Gajraj Singh vs Chairman, Coal India Ltd.

Paritosh K. Mukherjee, J.—The present writ petition was moved by Gajraj Singh, Deputy Personnel Manager, Kanusiork Area of Eastern Coalfields Ltd., inter alia, challenging an order dated April 21, 1990 (Annex. ''C'' to the writ petition), issued by the Chairman-cum-Managing Director, Eastern Coalfields Ltd., whereby the writ Petitioner Gajraj Singh was found lacking of integrity and devotion of duty. By the said order he was found that being public servant he violated Rules 4.1(i)(ii) and 4.2 and committed misconduct under Rule 5.0(i)(v) of the Conduct, Discipline and Appeal Rules. 1978 and, accordingly, the said authority ordered that the basic pay of the writ Petitioner presently in E-6 grade be reduced from Rs. 3,500 per month to Rs. 3200 per month with effect from April 1, 1990.

When this writ petition was initially moved before this Court on November 27, 1992, this Court dispensing the requirements of Rule 27 of the Rules, directed the Respondent No. 3, the General Manager (Personnel), Coal India Ltd., to allow the Petitioner to participate in the interview scheduled to be held on November 28, 1992, but directed the Respondents not to publish the result of the interview till December 12, 1992, with liberty to the petitioner to apply for extension of the interim order and also with liberty to the Respondents to apply for variation and/or vacation of the interim order upon notice to the Petitioner.

On December 15, 1992, the writ petition came up for further hearing in the presence of Mr. Monibhusan Sarkar, Mr. Alok Kumar Banerjee and Mr. Subimal Mukherjee, learned Advocates for the Respondents, when this Court observed as follows:

The concerned interview was to be held for promotion from E-7 to E-8 and, according to the Petitioner, on the basis of the findings of the Enquiry Commission dated September 21, 1989, the Petitioner having been exonerated from the charges, there could not be any impediment on the part of the Respondents to with raw promotion and to allow the Petitioner to sit in the Interview Board scheduled to be held on November 28, 1992.

On that date, this Court also recorded the statement of Mr. Manibhusan Sarkar, learned Advocate, to the effect that the entire promotion from E-7 to E-8 has been virtually stayed by the earlier order dated November 27, 1992, and this Court further recorded the submissions of Mr. Sarkar that the Petitioner has to qualify himself under Rule 4.7(c) of the Common Coal Cadre by putting at least three years service in a particular Grade, before he becomes eligible for consideration for promotion to the next higher grade.

According to Mr. Sarkar, the Petitioner not having been qualified himself for promotion by rendering at least three years service in a particular grade, the Petitioner has to qualify otherwise and there is still one year more for the Petitioner to qualify to appear in the interview.

At the material point of time of moving the writ petition, the writ Petitioner was General Manager (Administration) under Eastern Coal Fields Limited, Sanctoria and he has rendered unquestionable service under the Respondent authorities.

According to the Petitioner, he has served the department with integrity and efficiency to the satisfaction of the authority concerned and for which he has been rewarded in cash by the Chairman-cum-Managing Director, Eastern Coal Fields, and was also sent to United Kingdom as a team leader of Coal Miners and maintained unprecedented law and order during the Mahabir Colliery Crisis and he also maintained best I.R. during his tenure at Kanustoria area.

According to the Petitioner, he was fallen victim out of a malice or jealousy of some co-employee officers and received charge-sheet being Ref. No. ECL/C-5(D)/113/ 1010/12876 dated April 4, 1988/April 21, 1988 passed by J. N. Uppal, Chairman-Cum-Managing Director, stating that an enquiry would be held against the Petitioner under Rule 29 of the Conduct, Discipline and Appeal Rules, 1978 of Coal India Limited.

According to the Petitioner, the main charge contained in the said charge-sheet was lack of integrity and devotion to duty, which was unbecoming to public servant and violation of Rules 4.1(i)(ii) and 4.2 and committed misconduct under r 5.0(1)(5) of the Conduct, Discipline and Appeal Rules, 1978 of Coal India Limited.

According to the Petitioner the concerned authority alleged that he had committed gross misconduct and irregularities during the period from 1981 to 1983, inasmuch as, he put the case of extension of service after superannuation of Sri D. P. Sarkar, Head Clerk and Mr. M. M. Senapati, Ex. Clerk.

On the basis of the aforesaid charge-sheet, the Chairman-cum-Managing Director constituted a committee consisting of three Directors, Mr. R. S. Singh Director (P & P), Mr. S. K. Mondal, Director of Operation and Mr. J. Saren, Director (Personnel), to consider the E.C.L. Vigilance Committee''s Report, which put up the following views:

In conclusion, the Committee is of the opinion that the act and conduct of the officer does not call for any action to be taken against them. The gravity of the alleged offence does not need even cautioning to the three officers, as proposed by the Vigilance Department.

According to the Petitioner, in spite of the above background and report of the three Directors'' Committee, constituted by the Chairman-cum-Managing Director, Eastern Coal Fields Limited, wherein it was slated that the Petitioner was "not guilty", and the charge-sheet issued to the Petitioner calls for no action and not even cautioning to the Petitioner, although the authority concerned issued the impugned order, being Ref. No. ECL/C-5(D) 113/1010/ R-5 dated May 21, 1990, for reduction of basic pay from Rs. 3,500 per month to Rs. 3,200 per month, with effect from April 1, 1990, without specifying the period.

Mr. L. C. Bihani, appearing with Mr. Anami Sikdar, learned Advocates for the Petitioner in the first place submitted that as per Chapter III, Rule 27.1(i)(A) of the Conduct, Discipline and Appeal Rules, 1978, of Coal India Limited, the authority ordering the reduction of scale shall state the "period for which it is effective" and whether, on the expiry of the period, it will operate to postpone future increment or, to effect the employees seniority and. if so, to what extent.

Referring to the above Rule of the Coal India Limited, Mr. Bihani submitted that in the instant case it will be evident from the order dated April 21, 1990 that the authority concerned did not specify the period and, as such, no punishment for an indefinite period could be imposed by the Respondent authorities on the Petitioner, without specifying the period and the same cannot be acted upon and the Respondents are duty bound to give promotion to the Petitioner from E-7 grade to E-8 grade, in terms of earlier order passed by this Court on December 15, 1992.

In the second place, Mr. Bihani submitted that on the factual background and on the basis of the report disclosed hereinabove, the Chairman-cum-Managing Director had no material before him to pass the impugned order and the said order dated April 21, 1990, which is Annex. ''C to this petition, is honest in the eye of law.

In the third place, Mr. Bihani submitted that reduction of pay and at the same time non-grant of increment and/or promotion, being two aspects of the matter, no such punishment could be given simultaneously in the facts of the present case.

Mr. Bihani further submitted that the Petitioner''s promotion was due from E-6 grade to E-7 grade in April 1989 and after a lapse of 3 years, the Petitioner got promoted from E-6 to E-7 grade, when his junior officers, according to the seniority list Serial No. 10, was promoted from E-6 to E-7, in the year 1989 which is highly irregular.

Accordingly, Mr. Bihani submitted that the Petitioner was entitled to get promotion from E-7 to E-8 grade, as if, the impugned illegal order dated April 21, 1990, had not at all been passed by Sri S. P. Mathur, the then Chairman-cum-Manager of the Eastern Coal Fields Limited.

This Court having granted leave on June 24, 1993, for amendment by challenging the appellate order, which has been passed during the pendency of the writ petition, a supplementary affidavit was affirmed on July 16, 1993, challenging the appellate order dated December 18/19, 1991, communicated by the Deputy Chief Personnel Manager (EE), which runs as follows:

The appeal has been considered by the Chairman, Coal India Limited, who after taking into consideration the seriousness of the charge, especially its sinister implications in the context of the over-manning in ECL and the gravity of the offence, found the penalty just and fair and does not require any review.

Referring to the said appellate order, Mr. Bihani submitted that the appellate order not being "a speaking order", devoid of any reasons, should be struck down.

During the hearing of the writ petition, another supplementary affidavit was affirmed on October 8, 1993 and in paragraph 7 of the said supplementary affidavit, the names of the 15 officers, who had superseded the Petitioner had been given, which is set out below:

Sri S. J. Singh.

Sri S. K. Singh.

Sri D. H. Goswami.

Sri S. K. Banerjee.

Sri P. B. Rao.

Sri D. Srivastav.

Sri J. K. Ghosh.

Sri S. Singh.

Sri S. S. Mukherjee.

Sri B. N. Jha.

Sri B. Devi.

Sri N. L. Singh.

Sri R. K. Chowdhury.

Sri K. Kumar.

Sri D. R. K. Rao.

Lastly, Mr. Bihani submitted that the original order of punishment dated April 21, 1990 and the appellate order communicated through Memo dated December 18/19, 1991, cannot be sustained in law and should be set aside by this Hon''ble Court.

Mr. Moni Bhusan Sarkar, the learned Advocate, appearing for the Respondent Coal India authorities, has placed strong reliance on the affidavit-in-opposition affirmed on May 28, 1993, wherein the following statements have been made:

Paragraph 5(c):

Procedures relating to the promotion to the officer who has been kept under suspension and/or against whom vigilance/departmental action is pending, has been specifically provided in the Memo dated 19/27th June, 1979 being Annexure IV(2)(e) of the Common Coal Cadre. The said office Memo dated 19/27th June 1979 provides that -

The issue relating to procedure to be followed with regard to promotion of an officer who has been kept under suspension and/or against whom a vigilance/ departmental action is pending has been engaging the attention of the management for sometime past. Taking into consideration, the extent rules and orders of the Government of India in this regard the following decision has been taken:

(i) All orders for promotion will be issued by after vigilance clearance.

(iii) When an officer has been completely exonerated and he is subsequently promoted, his seniority should be fixed as if he had been promoted in accordance with the position assigned to him in the select list. Period of his eligibility for consideration for promotion to the next higher grade should be reckoned with reference to the date his immediate junior has been promoted. The pay of such an executive on promotion should be fixed nationally by allowing the intervening period during which the officers could not be promoted due to his suspension and/or pending departmental enquiry to be counted for increments in the higher grade, but no arrears would be admissible to him.

(v) Sometimes an officer might have been warned. The ''warning'' is not a penalty under Conduct. Discipline and Appeal Rules, 1978. This is administered by any authority superior to the executive in the event of minor lapses with a view to toning up efficiency and maintaining discipline. Where, however, a copy of warning is also kept in the Confidential Report dossier it will be taken to constitute an adverse entry and the officer so warned will have the right to represent against the same in accordance with the existing rules relating to communication of adverse remarks.

Paragraph 5(g):

While the writ Petitioner was functioning as Personnel Manager of Kanustoria Area of Eastern Coal Fields Limited committed gross misconducts and irregularities in the matter of extension of service after superannuation of Sri P. P. Sarkar Ex-Head Clerk and Sri N. N. Senapati Ex-clerk of Kanustoria Colliery as he failed to place the correct picture before the General Manager, Kanustoria Area on the basis of the age of the employee already determined by the duly constituted Age Determination Committee and on the basis of such extension one of the employees got employment after his superannuation under such circumstances by an office memorandum dated 14/21. 4.88 a charge-sheet was issued against the writ Petitioner. Since the reply of the writ Petitioner to the charge-sheet was not found satisfactory, enquiry was conducted against the writ Petitioner. The Enquiry Officer found the writ Petitioner guilty of the charges brought against him. Subsequently, the Chairman-cum-Managing Director, Eastern Coal Field Limited being the competent authority by order No. ECL: C-5(D): 113\\1010: R-5 dated April 21, 1990, awarded punishment of reduction of basic pay of the writ Petitioner from Rs. 3500 to Rs. 3200 per month with effect from 1st April, 1990. Be it mentioned hereto that at the time of awarding the punishment writ Petitioner was working as Dy. Chief Personnel Manager in E-6-grade.

After considering the facts of the present case and in view of the report dated September 21, 1989, submitted by the Committee consisting of three Directors, Mr. R. S. Singh, Director (P & P), Mr. S. K. Mondal, Director ol Operation, and Mr. J. Sarcn, Director (Personnel), I am of the view that though no charge has been established against the Petitioner, yet the improper order of reduction of basic pay dated April 21, 1990 was passed, without specifying any period and, as such, the said order is violative of Chapter I''ll, Rule 27.1(ii)(A) of the Conduct, Discipline and Appeal Rules, 1978 of Coal India Limited, and cannot be sustained.

Further, it appears before this Court that the Petitioner having been allowed to sit in the interview by the initial ex parte interim order dated November 27, 1992 and the said order having been modified on December 15, 1992, the Petitioner is entitled to get promotion on the basis of seniority from E-7 to E-8 grade with effect from March 24, 1993 and to maintain seniority position of the Petitioner, as it was prevailing in the year 1985, over and above the 15 persons, who have already been promoted by passing the Petitioner.

In the result, the impugned order of reduction of basic pay dated April 21, 1990, being Annexure ''C to this petition, and the appellate order communicated through the Memo of the Deputy Chief Personnel Manager (EE) dated December 18/19, 1991, are liable to be set aside.

Accordingly, the order of punishment dated April 21, 1990 and the appellate order dated December 18/19, 1991, are" set aside.

Let a writ in the nature of mandamus do issue commanding the Respondents and each one of them to forthwith give promotion to the Petitioner in grade E-8 with effect from March 24, 1993 and to maintain the inter se seniority, as it was prevailing in the year 1985.

The writ petition is allowed to the extent indicated above.

There will be no order as to costs.

Let xerox copy of operative part of this judgment be handed over to the learned Advocates for the parties upon observing all necessary formalities.