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2016 DIGILAW 394 (CAL)

Dipak Kumar Mukherjee v. Coal India Ltd.

2016-05-02

SANJIB BANERJEE

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JUDGMENT : Sanjib Banerjee, J. The grievance of the petitioner herein is that a promotion that was due to the petitioner in July of 2008 was originally stalled on the ground that the employer contemplated instituting disciplinary action against the petitioner, it was subsequently denied to the petitioner on the ground that the disciplinary action was instituted against the petitioner and it was finally declined, notwithstanding the initial disciplinary action being dropped, on the ground that a minor penalty had been slapped on the petitioner in the subsequent disciplinary action by the time the first action had been abandoned. 2. The petitioner was then the Senior Manager (Vigilance) in the Legal Department of Coal India Limited. The petitioner's case for promotion was considered by a departmental promotional committee and there is no dispute that the petitioner was recommended for promotion and the petitioner would have obtained the same within reasonable time of July, 2008. However, at such inopportune time for the petitioner, a complaint surfaced to the effect that the petitioner had induced his superiors or the employer to pass an extremely unusual order of the petitioner being appointed in the organisation that he joined on deputation, but with retrospective effect from the date of his coming on deputation. 3. Such charge was inquired into at the preliminary stage to decide whether it merited any action and since Coal India Limited is a Government company and judicial orders reveal the several baggage's that it otherwise carries, the process of a complaint or information ripening into a disciplinary action by the issuance of a charge-sheet took about 14 months till December, 2009. Thus, the petitioner's case for promotion stood stalled from July, 2008 to December, 2009, without any disciplinary action being instituted against the petitioner, but on the apprehension or anticipation that disciplinary proceedings could be launched against him. 4. Since the charges levelled against the petitioner pertained to his alleged act of inducement several years back, the challenge to the charge-sheet was entertained by an order of April 5, 2010 passed on WP No.110 of 2010. The disciplinary proceedings were arrested by such order and directions were issued for filing affidavits. An appeal preferred by the employer against the interim order was unconditionally withdrawn on July 28, 2010 and the employer took its chance to urge in favour of the disciplinary action before the Single Bench. The disciplinary proceedings were arrested by such order and directions were issued for filing affidavits. An appeal preferred by the employer against the interim order was unconditionally withdrawn on July 28, 2010 and the employer took its chance to urge in favour of the disciplinary action before the Single Bench. The writ petition appears then to have been taken up after affidavits on August 12, 2013 when an order of limited import was passed, which neither side has cared to rely on in course of the present proceedings. However, a hint of what may or may not have been said in the order of August 12, 2013 is evident from the employer's decision of August 29, 2013 by which the disciplinary action initiated by the charge-sheet issued on December 10, 2009 was dropped. The memorandum of August 29, 2013 referred to the decision reflected therein being taken "in the light of the observations made by the Court" on August 12, 2013, "that the charge sheet was issued much after various events mentioned in the charge sheet" had taken place. 5. In view of employer's reasonable stand of dropping the disciplinary action, WP No.110 of 2010 was formally disposed of by an order of September 4, 2013 which, obviously, did not go into any other aspect of the matter. 6. Long prior to WP No.110 of 2010 being disposed of, the present petition was instituted in May of 2010. When this petition was received on May 19, 2010, directions were issued for filing affidavits; but in view of the pendency of WP No.110 of 2010, the hearing on this petition was stayed till the disposal of the previous petition. 7. One of the minor objections taken on behalf of the employer is that notwithstanding a prayer for promotion not being made in WP No.110 of 2010 when it was filed, the promotion was sought to be made an issue and a prayer in such regard was deemed to have been made by the petitioner in course of the previous petition by filing a supplementary affidavit therein. However, the filing of such supplementary affidavit and the failure to assert the matter of promotion in course of the previous petition will not have any bearing on the present proceedings as this petition had been filed long prior to the disposal of WP No.110 of 2010 and none of the orders passed on such previous petition dealt with the aspect of promotion or passed any order adverse to the interest of the petitioner in respect thereof. Neither the principle of constructive res judicata nor the rule embodied in Order 2, Rule 2 of the Code of Civil Procedure, 1908 would apply. 8. Ordinarily, an order of promotion is to be given effect to within reasonable time of it being made. In this case, there is no doubt that the petitioner's name had been recommended for promotion and there were vacancies in the promoted post. It appears that merely a complaint pertaining to the petitioner's retrospective absorption was found good enough to stall the petitioner's immediate promotion and such status quo continued till such time that the disciplinary charge-sheet was issued against the petitioner, whereupon it could be truly said that the disciplinary action was instituted against the petitioner and the promotion had to be withheld. 9. For good or bad, during the pendency of the first disciplinary action, which remained stayed by virtue of the order of April 5, 2010, a second action was instituted against the petitioner in December, 2010 which culminated in a minor penalty of censure being passed against the petitioner in February, 2013. 10. The employer says that it was not arbitrary on its part to withhold the promotion on the basis of a credible complaint as to the petitioner's complicity in an unusual order being passed in his favour, particularly since such information or complaint ultimately resulted in the Chairman-cum-Managing Director of the employer approving the initiation of the disciplinary action and the charge-sheet being issued to the petitioner on December 10, 2009. The employer also maintains that the charges were not dropped on the ground that they were bad or could not be sustained; but, merely in deference to the observations made by this Court on August 12, 2013 that the charges may have been stale. The employer also maintains that the charges were not dropped on the ground that they were bad or could not be sustained; but, merely in deference to the observations made by this Court on August 12, 2013 that the charges may have been stale. The employer exhorts that if the promotion of July, 2008 could not be made effective on the legitimate grounds as aforesaid till the exoneration of the petitioner by the memorandum of August 29, 2013 and other events had overtaken the petitioner to disqualify him from the promotion during the interregnum; the blame cannot be laid at the doors of the employer and it is the petitioner's conduct which can be faulted for the petitioner not securing the promotion. 11. The service jurisprudence that has developed in matters pertaining to public employment and employment in Government undertakings and the like is not founded on statutory principles. The rules applied are the fundamental principles of administrative law as developed by judge-made law over half a century and more. 12. There is no statutory prohibition to a promotion being given upon a complaint against the would-be promotee being received or upon a disciplinary action being instituted against the would-be promotee. There is, however, a rational restraint exercised by the employer in not rushing to promote a person against whom a charge-sheet is issued in respect of the conduct of the employee which the employer believes ought to be looked into. 13. It is for the same reason that it cannot be said that merely because a charge-sheet has not been issued but a complaint is being deliberated upon, the promotion has to be effected notwithstanding credible allegations as to the alleged misconduct of the would-be promotee. It is, in such circumstances, to be ascertained whether a reasonable and rational balance was stuck between the grant of the promotion on the ground that there was no decision to institute any disciplinary action in the sense that no charge-sheet has been issued and the likelihood of a charge-sheet being issued on the basis of a credible complaint being received. 14. 14. It would be inappropriate for a Government organisation to promote an employee to a key post if the promotion is made after the receipt of a complaint containing prima facie evidence of the would-be promotee's complicity in an act involving moral turpitude or other grave misconduct; but such principle would not apply to every complaint of alleged misconduct. There can, therefore, be no hard and fast rule as to whether a promotion should be withheld or deferred upon the receipt of a complaint containing credible allegations as to the misconduct of the would-be promotee; though a promotion should be withheld once a charge-sheet has been issued upon prima facie acceptance of the possibility of misconduct. 15. But a distinction has to be made on the basis of the quality of the complaint. This was not a complaint received against the petitioner for any act of graft or like misconduct. It may even not be called a complaint but a fortuitous discovery by persons who may have been inimical to the petitioner that some decade and a half ago the petitioner had allegedly induced his superiors to confer an unusual benefit on the petitioner. Again, it must be appreciated that it is open to an employer to confirm the service of an employee or a trainee or a person on deputation and whether to make the confirmation prospective or retrospective. It was not an illegal order. It was not a benefit that the petitioner conferred unto himself. The charge was that the petitioner may have used his charm or guile on the persons responsible for taking the decision to confer an extraordinary benefit on the petitioner. 16. Whether or not it was advisable or rational for the petitioner's promotion due in July, 2008 to be withheld during the period of 14 months that such complaint underwent a preliminary inquiry, once such disciplinary action was dropped – whatever may have been the reasons therefore – the slate was wiped clean, so to say. It was as if the impediment to the petitioner's promotion that arose in August, 2008 and loomed till August, 2013 was brushed aside as if it never existed. 17. Now, to the disciplinary action initiated in December, 2010. It cannot be said that an order of promotion made in July, 2008 had to wait till December, 2010 to be implemented. It was as if the impediment to the petitioner's promotion that arose in August, 2008 and loomed till August, 2013 was brushed aside as if it never existed. 17. Now, to the disciplinary action initiated in December, 2010. It cannot be said that an order of promotion made in July, 2008 had to wait till December, 2010 to be implemented. If the legal effect of the charge-sheet of December 10, 2009 being dropped by the memorandum of August 29, 2013 is that the entire episode is erased from the petitioner's records, the consideration would be whether the charge-sheet of December, 2010 can still be used as a reason to deny the promotion that was due to the petitioner by August, 2008. Again, the nature of the charge, the gravity of the punishment, the seniority of the position and like factors are all relevant for the consideration. It is evident that the first disciplinary action did not pertain to the petitioner's character or efficiency, except to the extent that he had obtained a legally permissible, but arguably unworthy benefit. The second disciplinary action, for whatever it was worth, culminated only in a punishment of censure. In the light of the considerable humiliation and suffering occasioned to the petitioner – a man of senior position – which the Court found fit to arrest in April, 2000 and, finally, observed that it was not worthy of continuation in August, 2013, it would be unreasonable to allow the ghost of the initial disciplinary action to continue to haunt the petitioner even after such action had been laid to rest. If the first action had not been initiated, the petitioner would have stood promoted long prior to the second action being instituted in December, 2010. 18. For the reasons aforesaid, the petitioner is found to be entitled to the promotion that was due to him pursuant to the DPC of July, 2008. The petitioner will be given such promotion with effect from September 1, 2008 with consequential benefits till the petitioner's retirement on November 30, 2013. The retrial and other dues of the petitioner will be recalculated such that all the money due to the petitioner from the employer, including in terms of this order, is paid off within three months from date. 19. WP No.547 of 2010 is allowed as above without any order as to costs. 20. The retrial and other dues of the petitioner will be recalculated such that all the money due to the petitioner from the employer, including in terms of this order, is paid off within three months from date. 19. WP No.547 of 2010 is allowed as above without any order as to costs. 20. Urgent certified website copies of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.