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2013 DIGILAW 1228 (JHR)

Indu Bhushan Prasad v. Central Coalfields Ltd.

2013-11-13

APARESH KUMAR SINGH

body2013
ORDER Heard counsel for the parties. 2. The petitioner is seeking quashing of the letter dated 26.5.2012(Annexure-12) by which his claim for promotion in Accountant Grade-A-1 has been rejected on the ground that charge sheet dated 10.11.2003 is pending against him for certain alleged misconduct. He has also sought quashing of the said departmental proceeding initiated vide letter dated 10.11.2003(Annexure-2). Consequently, the petitioner has sought for direction upon the respondents to grant him promotion in Accountant Grade-A-1 with all consequential benefits w.e.f. 3.3.2006 when several juniors to him have been promoted. 3. The case of the petitioner is that he was appointed on 18.1.1996 on the post of Accountant(T&S Grade-A). By letter dated 10.11.2003(Annexure-2) he was placed under suspension and asked to show cause for certain alleged charges in relation to passing of certain bills which led to the loss of Rs. 8,88,593.64 to the employer- C.C.Ltd. This related to the bitumen painting over roof of residential quarter at Kargali Area for Rs. 3,15,707; replacement of damage pipe line and repairing of leakage of main pipeline for Rs. 2,81,539.44; colour washing, distempering of K.S. Central School teachers and staffs quarter for Rs. 2,91,347.20. Petitioner contends that he immediately submitted reply to the said show cause denying all the allegations levelled against him and it appeared that the said explanation of the petitioner was accepted by the respondent authorities as till date no further action has been taken by the respondent authorities against the petitioner. It is further submitted that an F.I.R being Bermo P.S. Case No 130 of 2003 was registered against the proprietor of Rohtas Engineering Construction with the allegations that because of passing of forged bills, he illegally received payment of Rs. 8,88,593.64/-. In the meantime the petitioner was also implicated in the said case and he obtained bail on 9.1.2004 vide order passed in. B.A. No. 6898 of 2003 by a Bench of this Court. It is the case of the petitioner that on 18.3.2004 his suspension was vacated by the respondents vide Annexure-5 and he was transferred to Dhori area. In the meantime the respondents had undertaken an exercise to grant promotion to certain persons to the post of Accountant Grade including the petitioner. However he was not allowed to join the promoted post inspite of the decision to promote him on 27/30.6.2008(Annexure-6). In the meantime the respondents had undertaken an exercise to grant promotion to certain persons to the post of Accountant Grade including the petitioner. However he was not allowed to join the promoted post inspite of the decision to promote him on 27/30.6.2008(Annexure-6). The criminal case which was initiated against the proprietor of Rohtas Engineering Construction in which other accused persons including the petitioner were proceeded against ultimately led to the acquittal of the accused persons vide judgment dated 15.4.2009 passed in T.R. No. 151 of 2009 corresponding to G.R. No.838 of 2003(Annexure-8). Learned counsel for the petitioner contends that the said criminal case ended in his acquittal as the prosecution miserably failed to prove its case beyond the shadow of all reasonable and probable doubts. It is further contended that a perusal of the judgment itself would disclose that the accused persons were proceeded against for having led to the withdrawal of Rs.8,88,593.64/-, the same amount as has been referred in Annexure-2- the alleged charge sheet, on the allegation that it was withdrawn on the basis of forged and fabricated documents. 4. The petitioner, thereafter, had approached this Court with a prayer to direct the respondents to consider the case for grant of promotion in W.P.S. No. 7014 of 2011. The said writ petition was disposed of on 2.1.2012 by the learned Single Judge of this Court directing the General Manager, Bokaro and Kargali Area, C.C.L to take a decision on the representation in accordance with law within a period of 12 weeks after giving adequate opportunity of being heard to the petitioner. The said representation however has been decided against him by the impugned order dated 26.5.2012(Annexure-12) on the ground inter-alia that the charge sheet dated 10.11.2003 is pending against him. 5. It is submitted by the learned counsel for the petitioner that the charge sheet at Annexure-2 is not in the nature of charge sheet but in the nature of show cause. In any case it is submitted that the respondents themselves have not proceeded against him for the last 10 years in respect of the said allegation. In the meantime the petitioner has also been acquitted of the same charges by the competent Trial Court as aforesaid by the judgment contained at Annexure-8. Learned counsel for the petitioner, therefore, submits that the impugned charge sheet itself needs to be quashed. In the meantime the petitioner has also been acquitted of the same charges by the competent Trial Court as aforesaid by the judgment contained at Annexure-8. Learned counsel for the petitioner, therefore, submits that the impugned charge sheet itself needs to be quashed. As such, the prosecution in the departmental proceeding which has remained pending for 10 years has led to the harassment of the petitioner for no fault of his as also denial of other benefits of promotion etc. on that account which is wholly unsustainable and bad in law. 6. Learned counsel for the petitioner has relied upon a judgment of the Hon'ble Supreme Court rendered in the case of P.V.Mahadevan Vrs. MD. T.N. Housing Board reported in (2005)6 SCC 636 . By referring to the said judgment, learned counsel for the petitioner submits that inordinate delay of 10 years in concluding the departmental proceeding with no convincing explanation furnished by the respondent - employer was held to be prejudicial to the delinquent employee and accordingly, quashed in the said case. The petitioner's case also stands on identical footing. 7. Learned counsel for the respondents on the earlier occasion by the order of this Court dated 25.9.2013 was asked to offer specific reply for not concluding the departmental proceeding initiated against the petitioner in 2003 till date. 8. The respondents had earlier filed a counter affidavit in which they had harped upon the pendency of the same departmental proceeding said to be initiated on 10.11.2003 being the ground for withholding the promotion and basis for rejecting his representation. In the supplementary counter affidavit filed on behalf of the respondents no satisfactory explanation has been given for the pendency of the departmental proceeding since the last 10 years. The charge sheet issued in the year 2003 remained unattended and came to the notice of the respondents only when the petitioner represented before the management for his promotion. It is further stated in the supplementary counter affidavit that the enquiry could not proceed further as there is a difference of opinion as to the Disciplinary Authority who would appoint the Enquiry Officer, whether it was the earlier Disciplinary Authority at B&K Area or the Present Disciplinary Authority at Dohri Area. It is further stated in the supplementary counter affidavit that the enquiry could not proceed further as there is a difference of opinion as to the Disciplinary Authority who would appoint the Enquiry Officer, whether it was the earlier Disciplinary Authority at B&K Area or the Present Disciplinary Authority at Dohri Area. The respondents have stated that they chose to prefer an appeal against the judgment of acquittal before the High Court in Criminal Appeal No. 977 of 2012 which was however withdrawn on 21.12.2012 giving liberty to the management of the C.C.L to file an appeal before appropriate forum. Thereafter, the respondent-CCL have preferred Criminal Appeal No. 106 of 2013 in the Court of Learned Principal Sessions Judge, Bokaro on 24.6.2013. In such circumstances, the respondents now have sought for some more time to conclude the departmental proceeding within fixed time frame. The aforesaid averments made in the instant supplementary counter affidavit , therefore do not make out any semblance of a reason for keeping pending the said proceedings for the last 10 years. 9. I have heard counsel for the parties and gone through the relevant materials on record including the impugned order and the judgment of acquittal passed in the case of petitioner by the Trial Court. The fact of pendency of the departmental proceeding said to have been initiated vide Annexure-2 dated 10.11.2003 for the last 10 years is not in dispute. 10. The charges which are apparent from perusal of the said letter dated 10.1.2003 do show that it related to acts of the petitioner for having failed to examine necessary documents in relation to the release of sum of Rs. 8,88,593.64 causing loss to the company. For the same loss of approximately Rs. 8.8 lakhs and for the alleged act of petitioner and few other employees of the company, the petitioner was prosecuted against along with others in a criminal case in which he has been acquitted by the judgment dated 15.4.2009(Annexure-8) in T.R. No. 151 of 2009 corresponding to G.R. No.838 of 2003. It also appears from the perusal of the judgment that the prosecution witnesses were the officials of the company who had failed to substantiate the charge against the petitioner. It has been held by the Trial Court that the prosecution has miserably failed to prove its case beyond all shadow of reasonable and probable doubts. It also appears from the perusal of the judgment that the prosecution witnesses were the officials of the company who had failed to substantiate the charge against the petitioner. It has been held by the Trial Court that the prosecution has miserably failed to prove its case beyond all shadow of reasonable and probable doubts. In the aforesaid background, the petitioner, unaware of the fate of the proceeding said to have been initiated against him, approached this Court W.P.S. No 7017 of 2011 after he was denied promotion. Upon direction by this Court to the General Manager, Bokaro and Kargali Area, C.C.L to consider the petitioner's representation in accordance with law, the respondents have rejected his case for promotion on the ground of pendency of such proceeding since November, 2003. In the background of the aforesaid facts and circumstances, and absence of any satisfactory explanation on the part of the respondents for pendency of the proceeding since 10 years without any fault of the petitioner, the petitioner obviously cannot be made to suffer at this stage of time, when other juniors to him have also been promoted. It also appears that apart from the petitioner no other employees under the Organization were proceeded against in any departmental proceeding, though criminal case was proceeded against few other employees like the petitioner which resulted in their acquittal by the same judgment. In such circumstances, prolonged continuance of the departmental proceeding has seriously prejudiced him. The continuance of such a protracted departmental proceeding may lead to loss of confidence of the employees in their employer i.e. C.C.Ltd. which is a Public Sector Unit. The ratio laid down by the Hon'ble Supreme Court in the case of P.V. Mahadevan Vrs. MD. T.N. Housing Board (supra) is applicable to the present case as well. In this regard para 5 and 11 of the said judgment is quoted herein below, which has thrown light upon various issues which were under consideration before the Apex Court and are also relevant in facts of the present case as well:- “Para 5:- In the second case of N. Radhakishan the respondent was appointed as Assistant Director of Town Planning in the year 1976. A report dated 7-11-1987 was sent by the Director General, Anti-Corruption Bureau, Andhra Pradesh, Hyderabad to the Secretary to the Government, Housing, Municipal Administration and Urban Development Department, Andhra Pradesh, Hyderabad about the irregularities in deviations and unauthorised constructions in multi-storeyed complexes in the twin cities of Hyderabad and Secunderabad in collusion with Municipal Authorities. On the basis of the report, the State issued two memos both dated 12-12-1987 in respect of three officials including the respondent Radhakishan, the then Assistant City Planner. In this case, till 31-7-1995 the articles of charges had not been served on the respondent. The Tribunal, however, held that the memo dated 31-7-1995 related to incidents that happened ten years or more prior to the date of the memo and that there was absolutely no explanation by the Government for this inordinate delay in framing the charges and conducting the enquiry against the respondent and that there was no justification on the part of the State now conducting the enquiry against the respondent in respect of the incidents at this late stage. This Court, in para 19, has observed as follows: (SCC p. 165) “19. It is not possible to lay down any predetermined principles applicable to all cases and in all situations where there is delay in concluding the disciplinary proceedings. Whether on that ground the disciplinary proceedings are to be terminated each case has to be examined on the facts and circumstances in that case. The essence of the matter is that the court has to take into consideration all the relevant factors and to balance and weigh them to determine if it is in the interest of clean and honest administration that the disciplinary proceedings should be allowed to terminate after delay particularly when the delay is abnormal and there is no explanation for the delay. The delinquent employee has a right that disciplinary proceedings against him are concluded expeditiously and he is not made to undergo mental agony and also monetary loss when these are unnecessarily prolonged without any fault on his part in delaying the proceedings. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. In considering whether the delay has vitiated the disciplinary proceedings the court has to consider the nature of charge, its complexity and on what account the delay has occurred. If the delay is unexplained prejudice to the delinquent employee is writ large on the face of it. It could also be seen as to how much the disciplinary authority is serious in pursuing the charges against its employee. It is the basic principle of administrative justice that an officer entrusted with a particular job has to perform his duties honestly, efficiently and in accordance with the rules. If he deviates from this path he is to suffer a penalty prescribed. Normally, disciplinary proceedings should be allowed to take their course as per relevant rules but then delay defeats justice. Delay causes prejudice to the charged officer unless it can be shown that he is to blame for the delay or when there is proper explanation for the delay in conducting the disciplinary proceedings. Ultimately, the court is to balance these two diverse considerations.” This Court held that there was hardly any explanation worth consideration as to why the delay occurred. In the circumstances, this Court held that the Tribunal was justified in quashing the charge memo dated 31-7-1995 and directing the State to promote the respondent as per recommendation of the DPC ignoring memos dated 27-10-1995 and 1-6-1996. Accordingly, the appeal filed by the State of Andhra Pradesh was dismissed”. “Para 11:- Under the circumstances, we are of the opinion that allowing the respondent to proceed further with the departmental proceedings at this distance of time will be very prejudicial to the appellant. Keeping a higher government official under charges of corruption and disputed integrity would cause unbearable mental agony and distress to the officer concerned. The protracted disciplinary enquiry against a government employee should, therefore, be avoided not only in the interests of the government employee but in public interest and also in the interest of inspiring confidence in the minds of the government employees. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. At this stage, it is necessary to draw the curtain and to put an end to the enquiry. The appellant had already suffered enough and more on account of the disciplinary proceedings. As a matter of fact, the mental agony and sufferings of the appellant due to the protracted disciplinary proceedings would be much more than the punishment. For the mistakes committed by the department in the procedure for initiating the disciplinary proceedings, the appellant should not be made to suffer”. 11. In the aforesaid background of facts and circumstances and also the ratio laid down by the Hon'ble Apex Court, the continuance of the alleged departmental proceeding initiated vide letter dated 10.11.2003 against the petitioner therefore is unworthy of being kept alive. Accordingly, it is quashed. Further, the impugned order dated 26.5.2012 by which petitioner's case for promotion has been rejected on account of pendency of the said charge sheet also therefore, cannot be sustained in view of the fact that the said charge sheet dated 10.11.2003 itself has been quashed. In the totality of the facts and circumstances and the reasons discussed herein above therefore the impugned order contained at Annexure-12 dated 26.5.2012 is quashed. 12. Consequentially the respondents are directed to take an informed decision in the matter of promotion of the petitioner from the date when the juniors to him have been promoted taking into account that such exercise in respect of petitioner and 9 others have already been undertaken vide Annexure-6 dated 27 /30.6.2008. It is informed that rest of the persons covered under the said order have already been granted promotion but petitioner's case for promotion had been kept pending. Accordingly, necessary order shall be passed by the respondents for grant of promotion to the petitioner from the date other juniors have been granted promotion, along with consequential benefits. 13. The writ petition is allowed in the aforesaid terms. I.A. No. 5969 of 2013 is also stands disposed of.