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2015 DIGILAW 624 (CAL)

Chander Bhusan Sood v. Coal India Ltd.

2015-07-29

SIDDHARTHA CHATTOPADHYAY, TAPEN SEN

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JUDGMENT: SIDDHARTHA CHATTOPADHYAY, J.: Having lost the legal battle in connection with the order and judgment dated 30.01.2015, passed in W.P. 10654/2013, this disgruntled appellant, by filing this mandamus appeal called in question the legality and validity of the impugned judgment. 2. As against, this respondent No. 1 to 3 i.e. Coal India Ltd. has filed affidavit in opposition, so also respondent No. 4 i.e. Chief Vigilance Commissioner, in which they submitted that the Learned Trial Judge has taken care of all relevant aspects & passed a well-reasoned order, which does not call for any interference. 3. In the interest of effective adjudication, factual aspect needs to be reiterated. Filtering out unnecessary details, appellant’s case in a nutshell is such that he has obtained a 1st class Mine Manager’s certificate of competency (coal) from Director General of Mines Safety, Dhanbad in the year 1984 and worked as Assistant Colliery Manager in Central Coalfields Ltd. from 10th January, 1985 to till 11th September, 1988 and time to time he got promotion. He was posted as Chief General Manager, Eastern Coalfields Ltd. on and from 21st June, 2007 to till 24th July, 2012. Thereafter, he was promoted to the post of Executive Director (Safety and Rescue) and joined there on 25th July, 2012. 4. While he had been working as Assistant General Manager, Kunustoria, Area, Eastern Coalfields Ltd., a departmental proceeding was initiated against him and in response to that charge-sheet, he has submitted his representation refuting, the allegations levelled against him and prayed for acquittal. Regular proceeding was not held but the Chairman-cum-Managing Director (Acting) Central Coalfields Ltd. has imposed the penalty of “Censure” vide their office Memo No. CCL/VIG/RDA-04-05/2442 dated 28th January, 2005. 5. Feeling aggrieved at it, the writ petitioner preferred an appeal before the Chairman-cum-Managing Director Coal India Ltd. It was his specific case that since 19.06.2007 to till 17.06.2011 the petitioner sat for ten interviews but he could not succeed due to pendency of the appeal. His prayer of appeal, however, was finally decided on 28.09.2011, vide Order No. CIL/VIG/CCL/APPEAL/CBS/985. Thereafter the petitioner filed writ petition bearing No. 1202 (W) of 2012 and got interim order by which this Hon’ble Court restrained the defendants/respondents from taking cognizance of the ‘adverse entry’. His prayer of appeal, however, was finally decided on 28.09.2011, vide Order No. CIL/VIG/CCL/APPEAL/CBS/985. Thereafter the petitioner filed writ petition bearing No. 1202 (W) of 2012 and got interim order by which this Hon’ble Court restrained the defendants/respondents from taking cognizance of the ‘adverse entry’. After joining as an Executive Director (Safety and Rescue) CIL he had submitted a fresh application on 25.07.2012 in order to enable him to place his candidature before the Director (Technical) SECL. 6. In the meantime, Public Enterprise Selection Board (PESB) conducted interview for the post of Director of various Coalfields and his name was figured at serial No. 1, amongst the successful candidates. 7. According to him, the General Manager (Personnel) had addressed a letter bearing reference Nos. CIL/C-5A (II)/CBSood/ED(S & R)/D (T), SECL/4417 dated 8th November, 2012 to the Manager (Personnel) Eastern Coalfields Ltd. and in pursuance of which the Manager (Personnel) Eastern Coalfields Ltd had enclosed the desired information in respect of the writ petitioner. He has specifically stated that it would appear from the Data base performance that his performance was highly appreciated because he had a great contribution to the ‘profit’ of the company. 8. It is his irony of fate that when he was expecting an appointment letter for the highest post, he received a memo being reference Nos. CIL/VIG/VD-72(CH)/1234 dated 19.02.2013 that a proceeding under Rule 31 of Coal India Executives’ Conduct, Discipline and Appeal Rules and other relevant documents has been contemplated. Practically this proceeding was for another reason. When his appeal for the punishment of “Censure” was pending before the Appellate Authority, he had sent one of his colleagues i.e. Asish Kumar Hazra with some money to persuade his appeal. The said Asish Kumar Hazra admitted before the Disciplinary Authority that the petitioner has given some money to him for pursuing of his appeal pending before the head office. 9. This writ petitioner, in writing has admitted that he had given money to Mr. Asish Kumar Hazra but that was for the purpose of Mr. Hazra’s fooding and lodging at Calcutta. 10. He has specifically alleged that the Chief Vigilance Commissioner’s communication was not sent to him and he raised his fingers against the Chief Vigilance Commissioner challenging why they denied to issue vigilance clearance certificate to the petitioner. Asish Kumar Hazra but that was for the purpose of Mr. Hazra’s fooding and lodging at Calcutta. 10. He has specifically alleged that the Chief Vigilance Commissioner’s communication was not sent to him and he raised his fingers against the Chief Vigilance Commissioner challenging why they denied to issue vigilance clearance certificate to the petitioner. He has also alleged that Chief Vigilance Commissioner with some mala fide intention put pressure upon Coal India Ltd. to initiate proceeding against him, which is anything but fair. 11. Ventilating his such grievances, he has filed a writ petition with a prayer to not to give any effect of memorandum dated 3rd January, 2013, 19th February, 2013, 20th March, 2013 and 28th March, 2013 and also a direction upon the authority concerned to appoint the appellant to the post of Director (Technical) SECL on the basis of the selection and recommendation made by the Public Enterprise Selection Board (PESB) 12. Respondent Nos. 1 to 3 filed affidavit in opposition in which they have categorically denied all the material allegations levelled against them. According to them, the appellant himself admitted his guilt in writing that he had given some money to one Asish Kumar Hazra for pursuing his (appellant) case pending before the appellate authority. Although the writ petitioner had taken a very weak plea that as the said Hazra was supposed to come to Calcutta so for his fooding and lodging he had given the money. But his such plea is devoid of any merit on the ground that Hazra has his house in Calcutta. Therefore, there is no reason to believe that Hazra required some money for the purpose of his fooding and lodging in Calcutta. This apart, even if it was required, the appellant ought not to have given money to him. 13. At the time of hearing Learned Counsel appearing on behalf of the appellant submitted that the departmental proceeding was started and even after imposition of punishment under the style of “Censure” this writ petitioner was given promotion and held the post of Chief General Manager with effect from 9.3.2007. He has preferred appeal against the comment “Censure”. In the meantime, he had appeared in ten interviews but due to existence of departmental proceeding he was not favoured. He further submitted that most illegally and for some ulterior motive, the respondent authority withheld the ‘appeal hearing’. He has preferred appeal against the comment “Censure”. In the meantime, he had appeared in ten interviews but due to existence of departmental proceeding he was not favoured. He further submitted that most illegally and for some ulterior motive, the respondent authority withheld the ‘appeal hearing’. Thereafter another departmental proceeding was started and he was found guilty and for which punishment was awarded. He further submitted that Vigilance Commission had nothing to do except to clear his case. Not only that it is the Chief Vigilance Commissioner, who himself has advised the department concerned to initiate proceeding against him. 14. Learned Lawyer appearing on behalf of the Chief Vigilance Commissioner has submitted that the submissions of the writ petitioner should be discarded on the ground that there is a clear guideline of Chief Vigilance Commissioner, vide circular dated 12th July, bearing No. 3(v)/99/4 Satarkta Bhavan, Block – A, GPO, Complex, INA wherein it has been mentioned that vigilance clearance is mandatory in respect of all candidates. He has also submitted that as per Section 8 Clause 1(g) of Chief Vigilance Commission Act, the said Commission has right to tender advice to the Department. 15. Learned Lawyer appearing on behalf of the respondent Nos. 1 to 3 has submitted that they could not take action against the erring officer so far as “Censure” is concerned because the present writ petitioner has obtained an order of stay which was valid up to 20.03.2012. Therefore, in between that period they had no occasion to start the Departmental Proceeding against him. Thereafter, they are not at all responsible for causing delay in disposal of departmental proceeding. 16. According to the appellant, Learned Single Judge failed to appreciate that “Censure” cannot stand in the way of promotion and he has also preferred an appeal which is still pending. Secondly, in spite of punishment of “Censure”, he was promoted to the post of Chief General Manager, with effect from 09.03.2007. Thirdly, delay in disposing of his appeal by the authority concerned is only to depriving him to get the top post. Fourthly, the Chief Vigilance Commissioner has no authority to withhold Vigilance Certificate in such cases. 17. Learned Counsel appearing on behalf of the respondent Nos. 1 to 3 and respondent No. 4 made a pincer attack to nullify the contentions of his adversary. Learned Counsel appearing on behalf of the respondent Nos. Fourthly, the Chief Vigilance Commissioner has no authority to withhold Vigilance Certificate in such cases. 17. Learned Counsel appearing on behalf of the respondent Nos. 1 to 3 and respondent No. 4 made a pincer attack to nullify the contentions of his adversary. Learned Counsel appearing on behalf of the respondent Nos. 1 to 3 submitted that appellant’s affidavit is the admixture of half truths and untruths, which should be out rightly discarded. 18. Learned Counsel appearing on behalf of the respondent Nos. 1 to 3 categorically submitted that the writ petitioner was awarded punishment of “Censure” and during the pendency of the said appeal he offered money to Mr. Asish Kumar Hazra for pursuing his appeal and said Hazra admitted it in writing. This apart, the present appellant also admitted it in writing. Therefore, prima facie it appears that two offences have been committed by the appellant. For one offence punishment has been given to him in the form of “Censure” and another offence is for giving money to one of his colleagues for pursuing of his appeal. 19. On perusal of affidavit, affidavit-in-opposition, affidavit-in-reply along with the documents filed herein and after giving an anxious thought over the rival submissions of both parties we are of the view that the appellant lost his every right to hold such a top post till Vigilance Commissioner Clearance is received. Chief Vigilance Commissioner has the right to tender advice to all the departments of Union of India under Section 8 Clause 1(g). A guideline of Chief Vigilance Commissioner is such that vigilance clearance is mandatory in respect of all candidates. Naturally, respondents had not committed any mistake. On the contrary, if the writ petitioner has done such thing then it is unbecoming of a public servant. 20. Charge in this case may not be serious enough in comparison to various scams but it is expected that such a top level post be adorned by a person, whose integrity is unquestionable and the person’s antecedents must be unblemished one. There is no yardstick/parameter to measure the percentage of “Honesty”. If anybody ventures to measure the degree of “Honesty”, then it would be an auto-limitation. “Honesty” may not be a virtue (because everybody should have such quality) but dishonesty is a vice. There is no yardstick/parameter to measure the percentage of “Honesty”. If anybody ventures to measure the degree of “Honesty”, then it would be an auto-limitation. “Honesty” may not be a virtue (because everybody should have such quality) but dishonesty is a vice. If a person of that stature wants to get rid of punishment by paying money for inducing other person, certainly he will have no right to get top post. 21. In such circumstances, the appellant should not cry over spilt milk, because it may have been contaminated. It appears to us that the appellant left the room with silent dignity but caught his foot in the mat. 22. Therefore, the epilogue is: This appeal has no merit. Accordingly, it is dismissed. 23. There shall be no Order as to costs. 24. Urgent certified photocopy of this Judgment and Order, if applied for, be supplied to the parties upon compliance with all requisite formalities. I Agree. (Tapen Sen, J.) With utmost respect to my learned Brother, I am unable to agree with this Judgement primarily for the following reasons :- The Vigilance Department is an authority only to advise. The nature of offence that has been saddled upon the Petitioner is in the nature of casting an allegation of corruption. The finding of my learned Brother is that “if a person of that stature wants to get rid of punishment by paying money for inducing other person, certainly he will have no right to get the top post”. In my opinion, there is no finding to the effect that money was paid for inducing some other person. On the contrary, there are statements and evidences to show that money was paid for food and lodging. Therefore, the element of attempting to induce somebody, in my humble opinion, is perhaps missing and, therefore, I am unable to agree with this Judgement. I, therefore, consider it appropriate that the matter be referred to a Special Bench. Let this case, therefore, be placed before Hon’ble the Chief Justice for appropriate Orders.