@JUDGMENTTAG-ORDER
M.Y. Eqbal, J.@mdashThe only question that falls for consideration in this writ application is whether denial of monetary benefits to the petitioner
while giving to the petitioner the retrospective promotion with notional seniority is justified?
2. The petitioner was appointed as Welfare Officer in 1985 in E-1 grade and, thereafter, he was given promotion to the next higher grade and
lastly in 1997 she was promoted to the post of Dy. Personal Manager in E-IV. After completing three years of experience in E-IV grade she
became entitled to promotion in E-V grade. The promotion to E-V grade is under the cluster concept which was introduced by Coai India Limited
in 1993 whereby and whereunder it was resolved that promotion from E-IV to E-V grade within cluster concept would be time bound and
automatic on completion of stipulated period as per Common Coal Cadre. However, by office order dated 20.3 2001 many persons in E-IV
grade who were juniors to tbe petitioner, were given promotion but the petitioner was deprived of her legal right and her case was kept in a state
of suspended lamination. The petitioner then represented before the Management of the respondents and she came to know that she was not given
promotion on the ground that a vigilance case is contemplated against her. The petitioner then filed the instant writ application challenging the
authority of the respondents to debar her from being promoted to E-V grade.
3. It appears that during the pendency of the writ petition promotion order of the petitioner has been issued by the respondents vide office order
dated 22.5.2002 and she was also given notional seniority and notional fixation of pay with effect from 22.3.2001 i.e. the date of issuance of the
first order of promotion under cluster concept but without any financial benefits. The petitioner by filing an amendment petition has challenged the
aforesaid office order on the ground that denial of financial benefits with effect from the date of promotion is wholly illegal and unjustified.
4. Respondents'' case is that as per the provisions of Common Coal Cadre applicable to the Executive cadre employees of Coal India Ltd. and its
subsidiaries all promotion orders are issued only after obtaining vigilance clearance from the subsidiary companies where the recommended
Executives are posted. While furnishing vigilance clearance in respect of the recommended Executives of Central Coalfield Limited by the
departmental Promotion Committee including the petitioner it was intimated to Coal India Limited by CCL vide letter dated 27.3.20C1 that a
disciplinary proceeding for major penalty has been contemplated against the petitioner in the vigilance case. Hence the Petitioner was not entitled to
promotion to E-V grade from the date her batch-mates were promoted Le. on 22.3.2001. It is stated that on closure of the case pending against
the petitioner and after vigilance clearance the petitioner was promoted to the post of Personal Manager in E-V grade with notional seniority and
notional fixation of pay without any financial benefits as per the rules.
5. I have heard Mr. P.K. Prasad, learned counsels appearing on behalf of the petitioner and Mr. A.K. Das, learned counsel appearing for the
respondents.
6. Mr. Prasad assailed the impugned decision of the respondents denying monetary benefits to the petitioner while giving retrospective promotion
as being illegal and contrary to the settled principals of law. Learned counsel submitted that the mala fide of the respondents is evident from the fact
that it is only when the petitioner approached this Court by filing the instant writ application, the respondents issued promotion order dated
22.5.2002 giving, retrospective promotion with notional seniority but without any financial benefit. Learned counsel submitted that admittedly no
disciplinary proceeding or any proceeding against the petitioner was pending on the date when the persons junior to her have been given promotion
and further that the petitioner was denied promotion only on the plea of contemplation of a proceeding against her. Learned counsel put heavy
reliance on the decision of the Supreme Court in the case of Union of India Vs. K.V. Jankiraman, etc. etc., .
7. On the other hand, Mr. A.K. Das, learned counsel appearing for the respondents submitted that according to the provisions of Common Coal
Cadre applicable to the executives of Coal India Limited and its subsidiaries all promotion orders are issued only after obtaining vigilance clearance
from the Subsidiary companies. The petitioner was not given promotion in 2001 because it was reported that disciplinary proceeding was
contemplated against the petitioner. The promotion of the petitioner was held up because of contemplation of charges against her. According to the
learned counsel the petitioner was rightly given promotion with notional seniority in accordance with the provisions contained in office
memorandum dated 19/27.6.1979.
8. First of all I will deal with the office memorandum dated 19/27,6.1979 issued by Coal India Limited on the basis of which the petitioner was
denied monetary benefits. The said office memorandum reads as under:
COAL INDIA LIMITED
COAL BHAWAN
10 Netaji Subhash Road,
Calcutta 700 001
No. C-5A/50972 (Vo. 1) Pt/1334.
OFFICE MEMORANDUM
Sub : Promotion to a higher ; post of an officer who has been kept under suspension and/or against whom vigilance/departmental action is pending.
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 some time past. Taking into consideration the
extant rules and orders of the Government of India in this regard the following decision has been taken :
(a) All orders for promotion will be issued only after vigilance clearance.
(b) An executive, who has been placed under suspension pending enquiry and/or against whom departmental/vigilance proceedings are pending,
will be promoted, if selected and placed in the select list by a DPC, only after completion of the proceedings and his complete exoneration of the
charges. Such an officer shall be promoted In the first vacancy that may be available immediately after his complete exoneration with prospective
effect.
(c) 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
notionally 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. [Corrected as per No. C-5(A)/50972 (Vo. I)
Pt./1507 dated 10.7.1979].
(d) ""Complete exoneration"" shall mean conclusion of departmental proceedings without imposing any prescribed penalty, as per Conduct,
Discipline and Appeal Rules, out imposing any prescribed penalty, as per Conduct, Discipline and Appeal Rules.
(e) 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.
(f) Where, however, a departmental proceeding has been completed and it is considered that the officer concerned deserves to be penalised, he
should be awarded one of the recognized penalties according to the Conduct, Discipline and Appeal Rules, 1978. In such a situation a recordable
warning should not be issued as it would, for all practical purposes, amount to ""censure"" which is a formal punishment under the Rules. In the
circumstances, if it is considered, after conclusion of disciplinary proceedings that some blame attaches to the officer concerned which necessitates
cognizance of such fact, the disciplinary authority should award the punishment of ""censure"" at least. If the intention of the disciplinary authority is
not to award a penalty, then no recordable warning should be awarded.
(g) If a recordable warning has already been issued as a result of disciplinary proceedings before issue of this Office Memorandum it should be
treated as ""censure"".
(h) Where departmental proceedings have ended with the imposition of a minor or major penalty, the recommendation of the Departmental
Promotion Committee in favour of the executive whose promotion was withheld due to his suspension and/or pending departmental enquiry will not
be given effect to but his case can be considered for promotion by the next DPC when it meets after conclusion of the Departmental proceedings.
2. These instructions will come into force with immediate effect.
9. From bare reading of the aforesaid provisions it is clear that promotion of Executive is withheld only in cases where such officer is under
suspension pending inquiry or against whom departmental/vigilance proceedings are pending and he shall be promoted in the first vacancy that may
be available immediately after his complete exoneration with prospective effect. This memorandum further provides that when an executive has
been completely exonerated and he has been 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. However, pay of such an executive on promotion should be fixed notionally by allowing the
intervening period during which the officer could not be promoted due to his suspension and/or pending departmental inquiry but no arrears would
be admissible to him. This memorandum, however, does not contain the circumstance when vigilance clearance shall be withheld.
10. Exactly a similar memorandum issued by the Government of India (Department of Personnel & Training) on the subject of promotion of
officers came for consideration before the Supreme Court in K.V. Jankiraman''s case (supra). In that memorandum also there was a provision that
cases of officers (a) who are under suspension or (b) against whom disciplinary proceeding is pending or decision has been taken by the
competent disciplinary authority to initiate disciplinary proceeding or (c) against whom prosecution has been launched in a Court of law or action
for prosecution has been issued, are considered for promotion by the Departmental Promotion Committee at the appropriate time but the findings
of the Committee are kept in sealed cover to be opened after the conclusion of the disciplinary/court proceedings.While the findings are kept in the
sealed cover, the vacancy which might have gone to the officer concerned, is filled only on an officiating basis. If on the conclusion of the
departmental/court proceedings the officer concerned is completely exonerated and where he is under suspension, it is held that the suspension
was wholly unjustified, the sealed cover is opened and the recommendations of the DPC are acted upon. If the officer could have been promoted
earlier, he is promoted to the post which is filled on an officiating basis, the officiating arrangement being terminated. On his promotion, the officer
gets benefit of seniority and fixation of pay on an notional basis with reference to the date on which he would have been promoted in the normal
course but for the pending disciplinary/court proceedings, however, no arrears of salary are paid in respect of the period prior to the date of actual
promotion.
11. The question that came for consideration before the Supreme Court in the above referred case are : (i) what is the date from which it can be
said that disciplinary/ court proceedings are pending against an employee? (ii) What is the course to be adopted when the employee is held guilty in
such proceedings if the guilt merits punishment other than that of dismissal? (iii) To what benefit the employee who is completely and partially
exonerated is entitled to and from which date?
12. Answering the question their lordships held that if on the date on which the name of a person considered by the DPC for promotion to higher
post, such person is neither under suspension nor has any departmental proceeding been initiated against him, his name, if he is found meritorious
and suitable, has to be brought in the select list and the ""sealed cover procedure"" cannot be adopted. The recommendations of the DPC can be
placed in a ''sealed cover; only if on the date of consideration of the name for promotion; the departmental proceeding had been initiated or were
pending or on its conclusion, final orders had not been passed by the appropriate authority. Their lordships observed as under :
On the first question, viz. as to when for the purposed of the sealed cover procedure the disciplinary/ criminal proceedings can be said to have
commenced, the Full Bench or the Tribunal has held that it is only when a charge-memo in a disciplinary proceedings or a charge-sheet in a
criminal prosecution is issued to the employee that it can be said that the departmental proceedings/criminal prosecution is initiated against the
employee. The sealed cover procedure is to be resorted to only after the charge-memo/charge-sheet is issued. The pendency of preliminary
investigation prior to that stage will not be sufficient to enable the authorities to adopt the sealed cover procedure. We are in agreement with the
Tribunal on this point. The contention advanced by the learned counsels/or the appellant-authorities that when there are serious allegations and it
takes time to collect necessary evidence to prepare and issue charge-memo/charge-sheet, it would not be in the interest of the purity of
administration to reward the employee with a promotion, increment etc., does not impress us. The acceptance of this contention would result in
injustice to the employees in many cases. As has been the experience so far, the preliminary investigations take an inordinately long time and
particularly when they are initiated at the instance of the interested persons, they are kept pending deliberately. Many times they never result in the
issue of any charge-memo/charge-sheet. If the allegations are serious and the authorities are keen in investigating them, ordinarily it would not take
much time to collect the relevant evidence and finalise the charges. What is further, if the charges are that serious, the authorities have the power to
suspend the employee under the relevant rules, and the suspension by itself permits a resort to the sealed cover procedure. The authorities thus are
not without a remedy.
13. The law laid down by the Supreme Court in Jankiraman''s case (supra) has been following in another case decided by the Supreme Court in
the case of Union of India and Others Vs. Dr. (Smt) Sudha Salhan, . where their lordships held that if on the date on which the name of the person
considered by the DPC for promotion to the higher post, such person is neither under suspension nor has any departmental proceeding been
initiated against him, his name, if he is found meritorious and suitable, has to be brought on the select list and the; ''sealed cover procedure'' cannot
be adopted.
14. A similar question arose before this Court in the case of Manoj Kumar Singh v. Coal India Limited, CWJC No. 624/ 2001, where this Court
held that promotion of an officer cannot be withheld merely because a departmental proceeding was initiated against him after the Departmental
Promotion Committee considered his case for promotion.
15. In the instant case, as noticed above, inspite of the petitioner fulfilling all the requirements and criteria for promotion under clusture concept her
name was left out from the promotion order dated 22.3.2001. The petitioner immediately filed representation for knowing the reason and she came
to know that vigilance clearance was withheld because a vigilance case was contemplated against her.
16. In the counter affidavit filed by the respondents the only stand taken is that vigilance clearance was not given only because a disciplinary
proceeding for major penalty was contemplated against her. The respondents have not in any of the affidavits, have stated that a vigilance case
was, in fact, pending against the petitioner muchless even preliminary inquiry was pending against the petitioner or any show cause or charge sheet
of contemplated action was pending against her. One more interesting point is that in the light of the principles laid down by the Supreme Court in
Jankiraman''s case (supra) the respondents have issued another office memorandum dated 14.5.2002 clarifying and prescribing the circumstance
under which grant of vigilance clearance shall be withheld. This office memorandum provides that grant of vigilance clearance shall be withheld only
on the following grounds :
(1) Officers under suspension.
(2) Officers in respect of whom prosecution for criminal charge is pending or sanction for prosecution has been issued or a decision has been taken
to accord sanction for prosecution.
(3) In the case of a preliminary inquiry, either by; the CBI or departmental agency, the competent authority, on consideration of the result of
investigation, has formed the opinion that a charge sheet may be issued on specific imputations for departmental action, and
(4) In case of a regular case the competent authority has decided to accord sanction for prosecution of the officer in Court.
This memorandum further clarifies that until the competent authority arrives at such a conclusion the officer may be treated at par with others in the
matter of promotion, confirmation etc.
17. Admittedly neither the petitioner was under suspension nor against his a prosecution for criminal charge was pending or sanction for
prosecution was issued or even preliminary inquiry either by CBI or departmental agency was pending or any opinion was formed for serving
charge sheet upon the petitioner. In my considered opinion, therefore, denial of promotion of the petitioner along with others was absolutely illegal,
arbitrary, capricious and malafides.
18. The next question that arose for consideration is whether in such circumstance while giving promotion to the petitioner with retrospective effect
with notional seniority, denial of monetary benefits by the respondents is justified? The only stand taken by the respondents is that as per the
provisions contained in the office memorandum dated 19/27.6.1979 the petitioner became entitled for notional seniority/notional fixation of pay but
without any arrears of pay.
19. As discussed above a similar provision contained in the office memorandum issued by the Union of India was considered by the Supreme
Court in Jankiraman''s case (supra). Rejecting the contention of the respondents that a person cannot be allowed to draw benefit of the post the
duty of which he has not discharged under the normal rule of ''no work no pay''. Their lordships observed :
We are, therefore, broadly in agreement with the finding of the Tribunal that when an employee is completely exonerated meaning thereby that he
is not found blameworthy in the least and is not visited with the penalty even of censure, he has to be given the benefit of the salary of the higher
post along with the other benefits from the date on which he would have normally been promoted but for the disciplinary/criminal proceedings.
However, there may be cases where the proceeding, whether disciplinary or criminal, are, for example, delayed at the instance of the employee or
the clearance in the disciplinary proceedings or acquittal in the criminal proceedings is with benefit of doubt or on account of nonavailability of
evidence due to the acts attributable to the employee etc. In such circumstances, the concerned authorities must be vested with the power to
decide whether the employee at all deserves any salary for the intervening period and if he does, the extent to which he deserves it
20. In the light of the ratio laid down by the Supreme Court sub-para (c) of the office memorandum dated 19/27th June, 1979 contained in the
Common Coal Cadre, is liable to be modified as the same cannot be applicable in cases like in hand.
21. Taking into consideration the entire facts of the case and the law discussed hereinabove, that part of the impugned letter dated 26.7.2002
whereby while giving retrospective promotion with notional seniority denied monetary benefits to the petitioner with effect from 22.3.2001, is
quashed and jt is held that the petitioner is entitled to all the monetary benefits of the promoted post with effect from 22.3.2001. The respondents
are, therefore, directed to pay to the petitioner the entire monetary benefits of the promoted post (E-V) grade with effect from 22.3.2001.
