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2014 DIGILAW 456 (CAL)

Sukumar Pal v. Union of India

2014-05-15

SAMBUDDHA CHAKRABARTI

body2014
Judgment Sambuddha Chakrabarti, J. The short point involved in the writ petition is whether an order of promotion can be stalled or nullified by issuing a chargesheet subsequently. The petitioner has challenged the action on the part of the respondents for not implementing the order of promotion to the rank of Assistant Security Commissioner, Group-‘A’ Junior Scale in view of the fact that such promotion was approved by the concerned Ministry. The petitioner is an Inspector of the Railway Protection Force (RPF). The Departmental Promotion Committee, after considering the seniority-cum-suitability of the petitioner selected him for the promotion of the higher rank as mentioned above. His name was recommended before the competent authority for approval. At that point of time, neither any departmental proceeding nor any criminal proceeding was pending against him and this was also certified by the Senior Security Commissioner to the I.G. After obtaining the clearance from all concerned the Railway Board approved the promotion of the petitioner. He was posted at the Railway Protection Force Academy, Lucknow. Subsequently, the Chief Security Commissioner, RPF, issued two charge-sheets, dated August 17, 2011 and August 24, 2011 respectively and the promotion and posting order was withheld on the ground of the said two disciplinary proceedings. The petitioner has, therefore, prayed for a writ in the nature of Mandamus, commanding the respondents to implement the order of promotion and posting of the petitioner and for other reliefs. The respondents have contested the writ petition by filing an affidavit-in-opposition and have denied the allegations contained in the writ petition. According to them, the Ministry of Railways had approved the appointment of the petitioner purely on an ad hoc basis along with thirty other Inspectors of different divisions in the railways. The promotional letter contained a stipulation that appointment was subject to Vigilance/DAR/Criminal Case clearance by the railways. However, the petitioner received copies of two charge-sheets dated August 17, 2011 and August 24, 2011. After communication of the said two charge sheets, no order of promotion in favour of the petitioner could be taken out from the Zonal Railway and, therefore, the petitioner cannot be spared for the promotion. The respondents have taken a specific stand that the order of promotion to the petitioner was made on an ad hoc basis because on the date of the sitting of the Departmental Promotion Committee no enquiry was pending against him. The respondents have taken a specific stand that the order of promotion to the petitioner was made on an ad hoc basis because on the date of the sitting of the Departmental Promotion Committee no enquiry was pending against him. However, the Zonal Railway before issuing the order of promotion and sparing the concerned official needs to evaluate the latest status of Vigilance/DAR/Criminal Case. In such view of it, the petitioner could not be spared on promotion as two major penal charge-sheets were issued against him before the final order from the Zonal Railway Head Quarter. The disciplinary proceeding in respect of one charge-sheet had been concluded but the other is in progress. The petitioner filed an affidavit-in-reply wherein he has reiterated his stand taken in the petition. The very specific point taken by the petitioner in the affidavit-in-reply is that when his name was approved for the promotion by the Ministry of Railways neither any departmental proceeding nor any criminal proceeding was pending against him and as such there was no illegality or irregularity for considering his promotion as well as the final effect was given to the promotion. The respondents are not authorized to withhold the promotion on the plea of vigilance clearance. The petitioner has also taken a very specific point that his promotional authority is the Ministry of Railways and the Railway Board had approved the promotion. The Zonal Authority had no power and jurisdiction to withhold the promotion on the basis of two major penalty charge-sheets, which were issued subsequent to the order of promotion. According to the petitioner, that was a calculated attempt on the part of the respondent no. 6 who with a view to depriving him of the legitimate promotion directed the subordinate officer to issue those two charge-sheets within a very short span of time so that the promotion could be held up. The question which has thus cropped up for consideration is whether the order of promotion earlier issued to the petitioner and approved by the concerned Board can be made subject to the result of the disciplinary proceeding subsequently initiated. The defence of the respondents is that the order of promotion was always subject to the result of the disciplinary proceeding. The question which has thus cropped up for consideration is whether the order of promotion earlier issued to the petitioner and approved by the concerned Board can be made subject to the result of the disciplinary proceeding subsequently initiated. The defence of the respondents is that the order of promotion was always subject to the result of the disciplinary proceeding. The respondents have taken a further point that if the disciplinary proceeding imposes a punishment regarding the charges leveled against him the ad hoc promotion cannot be given effect to. I have heard Mr. Gupta, the learned Senior Counsel for the petitioner as well as Mr. Chakroborty, the learned Senior Counsel for the respondents. The stand taken by the respondents does not really inspire much confidence. It is not clear why a subsequently instituted disciplinary proceeding on the basis of two charge-sheets should be a ground for not implementing an order of promotion which was passed and approved by the appropriate authority before the charge-sheets were issued. The defence of the respondents that this was an ad hoc promotion and this was subject to the Vigilance/DAR/Criminal Case clearance by the Railways is hardly any defence to the points raised by the petitioner. When an order of appointment or promotion contained stipulation like this it must necessarily mean that such vigilance, DAR or criminal case clearance must be in respect of the cases that may be pending at the time of passing the order of promotion. Otherwise, it might lead a weapon of harassment in the hand of any employer and it would be open to the employer to stall or even to nullify an appointment or a promotion given earlier on the basis of a charge-sheet or a vigilance report which may be issued subsequently. An ad hoc appointment subject to clearance from the vigilance or DAR etc., can never be interpreted that way and must be taken to mean as clearance in respect of those cases pending at the time the order of promotion or appointment is passed. Expressions like “subject to vigilance clearance” means the clearance to be given by the concerned department on the basis of the records it has on that date. It does not take note of anything that may happen in an uncertain future. That may lead to anarchical absurdity. In the case of Union of India and others Vs. Expressions like “subject to vigilance clearance” means the clearance to be given by the concerned department on the basis of the records it has on that date. It does not take note of anything that may happen in an uncertain future. That may lead to anarchical absurdity. In the case of Union of India and others Vs. Anil Kumar Sarkar reported in 2013(3) SLR 357, the Supreme Court had held with reference to that facts of this case it was not in dispute that when the respondent’s batchmates were promoted, the respondent was neither under suspension nor any charge-sheet was served upon him nor he was facing any criminal prosecution. In such circumstances, the recommendation of the Departmental Promotion Committee had to be honoured and there was no question of applying any sealed cover process. Again in the case of Union of India and Others Vs. Sangram Keshari Nayak, reported in (2007) 6 SCC 704 the Supreme Court had held that right to be considered for promotion is a fundamental right and such a right brings within its purview an effective, purposeful and meaningful consideration. With reference to the particular facts of that case, the Supreme Court observed that on the day on which the DPC held its meeting the vigilance enquiry was pending, no decision was also taken by the employer that the Departmental Proceeding should be initiated against the respondents. The recommendation of the Departmental Promotion Committee could be refused to be given effect to only when one or the other conditions mentioned in the particular circular stood satisfied which meant that against the respondents a charge-sheet had been issued or a disciplinary proceeding was pending. The charge-sheets having been issued subsequently there was no bar in promoting the respondents during that period. Mr. Majumdar next relied on the case of Union of India and Others Vs. K.V. Janakiraman and Others reported in (1991) 4 SCC 109 . In that case the Supreme Court had observed that the sealed cover procedure was to be resorted only after the chargememo/charge sheet is issued. The pendency of preliminary investigation prior to that stage will not be sufficient to adopt the sealed cover procedure. The Supreme Court further rejected the contention of the appellant that a person cannot be allowed to draw the benefit of a post, the duties of which he has not discharged. The pendency of preliminary investigation prior to that stage will not be sufficient to adopt the sealed cover procedure. The Supreme Court further rejected the contention of the appellant that a person cannot be allowed to draw the benefit of a post, the duties of which he has not discharged. In that case it was sought to be argued that to allow a man to do so could be against the elementary rule that a person has to be paid only for the work he has done and not for the work he has not done. The Supreme Court held that the normal rule of no work no pay is not applicable to cases where the employee although is willing to work has been kept away from work by the authorities for no fault of his. Thus, I find sufficient substance in the submission of the petitioner that on the basis of subsequently issued charge-sheet, his promotion could not be stalled nor can he be deprived of his promotional rights. The authority was not proper in not giving effect to the order of promotion to the petitioner on the ground of the pendency of the disciplinary proceeding. I direct the respondents to give effect to the order of promotion and posting of the petitioner as contained in the order, dated August 10, 2011 within a period of two weeks from the date of the communication of the order. The petitioner should also be notionally promoted with effect from the date of his co-promotees were promoted. It is made clear that if the petitioner is ultimately found guilty in the disciplinary proceeding initiated against him the authority will be at liberty to take appropriate steps against him in accordance with law. The writ petition is allowed. There will be no order as to costs.