost six years later, on 13.04.1984, he was served with a charge sheet in connection with the same matter. Two years after his submitting the show cause replies, a departmental proceeding was initiated against him. However, within three months of the initiation of the proceeding, the enquiry against him was withdrawn. In the criminal proceeding, the trial court had convicted him. Against the order of his conviction and sentence, he preferred an appeal before the Patna High Court. By order dated 07.08.1998, his conviction and sentence was set aside and he was acquitted of the charges. Upon his acquittal from the charges in the criminal proceeding, by office order dated 27.09.1999, the respondents allowed the petitioner to join his duty and accordingly, he resumed duty on and from 01.10.1999 initially at Kuju and thereafter, at his transferred post at Giridih and later, upon his transfer, at Piparwar. 2. The grievance of the petitioner is that but for his suspension and the initiation of the departmental proceeding, both of which were later unilaterally recalled by the respondents themselves, the petitioner would have been granted promotion to the next higher post on 11.01.1980 when his other colleagues got such benefits and he would have also received all the consequential benefits of promotion. 3. The petitioner’s claim is that since no charges against him were proved in any departmental proceeding and neither in the criminal prosecution, the respondents ought to have considered his case sympathetically and ought to have compensated the loss caused to him due to his continuous suspension and ought to have granted him at least notional promotion with effect from 11.01.1980 with all consequential benefits including the quarterly bonus, ex-gratia, L.T.C., L.L.T.C. and earned leave during the period of 21 years spent under suspension and his original position in seniority should have been restored. The petitioner’s further grievance is that though he had submitted his representation requesting for granting all the eligible benefits to him but the same has not been considered by the respondents. 4. The petitioner’s further grievance is that though he had submitted his representation requesting for granting all the eligible benefits to him but the same has not been considered by the respondents. 4. In their counter affidavit, the respondents have wanted to explain that it was on account of initiation of the criminal prosecution against the petitioner by the C.B.I., that the petitioner was initially placed under suspension. Later, when the trial court by its judgement dated 07.03.1984 convicted him for the charges leveled against him, the respondents had initiated a departmental proceeding against him, after serving him the charge sheet. It is however admitted that the charges, for which the departmental proceeding was initiated against the petitioner, were the same for which the petitioner was criminally prosecuted and convicted by the trial court. It is also explained that only the memo of enquiry was withdrawn/cancelled and not the departmental proceeding itself as wrongly stated by the petitioner. The respondents acknowledge however that it was only after the petitioner’s conviction was set aside in the appeal by the High Court, the respondents had allowed the petitioner to join his duty after revoking the order of his suspension. During the entire period from the date since he was put under suspension and till the date when it was recalled, the petitioner had availed his subsistence allowance. Later, his salary was paid to him with full back wages for the entire period of his suspension, after deducting the subsistence allowance which was already paid to him. He was also paid the annual increments and the service linked upgradation even though he had not actually worked nor was physically present for work during the entire period of his suspension. As regards the petitioner's claim for promotion and the other consequential benefits, the respondent’s stand is that since the petitioner did not perform his duties and was placed under suspension for reasons directly attributable to him, he could not have earned any promotion and even otherwise, he cannot claim his promotion as a matter of right. Likewise, payment of quarterly bonus, ex-gratia, L.T.C., L.L.T.C. and earned leave is directly linked with the actual attendance put by employees for the work in the establishment. Likewise, payment of quarterly bonus, ex-gratia, L.T.C., L.L.T.C. and earned leave is directly linked with the actual attendance put by employees for the work in the establishment. Since the petitioner did not actually work and was suspended on account of reasons exclusively attributable to his own conduct, and there being no fault on the part of the respondent company, the petitioner is not entitled to claim or receive any such monetary benefits. 5. From the rival submissions, the facts which emerge are that a criminal case was instituted against the petitioner on the basis of an F.I.R. lodged by the C.B.I. on charges relating to offence under the Prevention of Corruption Act. The trial court had convicted him for the offences, though such conviction was set aside by the appellate Court. These facts were reason enough for the employer to put the petitioner under suspension as per the Rules of the Company and as such the petitioner cannot possibly find any fault with his employer either for putting him under suspension or for initiating departmental proceeding against him. Admittedly, during the entire period of his suspension, he had not worked. Yet, considering the fact that his conviction was set aside by the appellate Court, the respondents had not only revoked the order of his suspension but had also allowed him to resume duty by giving him the additional benefit of full back wages together with the annual increments and other monetary benefits. Having admittedly not worked for a single day during the entire period of his suspension, the petitioner cannot possibly claim the benefits of quarterly bonus, L.T.C., L.L.T.C. and earned leave since such benefits, as rightly pointed out by the learned counsel for the respondents, are directly linked with the actual attendance put by the employees for the work in the establishment. As regards the claim for promotion, it is well settled that the employee cannot claim promotion as a matter of right. As regards the claim for promotion, it is well settled that the employee cannot claim promotion as a matter of right. However, considering the fact that the respondents have themselves accepted the decision of the appellate Court in the criminal proceeding and have acknowledged that the petitioner has not been found guilty of any of the charges and furthermore, having acknowledged these facts, the respondents have themselves not only recalled the enquiry pertaining to the departmental proceeding and also the order of suspension and have even restored the petitioner's service and paid him the entire amount of back wages for the period he remained under suspension, it would be for the respondents to decide in their exclusive discretion upon the petitioner’s prayer to consider the grant of notional promotion to him with effect from the date when his other colleagues were granted such promotion. 6. Learned counsel for the petitioner has pointed out that the petitioner has filed his representation before the concerned authorities of the respondents but the same has not been disposed of as yet. If this is so, the petitioner may file a fresh representation before the concerned authorities of the respondents placing his request and if no decision has been taken as yet by the respondent on the petitioner’s earlier representation, the concerned authorities of the respondents may, in their discretion, consider the petitioner’s representation and record their decision on the same by a reasoned and speaking order, within three months from the date of receipt of the representation and shall effectively communicate such decision to the petitioner. With these observations, this writ application is disposed of. Let a copy of this order be given to the learned counsel for the respondents.