Delhi High Court
Ravindra Kumar Sood vs Ntpc & Ors on 14 July, 2011
Author: Suresh Kait
Bench: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29th April,2011
Judgment delivered on: 14th July,2011
+ W.P.(C) No.4566/1998
RAVINDRA KUMAR SOOD ..... Petitioner
Through: Ms. Tinny Kapoor for
Ms. Richa Kapoor, Advocate.
Versus
NTPC & ORS ...... Respondents
Through:Mr.S.K. Taneja, Sr.Advocate
With Mr. Rajesh Gupta and Anant Kumar
Sinha, Advs.
+ W.P.(C) No.5973/1998
RAVINDRA KUMAR SOOD ..... Petitioner
Through: Ms. Tinny Kapoor for
Ms. Richa Kapoor, Advocate.
Versus
NTPC & ORS ...... Respondents
Through:Mr.S.K. Taneja, Sr.Advocate
With Mr. Rajesh Gupta and Anant Kumar
Sinha, Advs.
Page 1 of 79
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
SURESH KAIT, J.
1. Vide instant writ petition the Petitioner has sought relief as under:-
(a)"Directing the Respondent to grant promotion to the Petitioner as under:-
Controller Grade II 1.1.87
Controller Grade I 1.1.90
A.E. 1.4.93
Sr.A.E. 1.4.96
Engineer 1.4.97
And release all financial and other consequential benefits w.e.f. due dates and also fix the seniority, increments arrears etc. etc. for which the Petitioner is entitled from retrospective effect."
2. The Petitioner joined National Thermal Power Corporation as diploma training on 13.12.82. Thereafter, he was appointed as Junior Controller w.e.f. 13.12.83.
3. Case of the Petitioner here is that on 07.11.1986 a fete was organized by the wives of the officers of Korba Super Thermal Power. In the said fete several gambling games were arranged as an entertainment. At that point of time the Page 2 of 79 Petitioner being President of the association boycotted the fete as a mark of discontent against gambling and their extravaganza.
5. Vide order dt. 13.11.1986 the Petitioner was served with a charge-sheet by the Management at Korba, alleging that Petitioner was shouting slogans at the entrance gate of society where the fete was organized.
6. The Petitioner submitted his reply to the aforesaid memo/charge-sheet dt. 13.11.1986. The reply was considered, however, the Management was not satisfied with the reply, consequently, an inquiry officer was appointed to hold an inquiry. The Petitioner was informed by the Inquiry Officer to attend the proceedings on 02.06.1987. Since the Petitioner was sick on 02.06.1987 he submitted an application along with medical certificate and requested to fix some other date for conducting the inquiry. Instead of considering the request of the Petitioner, the whole inquiry was conducted in one day and all the prosecution witnesses were examined on that very day. Though, subsequently Petitioner made a request and preferred that at least cross-examination of the prosecution witnesses Page 3 of 79 should be allowed to him. But, the said request was rejected by the Respondent.
7. Vide order dt. 12/16.12.1987 the Petitioner was awarded punishment of "withholding one increment with cumulative effect." As submitted by the Petitioner the aforesaid punishment was imposed deliberately to withhold the promotion of the Petitioner from the date i.e. 01.01.1987, when the Petitioner was entitled to be promoted as Controller Grade II.
8. On 13.01.1988, the Petitioner filed a statutory appeal against the order of Disciplinary Authority. During the pendency of the aforesaid appeal an agreement was signed between the Petitioner and the Respondent on 16.01.1989 wherein certain point of understanding were mutually agreed between Unions and Management.
9. In spite of decision taken in the said meeting which was held on 16.01.1989, neither the case against the Petitioner was closed nor was the Petitioner promoted as Controller Grade II w.e.f. 01.01.87.
Page 4 of 79
10. Being aggrieved the Petitioner submitted his representations on various dates i.e. 03.07.1990, 29.06.1990, 01.11.1991, 01.09.1992, 14.11.1992, 20.04.1993, 22.04.1993, 28.04.1993, to the Higher Authorities but none of them responded. However, the Petitioner was informed vide letter dt. 18.02.1992, that this case has been referred to NCR-HQ for appropriate action. At last, the Petitioner approached to High Court of Punjab and Haryana at Chandigarh by filing CWP No.8930/1993 wherein vide order dt. 27.07.1993 High Court of Punjab and Haryana was pleased to direct to dispose of the appeal dt. 13.01.1988 within three months and further directed that if appeal succeeds all consequential benefits will be given to the Petitioner within reasonable time. Consequent upon the order of High Court of Punjab & Haryana, the Appellate Authority had disposed of appeal modifying the earlier punishment of "withholding one increment with cumulative effect" to "without cumulative effect" w.e.f. 01.01.1988.
11. Being aggrieved by the order of Appellate Authority, the Petitioner filed a review appeal on 07.03.1994 under Rule Page 5 of 79 33 NTPC CDA Rule 1977, for seeking review of order of Appellate Authority. During the pendency of the above said review appeal, the Petitioner was debarred once again for consideration of Asstt. Engineer in DPC-94.
12. The Review Authority had also kept pending review appeal for about two years against the Rule 23 of the NTPC- CDA Rule which provides for disposal of a review appeal within six months. Due to the said delay, the Petitioner was again debarred in DPC-95.
13. Having no other option, the Petitioner was constrained to file another writ petition before this Court bearing CWP No. 1422/1995 for grant of promotion with all consequential benefits w.e.f. due date and also sought direction against the Respondent to dispose of the review appeal dt. 07.03.1994 preferred by the Petitioner. Vide order dt. 21.03.1996, this Court had disposed of the said writ petition while observing as under:-
"Learned counsel for the Respondents states that he has instructions to say that the reviewing authority has considered the Petitioner‟s case and quashed orders annexures II and IIIA dt. 12/16th Page 6 of 79 December, 1987 and 1st January, 1994 respectively and has directed re-open the enquiry proceedings held under Rule 25 of the NTPC CDA Rules, from the stage of 2nd June, 1987, namely, of giving the Petitioner due opportunity to cross-examine all the management witnesses and to decide the departmental proceedings in accordance with the law after supplying copy of the report of the enquiry to the Petitioner. It is also stated that Shri. S.S.Mediratta, Senior Manager (OS) of N.C.R. Headquarter has been nominated to conduct the enquiry from the stage of aforementioned.
Learned counsel for the Respondent states that subject to the Petitioner cooperating Respondents will ensure to have the departmental proceedings completed within a period of six months.
Learned counsel for the Petitioner states that in view of the above he has instructions to withdraw the petition with liberty reserved to the Petitioner to approach the court again in case necessity thereon would arise and in case on culmination of the departmental proceedings his claim for promotion from the due date is not favourably considered. It is also stated that the question as regards Petitioner‟s claim for promotion from the due date and during the pendency of the departmental proceedings be left open with liberty to reserved to the Petitioner to approach the court in case necessity thereof would arise in future.
Leave and liberty granted. The petition is disposed of as withdrawn."
14. After reopening of enquiry, the Respondents even failed to conduct the enquiry within six months, and thus as Page 7 of 79 alleged by the Petitioner, again depriving the Petitioner of his legitimate right of proper consideration of his case in DPC 1997 also.
15. Vide order dt. 09.12.1997 the Disciplinary Authority had issued an order "Exonerate" the Petitioner from charges. Accordingly, the Petitioner again submitted his representation for promotion w.e.f. 01.01.87, thereafter, continued to represent but the Respondent kept on pending.
16. As claimed by the Petitioner, he is entitled for his promotion and subsequent promotions along with other consequential benefits as under:-
"Post Promotion as Promotion given Promotion From to be released w.e.f.
______ ___________ _____________ ________________
Jr.Controller Controller
Grade II 1.1.90 1.1.87
Controller Supervisor
Grade II Grade I 1.4.93 1.1.90
Supervisor Asstt. Engineer
Grade I Grade I 1.4.93 1.4.93
Asstt. Engr. Sr.Asstt. Engr.
(Ern.) (Elect. Ern.) 1.4.96
Sr.Asstt. Engineer 1.4.97
Engineer
Page 8 of 79
17. During the pendency of the aforesaid
representation, vide order dt. 29.07.1998, the Petitioner was promoted as Sr. Supervisor (Materials). As alleged by the Petitioner, it was surprise for him and the Respondent ignoring his promotion from the due dates as per the channel of promotion applicable to Petitioner. Petitioner being Diploma in Engineering (Electrical) and therefore as per his channel of promotion he was to be promoted to Asstt. Engineer but due to the unlawful and mala fide acts the Respondent failed to consider Petitioner in interview held in DPC-93.
18. During the pendency of the instant writ petition the Respondent issued show cause notice to the Petitioner saying, why the punishment of censure is not to be imposed upon the Petitioner. The same was challenged by filing CM No.11125/98 and the same was disposed of vide order dt. 18.11.1998 as under:-
"18.11.98 Present: Ms.Richa Kapoor for the Petitioner Mr.S.K.Taneja for the Respondents.
CM No. 11125/98 in CW No. 4566/98 Page 9 of 79 The Petitioner has filed the above petition claiming promotion during the pendency of the writ petition. According to the Petitioner, a show cause notice has been issued by the Reviewing Authority. The Petitioner has filed a petition for stay of the show cause notice issued by the Reviewing Authority. The petition for stay of show cause notice is beyond the scope of the writ petition. Reserving the rights of the Petitioner agitating the same in a separate application, this application is dismissed."
Accordingly, the Petitioner filed another writ petition No.5973/98 which is pending for adjudication.
19. During arguments, as was pointed out that the reply to the petition No.4566/98 and other pleadings are complete only in the subsequent writ petition No.5973/98. Therefore, for the purpose of disposal, it is decided to pass a common order in both the writ petitions.
20. The Civil Writ Petition No.5973/1988 is a verbatim of CWP No. 4566/98, except the Petitioner has sought direction to quash the show cause notice dt. 03.11.1988.
21. It is pertinent to mention here that out of 54 paras of the writ petition; upto para 43 it is a repetition of petition No.4566/1998 only. Further pleadings start from para 51 onwards. The Petitioner has submitted that the advance copy Page 10 of 79 of CWP 4566/98 was served to the Respondent and vide order dt. 10.09.1998, Rule was issued. The Petitioner filed PF on 10.09.1998 itself and notice of Rule was dispatched from the Registry to Respondent No.1 to Respondent No.3 for 13.10.1998.
22. As alleged by the Petitioner, the said notices have been received by the Respondents and same had been entered in their dak receiving record register at its corporate office at Core 7 Scope Complex Lodhi Road, New Delhi at Sl.No.1 on 22.10.1998. The notice received by R-1 to R-3 has been signed by Sh. B.K.Yadav and employee of law department of the Respondent in dispatch register. Knowing fully, the said writ petition will come for hearing on 30.10.1998, the Respondent issued show cause notice dt. 03.11.1998, wherein Reviewing Authority, Executive Director NCR who is Respondent No.2 in the writ petition No.4566/98, illegally, unauthorized to harass the Petitioner have called upon to show cause as to why the penalty of „censure‟ should not be imposed upon the Petitioner. The show cause notice dt. 03.11.1998 is reproduced as under:-
Page 11 of 79
"Dt.: 3rd Nov.98 Notice Sh.R.K.Sood Supervisor GR-I (Matis.) EMP. No.21361 BTPS/NTPC New Delhi Through:-GM BTPS Q1 Whereas the Disciplinary Authority vide his order No.BTPS/C&M/97-90/1 dt. 09.12.1997 had exonerated you from the charges leveled against you vide charge sheet No. KS:PERS:ESTT:PF:21361:2027 dt. 12/13.11.1986 Q2 AND WHEREAS I have called for the entire record of the case in the capacity of Reviewing Authority, exercising my powers under Rule 33 of NTPC Conduct, Discipline and Appeal Rules, 1977;
Q3 AND WHEREAS after going through the records relating to the case including the proceedings and the report of the Enquiry Officer, I have observed that the Disciplinary Authority while passing the order has overlooked the fact that there is sufficient material on the basis of which the Enquiry Officer has given his findings and that 3 of the Articles of charges (Articles 1,3, & 6) are proved substantially, i.e. Misconduct under Rule 7, Rule 5 (5), 5 (12), 5 (20) and 5 (21) of the NTPC Conduct, Discipline & Appeal Rules accordingly stand proved.
Q4 AND WHEREAS the charges which have been proved are of very serious nature involving disturbance and disruption of an official function, disorderly and indecent behavior within the premises of the Company, acts subversive of discipline and abetment thereof, the Disciplinary Authority seems to have failed to appreciate the gravity of these charges.
Page 12 of 79
Q5. AND WHEREAS considering all these aspects and the material available on record and after proper application of mind, I am of the view that this is not a fit case for exoneration but warrants punishment.
Q6. Through the charges proved are of a serious nature, taking a lenient view this time, I as Reviewing Authority, propose to impose the penalty of "CENSURE" in terms of Rule 23 (a) of NTPC Conduct, Discipline and Appeal Rules and issue this notice to you to show cause within 15 days from the date of receipt of this notice as to why the penalty of "CENSURE" should not be imposed upon you. A copy of the report of the Enquiry Officer Sh.S.S.Mediratta (9 pages) is enclosed.
Q7. Please note that in case I do not receive any reply of this show cause notice within stipulated period of time as mentioned hereinabove, I shall presume that you have nothing to say and shall pass necessary orders accordingly.
Q8. This notice is being issued in duplicate. Please acknowledge receipt on the duplicate copy.
(J.N.SINHA) REVIEWING AUTHORITY EXECUTIVE DIRECTOR (NCR)"
23. The Respondent in their reply while taking preliminary objections stated that there was no violation by the NTPC Conduct, Discipline and Appeal Rules, 1977 (as amended) which were applicable and governed the service Page 13 of 79 condition of Petitioner with the Respondent No.1 Corporation.
It is further submitted the Respondent No.2 Executive Director, is the Reviewing Authority in the matter of disciplinary cases (minor and major penalties) and under Rule 33 provided that the Reviewing Authority may call for the record of the case within six month of the date of the final order and after Reviewing the case passed such order thereon as may deem fit. The Rule 33 further provides that if the Reviewing Authority proposes to impose enhanced penalty and an enquiry has already been held in accordance with the provision of Rule 25, the Reviewing Authority shall give show cause notice to the employee and Reviewing Authority shall pass the final order after taking into account the representation. In the instant case the Reviewing Authority had exercised its jurisdiction under Rule 33 of NTPC Conduct, Discipline & Appeal Rules 1977. The Reviewing Authority called the record of the case on 19.05.1998 i.e. within period of six months and after examining the enquiry report and the entire record of the proceedings, the Reviewing Authority had Page 14 of 79 issued show cause notice dt. 03.11.1998 under Rule 33 of NTPC CDA Rule, 1977.
24. In reply to para 3 to 34 of the writ petition the enquiry proceedings were ordered to be taken on the basis of the charge sheet dt. 30.11.1986. Therefore, the Petitioner was not entitled to be considered for promotion in view of the charge-sheet issued against him. In response to para 36 of the writ petition, Respondents submitted that the enquiry was completed within period of six months. They denied that the Reviewing Authority kept the decision pending for a year and nine months to victimize further and intentionally violated the order of this Court passed on 21.03.1996. It is submitted, the Reviewing Authority called for record on 19.05.1998, i.e. within a period of six months and after examining the enquiry report and record of entire proceedings, the Reviewing Authority, within its authority and power, issued the show cause notice dt. 03.11.1998. In reply to para 38 they denied that after the issue of order dt. 09.12.1997, by disciplinary authority, the Petitioner was entitled for his promotion from 01.01.1987 automatically, in fact the NTPC CDA Rules, 1977 provides the Page 15 of 79 examination of case by the Reviewing Authority and said Reviewing Authority had exercised its power under Rule 22 of the stated Rules and thus within his power to impose penalty and differ with the decision of the disciplinary authority in the matter and this was in continuation of the proceedings initiated on the charge-sheet dt. 30.11.1986. They emphatically mentioned that Petitioner cannot say that charges against him have been quashed and consequently claimed his promotion from 01.01.1987 on that basis alone.
25. In reply to para 39 they submitted that departmental proceedings, on the basis of charge-sheet dt. 30.11.1986 was still pending and as such the question of considering the Petitioner for promotion w.e.f. 01.01.1987 does not arise. In response to para 41 they submitted that Petitioner‟s case for promotion was considered by the corporate office of R-1 and was promoted as Controller Grade-
II w.e.f. 01.01.1990, and Supervisor Grade-I from 01.04.1993 as per the Rule. They further denied that Petitioner was entitled to be promoted to the post of Asstt. Engineer, his case was not considered in interview held in DPC-93.Page 16 of 79
26. Lastly, in response to para 53-54 they denied that the copy of the writ petition was served in the office of ED (NCR) who was the Reviewing Authority. Further they submitted the Reviewing Authority had merely exercised the jurisdiction under Rule 33 of the NTPC CDA Rules, 1977.
27. The Respondents had filed additional affidavit also.
They submitted that the Petitioner was charge-sheeted by memorandum dt. 12/13.11.1986 for misconduct. Six imputation of misconduct leveled against him. Enquiry was proposed to be held for such misconduct. The Enquiry Officer found guilty of charge-sheet and accordingly a punishment of withholding one increment with cumulative effect w.e.f. 01.10.1988 was imposed upon him. In appeal vide order dt. 01.01.1994 the aforesaid punishment was moderated by altering „with‟ to „without‟ in the punishment thus the punishment was to withhold one increment without cumulative w.e.f. 01.10.1988.
28. One more fact reveled from the additional affidavit filed by the Respondents that another memorandum of charge-sheet was issued against the Petitioner on 01.03.1998. Page 17 of 79 Vide order dt. 24.09.1998 the Petitioner was „removed from service‟. But, in appeal the order of „removal from service‟ was modified into „censure‟ by orders dt. 30.12.1988.
29. Further it is submitted by virtue of clause 2.8.3 of policy of promotion of Respondent‟s corporation, the Petitioner could have been considered for promotion only after one year, after the effective date of punishment. Since punishment had been imposed on 30.12.1988, therefore the bar of promotion as per the Rules continued till 30.12.1989. Accordingly, by order dt. 01.07.1990 the Petitioner was promoted w.e.f. 01.01.1990 Controller Grade-II, which is a S-2 post. The next promotion was due as per the Rule after three years and accordingly by order dt. 25.06.1993 the Petitioner was duly promoted to the next higher post as Supervisor Grade-I (material) which is S-3 post, w.e.f. 01.04.1993.
30. The Respondent, further submits that the Petitioner was again due for being considered for promotion in 1996. By this promotion from S-3 post, the Petitioner could not have been promoted to E-1 (Executive Cadre Post) directly, which is inter cadre post for which recommending authority is the Page 18 of 79 Regional level DPC or he could have been promoted S-4 which is intra cadre post for which recommending authority was project DPC.
31. The Respondent further submits, on 07.03.1994 the Petitioner filed review under Rule 33 of NTPC CDA Rules against order dt. 01.01.1994 of the Appellate Authority, by which the order of punishment imposed on the Petitioner, was moderated. Reviewing Authority vide its order dt. 19.03.1996, reopened the enquiry in respect of charge-sheet dt. 12/13.11.1986. Since, the enquiry had been reopened the disciplinary proceedings against the Petitioner remained pending. Vide order dt. 09.12.1997 the disciplinary authority exonerated the Petitioner. However, the disciplinary proceedings against the Petitioner remained pending upto 09.12.1997.
32. It is submitted that as regards the promotion of the Petitioner from S-3 to E-1 post, the Petitioner was duly considered in the year 1996-1997 as well as by the Regional Level DPC. The Petitioner as per the pre-requirement appeared in mandatory test and interview for the same. The Page 19 of 79 Regional Level DPC did not recommend his name for promotion to E-1 cadre in both the year i.e. 1996 and in 1997. The result of the Petitioner qua his recommendation was kept in sealed covers as disciplinary proceedings against the Petitioner were going on till 29.12.1997. In the year 1998 the Petitioner did not give his consent for transfer upon promotion, as per the then requirement of management for considering candidates for promotion to E-1 Cadre, therefore, the name of the Petitioner was not forwarded to the Regional level DPC.
33. Since the year 1999 onwards the Petitioner did not come forward for test or interview which, inter alia, is mandatory pre-requisite for being promoted from S-3/S-4 to E-1 Cadre, therefore, the name of the Petitioner could not be considered after the year 1999.
34. As regards the promotion of the Petitioner from S-3 to S4 post the Petitioner was duly considered by the Project Level DPC along with other eligible candidates in the year 1996-1997. But, due to the pendency of departmental proceedings against him, he was not recommended for promotion to S-4 post by Project DPC. However, in the year Page 20 of 79 1998 after his exoneration by order dt. 09.12.1997 the Petitioner was promoted to S-4 Grade by order dt. 28.07.1998 w.e.f. 01.01.1998.
35. First of all, I will deal with the issue raised in the first writ petition i.e. CWP No.4566 of 1998.
36. Ms. Richa Kapoor, learned counsel for the Petitioner has raised the following issues:
(a) That since in the charge-sheet relating to fate case, the disciplinary authority passed an order dt. 16.12.1987 of withholding of one increment with cumulative effect, therefore, one year promotion was withheld i.e. upto December, 1988.
(b) In the another disciplinary case out of alleged suppression of fact i.e. while taking employment with the Respondent the Petitioner have failed to inform about his previous offer of appointment, penalty of centure was issued vide order dt. 30.12.1988 and thus the Management has withheld promotion for another one year i.e. December, 1999.Page 21 of 79
(c) The Respondent Management have given reason of withholding of promotion as above relying upon Rule 2 & 3 of 1982 Rules of promotion policy of the Respondent, which stipulates that promotion is to be withheld in case of minor penalty for one year from the date of punishment.
(d) The Respondent Management even after imposing the above penalties again started withholding the punishment of the Petitioner from 1993 onwards on the alleged ground of pendency of inquiry.
(e) The Management have stated to have consider the case of the Petitioner in DPC of 1996, 1997 and 1998, wherein DPC allegedly did not recommend Petitioner for promotion due to pendency of inquiry.
37. Learned counsel for the Petitioner further submits that on 12/16-12-1987, on charge-sheet dt. 12/13-11-1986; the Respondent has issued a penalty order of withholding of one increment with cumulative effect. Under the statutory Rules of NTPC (CDA Rules), withholding of promotion is also a defined penalty under Rule 23 of NTPC, Conduct, Discipline and Appeal Page 22 of 79 Rules, 1977 (as amended upto July 1997), Rule 23 whereof is reproduced hereunder:
"Rule 23 Penalties.
The following penalties may be imposed on an employee as hereinafter provided, for misconduct committed by him or for any other good and sufficient reasons.
(a) ..........;
(b) Withholding of increments of pay with or without cumulative effect;
(c) .............;
(d) ................"
38. The NTPC had issued a policy dt. 10-09-1985 which is applicable to the Petitioner as per his service terms and conditions, as stated in policy as under:
"It has been raised on a number of occasions that in case of minor penalty of Censure, stoppage of increment etc is awarded the promotion of the employee concerned has also to be withheld for one year and as a result the employee may have to undergo double punishment.....
39. This has been examined and the following decisions have been taken in the matter:-
"1.0 Vigilance proceedings and disciplinary proceedings should be finalized expeditiously in all cases and extra care should be taken in respect of the employees who are in the zone of consideration for promotion Page 23 of 79 2.0. However, where cases are prolonged while giving final decision in awarding punishment, the Disciplinary Authority may keep in view the fact that in case, where minor penalty is intended to be imposed the net result should not lead to withholding of promotion for more than one year and...................., from the date the employee was otherwise found suitable for promotion.
2.1 Accordingly, in case where DPC proceedings have already been taken place, the punishment should be formulated in terms of withholding of promotion for one year counting from the date the employee was otherwise found suitable rather than imposing any other form of minor penalty on him.
Other terms and conditions of the promotion policy circulated vide CPC Nos. 94/82 and 95/1882 both dt. 04/05/1982 shall remain unchanged."
40. Learned counsel for the Petitioner further submits that the Clause 2.8.3 of 1982 Rules stipulating that promotion is to be withheld from the date of punishment is wrongly invoked which was superseded by the policy dt. 10.09.1985 which made it clear that if promotion is to be held for one year in case of minor penalty, it has to be from the date the employee was otherwise found suitable for promotion.
41. She argued that according to the policy, the Petitioner has to be promoted with effect from 01.01.1988 as Controller Page 24 of 79 Gr.-II whereas the Respondents have discriminated him alone and not released his promotion though he has been recommended for promotion by DPC in 1987 and also in 1988. Thus, the Petitioner has been subjected to double penalty in terms of the policy. Under the aforementioned Rule 23 of NTPC CDA Rules, 1977, penalties are bifurcated into two heads, „minor penalties‟ and „major penalties‟. Withholding of promotion as well as withholding of increments are two distinct and separate penalties, which falls under the head, „minor penalties‟. Learned counsel for the Petitioner referred the case of R.B. Singh vs. Union of India and others, 2008(2) SLJ 214 CAT wherein it was held:
"Under Rule 11 of CCS (CDA) Rules, 1965 penalties are bifurcated into two heads, "minor penalties"
and "major penalties". Withholding of promotion as well as withholding of increments are two distinct and separate penalties, which fall under the head "minor penalties". It is well settled that more than one penalty cannot be imposed simultaneously. If penalty of withholding of increment is allowed to operate as affecting his promotion, it would tantamount to inflicting another penalty of withholding of promotion, which is clearly impermissible in law."
Page 25 of 79
42. She further states that despite orders of this Court, Respondent have neither considered his claim during pendency of the enquiry or on culmination of inquiry. The Respondent has not taken any action on the order of this Court dt. 21.03.1996 passed in the instant writ petition i.e. CWP No.1422 of 1995 in consideration for promotion from due dates i.e. with effect from 01.01.1988 and thereafter. Moreover, the Respondents have further also withheld the promotion which implied another penalty on the Petitioner.
43. She further submits that the Petitioner has been „exonerated‟ from all the charges alleged in charge-sheet dt. 12/13.11.1986 vide order dt. 09.12.1997, despite of several requests to the Respondent have not considered his case in compliance of orders of Punjab and Haryana High Court and this Court passed in CWP No. 8930 and CWP No.1422 of 1995 respectively. The Respondent no.3 has sent his case through note-sheet dt. 11.03.1998 vide Diary No.1152 dt. 27.03.1998, the Petitioner has stated that Respondents have not filed reply of para no.41 of CWP 5973 of 1985. The Petitioner has been further deprived the right of consideration in RPC convened Page 26 of 79 after his exoneration in the year 1998 but despite all eligibility he has been deprived his right of consideration in the year 1998. The Respondent once again illegally deprived him his right of consideration from due dates and once again violated the orders of the aforementioned two courts.
44. Learned counsel for the Petitioner further submits that the impugned order of promotion dt. 28.07.1998 promoting the Petitioner as Sr. Supervisor (materials) is in violation of all the Rules, law and even without the decision of CPC is illegal, arbitrary, contemptuous and violation of orders of the above two Courts. Being aggrieved by the arbitral orders, the Petitioner has filed the instant writ petition. Learned counsel for the Petitioner has referred the case of K. Somaiah v. Zonal Manager, Food Corporation, 1974 SLJI (SM) wherein it was held:
"When disciplinary proceedings are initiated and they are yet to be completed.... then he cannot be punished through either by withholding of promotion or by non-consideration of his case for promotion. In either case, it amounts to imposition of punishment, violating both the letter of sprit of Article 311 of the Constitution of India."Page 27 of 79
45. Learned counsel for the Petitioner further argues that all channels of promotions were distorted by changing cadre from Jr. Controller (Post of Operation Department) to Controller Grade-II in Material Department illegally and arbitrarily. Otherwise also, the Petitioner has been considered and recommended against post of Operation Department i.e. in his channel. As per the jobs specifications for the post of Sr. Supervisor (materials) is as under:
"On Channel of Promotion
1) Channel distorted by Changing cadre from Jr. Controller (Post of Operation Department) to Controller Gr. II in material department illegally, arbitrary. No such post in materials.
Otherwise also the Petitioner has been considered and recommended against the post of operation department i.e. in his channel. Job specification for the post of Jr. Supervisor (materials) is
- Diploma in mechanical engg.
- Graduate + one year diploma in materials management."
46. Learned counsel asserted that the Petitioner has refused to accept the same. This unlawful change and non promotion from due dates has adversely affected his career prospects.
Page 28 of 79
47. Learned counsel has relied upon the case of S. Mohandas v. Cochin Port Trust WP(C) 25078 of 2006 Held: there is nothing to show as to how the members of DPC assessed the suitability of the candidates by means of the interview. Another case of Harigovind Yadav v. Rewa Sidhi Grain Bank & others, Appeal (Civil) 1153 of 2003. Held:
The appellant was secured higher marks and he has denied promotion on the ground that he fails to secure minimum marks in the interview. Allowed promotion.
48. Learned counsel for the Petitioner submits that despite of exoneration order the Respondent has deprived him his right of consideration for promotion rather they have not even called him for the interview. The debarring is illegal and against the promotion policy. Thus, they have no right to deny him promotion of Assistant Engineer (O&M) and change his Channel of promotion.
49. Learned counsel has referred the case of A.C. Mitra vs. State of Orissa, AIR 1970 Orissa 19 wherein it was held that, Non-Consideration of a claim of an employee, otherwise qualified for consideration, vitiate the exercise of Page 29 of 79 jurisdiction in the matter, and subject the action of the appropriate authority in the matter of grant of promotion, to the scrutiny of the court. Once the court is satisfied the employee was entitled to consideration has been left out, a case is made out for interference for breach of the guarantee conferred under Article 16 of the Constitution of India.
50. Learned counsel for the Petitioner has drawn attention of this Court to the order dt. 21.03.1996 passed by Division Bench of this Court wherein this Court has observed as under:
"Learned counsel for the Respondents states that he has instructions to say that the reviewing authority has considered the Petitioner‟s case and quashed orders annexures II and III-A dt. 12/13th December, 1987 and 1st January, 1994 respectively and has directed reopen the enquiry proceedings held under Rules 25 of the NTPC CDA Rules, from the stage of 2nd June, 1987, namely, of giving the Petitioner due opportunity to cross examine all the management witnesses and to decide the departmental proceedings in accordance with law after supplying copy of the report of this enquiry to the Petitioner. It is also stated that Shri S.S. Mediratta, Senior Manager (OS) of NCR Headquarters has been nominated to conduct the enquiry form the stage aforementioned.
Learned counsel for the Respondents states that subject to the Petitioner cooperating Respondents Page 30 of 79 will ensure to have the departmental proceedings completed within a period of six months. Learned counsel for the Petitioner states that in view of the above he has instructions to withdraw the petition with liberty reserved to the Petitioner to approach the court again in case necessity thereon would arise and in case on culmination of the departmental proceedings his claim for promotion from the due date is not favourably considered. It is also stated that the question as regards Petitioner‟s claim for promotion from the date and during the pendency of the departmental proceedings be left open with liberty reserved to the Petitioner to approach the court in case necessity thereof would arise in future.
Leave and liberty granted. The petition is disposed of as withdrawn."
51. Thus whole action snags of malafide against the Petitioner, as mentioned in rejoinder namely Sh. Vashist Dubey and Sh. S.N. Bhojasiya, DPS Chouhan stated involved in the fete case, the management did not proceed against them. There is no charge-sheet against them. The Petitioner is being victimized with malice. Even in evidence, it has come on record that the Petitioner was not seen in the fete and hence „exonerated‟. The „censure‟ has no effect on his right to be considered.
52. Learned counsel for the Petitioner further points out that the promotion order for Sr. Supervisor (Materials) and S4 was Page 31 of 79 issued wrongly and changed channel and not given due retrospective benefits. This issue is a part of incident in WP(C) No.4566 of 1998. She submits that in spite of the Rule issued in the aforesaid writ petition and notice received by the Respondent, a show cause notice dt. 03.11.1998 was issued arbitrarily and injudicious delay of 12 years and now 24 years, therefore, the „censure‟ was only to harass and victimize the Petitioner, which is in any case after Rule, 1989, has no effect on promotions. Even if „censure‟ is there, the Petitioner was/ is entitled to relief prayed for in the instant writ petition.
53. On the other hand, on behalf of Respondent learned counsel Sh. S.K. Taneja, Senior Advocate submits that the Petitioner was appointed as Jr. Controller (S-I) after completion of training with effect from 13.12.1983 and posted at Korba Super Thermal Power Plant, Korba. By Memorandum dt. 12/13.11.1996, the Petitioner was charge-sheeted for misconduct under CDA Rules of NTPC. The charge framed against the Petitioner mentioned in Article of Charges as under:
"Article of Charges Page 32 of 79 Article-I Shri R.K. Sood, "E. No.21361, Jr. Controller , O&M, shouted anti-management and anti-Mahila Samaj slogans at about 7.30 pm on 07.11.1986 at the entrance gate of the Fate premises in Jamnipall Permanent Township. He tried to disrupt the official function by inciting violence among other employee and thereby he committed misconduct under Rele 7, 9, 5(5), 5(12), 5(20), 5(21) of CDA Rules of NTPC.
Article-2 While the Fate fanfare was going on smoothly, Shri R.K. Sood went to the Jalebi stall and threatened the ladies managing the stall with dire consequences if they did not close down the stalls and misbehaved with them, thereby he violated Rules 5(5), 5(17), 5(20) and 5(21) of the CDA Rules of NTPC and committed misconduct. Article-3 Shri Sood went to the dais and disrupted the orchestra program and snatching the mike delivered provocative speech in indecent language threatening the organizers to close down the Fete and appealed to the gathering to boycott the program. By the above act, he has committed misconduct under Rule 5(5), 5(20) and 5(21). Article-4 Shri Sood along with others came down the dais and threatened Shri J.K. Mehta for sterring the program and scolded (sic, scolded) him. By the above act, Shri Sood committed misconduct under Rule 5(5), 5(20) and 5(21). Article-5.
Shri Sood along with others forced the person-in-charge of lighting the fireworks to light up the crackers before the scheduled time and being afraid, the person-in- charge did the same. By the above, Shri Sood committed Page 33 of 79 misconduct under Rule 5(5), 5(10), 5(12), 5(20) and 5(21).
Article-6 After the fireworks, Shri Sood along with others went to the dais and disrupted the house program and tried to incite violence and instigated the gathering to demand refund money and boycotting the program and delivered a provocative speech. By the above acts, he committed misconduct under Rule 5(5), 5(10), 5(12), 5(20) and 5(21)."
54. The Petitioner filed his reply to the charge-sheet and submitted that charges were vague, baseless and to victimize him. The Respondent not being satisfied with the reply ordered an enquiry into the charges under Rule 25(3) of NTPC Conduct, Discipline and Appeal Rules.
55. Accordingly, the enquiry was fixed for 02.06.1987, but the Petitioner deliberately avoided to attend the proceedings on the pretext of his illness and sent a request letter along with his medical certificate for fixing another date. Finding his request unjust, the same was rejected. Accordingly, the Enquiry Officer proceeded with the Enquiry and concluded it after examining all the witnesses (PW‟s) on the said date Page 34 of 79 i.e. 12/13.12.1987, the Disciplinary Authority had imposed punishment of „withholding of one increment with cumulative effect‟. Further, it was ordered that the next increment which falls due on 01.10.1988 could not be released.
56. Being aggrieved, the Petitioner filed a statutory appeal against the aforesaid order before the General Manager, Korba. Subsequently, the Petitioner was transferred to Badarpur and thereafter to Yamuna Nagar and his appeal remained pending.
57. Though the Petitioner asserts that he was entitled for promotion with effect from 01.01.1987, relying on the minutes of the meeting with representative of Action Committee held on 16.01.1989, he pleaded that all pending cases ought to have been closed against him. Further, relying on NTPC guidelines dt. 10.09.1985, he pleads that as per the guidelines, his promotion could be withheld only for one year. The minutes dt. 16.01.1989 and guidelines were both flouted.
58. Learned Senior Advocate has pointed out that the Petitioner has projected the case as he was suffered twice as Page 35 of 79 he was first recommended for promotion by DPC on 1987, then again recommended for promotion by DPC in 1988. However, this recommendation was given effect to only in the year 1990. The Petitioner has also alleged that the Respondent deliberately kept the appeal as well as his claim for promotion pending. He was forced to approach Punjab & Haryana High Court by way of CWP No.8930 of 1993 and sought the following reliefs:
"(i) Send for the records of the case and after perusal of the same;
(ii) Issue an appropriate writ, direction or order quashing the impugned order dt. 12/16.12.1987, Annexure P-2, vide which the punishment of withholding of one increment with cumulative effect has been awarded to the Petitioner in an illegal and arbitrary manner also keeping in view the fact that the statutory appeal filed by the Petitioner against the impugned order dt. 12/16.12.1987, Annexure P-
2, has not so far been decided by the Appellate Authority;
Page 36 of 79
(iii) Respondent no. 1 to 4 be further directed to consider and promote the Petitioner for his promotion to the higher posts with effect from the dates his juniors have been promoted and to grant all other consequential benefits to the Petitioner such as fixation of pay, seniority etc. for which the Petitioner is illegally entitled;
(iv) This Court may also issue any other suitable writ, direction or order which it may deem fit in the circumstances of this case;
(v) The costs of this petition may also be awarded to the Petitioner."
The said writ C.W.P. No.8930/1993 was disposed of by Order dt. 27.07.1993 (page 84 at 87) in the following terms:
"The Respondents are directed to dispose of the appeal, Annexure P-3, filed by the Petitioner within a period of three months from the communication of this order. Dasti on payment, with the direction aforesaid, this writ petition stands disposed of.
If appeal succeeds, the Petitioner will be given consequential benefits within reasonable time."Page 37 of 79
59. Accordingly, the Appellate Authority had decided this statutory appeal and modified the punishment to that of "withholding of one increment without cumulative effect w.e.f. 01.10.1988."
60. Thereafter, the Petitioner preferred a review petition against the decision of Appellate Authority, contended that reviewing authority [Executive Director (NCR) NCR HQ] kept in review pending for two years and the Petitioner was constrained to file CWP No.1422/1995 before this Court seeking following directions:-
(a) Directing the Respondents to grant promotion to the Petitioner with all consequential benefits w.e.f. the due date in the light of guidelines dt. 10.09.1985 laid down by the Respondents;
(b) Direct the Respondents to dispose of the Review Petition dt. 07.031994 preferred by the Petitioner under Rule 33 of NTPC (CDA) Rules, 1977 within a period of one month;Page 38 of 79
(c) Pass any further order(s) as this Hon‟ble Court may deem fit and proper under the circumstances of the case.
61. The aforesaid writ petition was decided by order dt. 21.03.1996, whereby this Court recorded the effect of the Reviewing Authority having quashed the order of Disciplinary Authority dt. 12/13.12.1987 as well as that of Appellate Authority dt. 01.01.1994 and reopened the enquiry from the stage of 02.06.1987. The Petitioner was given due opportunity to cross-examine all the management witnesses, copy of the report of the enquiry was supplied to the Petitioner as per law. Thereafter, Sh. S.S. Mendiratta, Sr. Manager (OS) of NCR HQ was nominated to conduct the enquiry from the stage aforementioned subject to the co-operation of the Petitioner and ensured the Respondents will complete the departmental proceedings within a period of 6 months.
62. The Petitioner has contended that after aforesaid order dt. 21.03.1996 and penalty having been quashed and he became entitled for promotion w.e.f. 01.01.1987 and also entitled to subsequent promotions. Further the Petitioner Page 39 of 79 asserted that Respondents failed to conduct DPC 1996 and DPC 1997 according to the NTPC promotion policy and failed to consider the Petitioner from his due dates. However, the same has been kept under seal cover as are the assertion of the Petitioner in para 34 of CWP 5973/1998.
63. Further the Petitioner has asserted that he gave full cooperation and enquiry was completed much before time limit and disciplinary authority Deputy General Manager BTPS 909/1997 issued order of exoneration. The Petitioner again submitted to Executive Director, NCR (HQ)/Reviewing Authority for promotion. But the Respondents kept the decision pending, therefore, Respondent No.3 issued promotion order dt. 28.07.1998 promoting the Petitioner as Senior Supervisor (Material) S-4 including Petitioner‟s claim of promotion from due dates and also changed "promotion of junior applicable to Petitioner".
64. Thus, Petitioner alleged that his claim of promotion from due dates has been ignored withholding promotion from due dates despite orders from the Court and service "exoneration" Page 40 of 79 is illegal arbitrary, discriminatory and against quality of good conscious.
65. Learned counsel for the Respondent in his written statement has prepared the chart of the Petitioner‟s claim for promotion vis-a-vis granted to him is spelled out in the chart below:-
Promotions entitlement to Petitioner's Claim promotion and given to Petitioner Promoted post Effective Claimed Claimed from date post effective date Controller Grade II w.e.f. Controller 01.01.1987 (S2) (letter dt. 1.01.1990 Grade-II 01.07.1990) (S-2) Supervisor Grade I w.e.f. Supervisor 01.01.1990 (S3) 1.04.1993 Grade I (S3) (letter dt.
25.06.1993) Sr. Supervisor w.e.f. Assistant 01.04.1993 (material) (S4) 01.01.1998 Engineer (E-
(letter dt. 1)
28.07.1998)
Sr.Asstt. 01.04.1996
Engg. (E-2)
Engineer (E- 01.04.1997
2A)
66. During the course of arguments, the Petitioner has urged following grounds for entitlement of his promotion:- Page 41 of 79
(I) Even considering that penalty of withholding of one increment with cumulative effect, which is a minor penalty and even assuming the pretext of the case being pending, the Respondent was duty bound to release the promotions of Petitioner w.e.f. 01.01.1988 according to own guidelines of 10.09.1985. But the Petitioner failed to release the promotion either from 01.01.1987 or from 01.01.1988.
(II) Respondent again despite its undertaking dt. 16.01.1989 to promote the Petitioner w.e.f. 01.01.1988 failed to release such promotion and caused double jeopardy to the rights of Petitioner.
(III) Petitioner has become eligible and entitled to promotion to the post of Controller Grade II (S2) w.e.f. 01.01.1987 as a result of exoneration of the charges leveled against the Petitioner in the year 1986 and therefore subsequent promotions as Controller Grade I (S3) w.e.f. 01.01.1990 and became due for consideration for promotion to Asstt. Engg. (E1) w.e.f. 01.01.1993 and Sr. AE (E2) w.e.f. 01.01.1996 and Engineer (E2A) w.e.f. 01.01.1997.
(IV) Erroneously relying on certain amendment dt. 03.02.1989 in promotion policy, which pertains to some clarification in sealed cover procedure has contended that penalty of "censure" does not debar Petitioner‟s consideration from promotion.
This contention is ex-facie fallacious besides the said amendment pertains only to the executives (those failing in -1 and onwards), whereras the amendment was not applicable to the employees falling in workmen and supervisory category, in fact such amendment in the supervisory and Page 42 of 79 workmen category was made with effect from 14.06.1991.
01. WHEREAS the Disciplinary Authority vide his order No. BTPS/C&M/97-98/1 dt. 09.12.1997 had exonerated you from the charges leveled against you vide charge sheet No. KS:PERS:ESTT:PF:21361:2007 dt. 12/13.11.86;
02. AND WHEREAS I have called for the entire record of the case in the capacity of Reviewing Authority, exercising my Powers under Rule 33 of NTPC Conduct, Discipline and Appeal Rules, 1977;
03. AND WHEREAS after going through the records relating to the case including the proceedings and the report of the Enquiry Officer, I have observed that the Disciplinary Authority while passing the order has overlooked the fact that there is sufficient material on the basis of which the Enquiry Officer has given his findings and that 3 of the Articles of charges (Articles 1, 3 & 6) are proved substantially, i.e., Misconduct under Rule 7, Rule 5(5), 5(12), 5(20) and 5(21) of the NTPC Conduct, Discipline & Appeal Rules accordingly stand proved.
04. AND WHEREAS the charges which have been proved are of very serious, nature involving disturbance and disruption of an official function, disorderly and indecent behavior within the premises of the Company, acts subversive of discipline and abetment thereof, the Disciplinary Authority seems to have failed to appreciate the gravity of these charges.
05. AND WHEREAS considering all these aspects and the material available on record and after proper application of mind, I am of the view that this is not a fit case for exoneration but warrants punishment;
Page 43 of 79
06. Though the charges proved are of a serious nature, taking a lenient view this time I, as Reviewing Authority, propos to impose the penalty of "CENSURE" in terms of Rule 23(a) of NTPC Conduct, Discipline and Appeal Rules and issue this notice of you to show cause within 15 days from the date f receipt of this notice as to why the penalty of "CENSURE" should not be imposed upon you. A copy of the report of the Enquiry Officer Sh. S.S. Mediratta is enclosed.
07. Please note that in case I do not receive any reply of this show cause notice within stipulated period of time as mentioned hereinabove, I shall presume that you have nothing to say and shall pass necessary orders accordingly.
08. This notice is being issued in duplicate. Please acknowledge receipt on the duplicate copy.
Sd/-
(J.N.Sinha) Executive Director (NCR)
67. While dealing with the averments made in W.P.(C) 4566/1998, the learned Senior counsel submits as under:-
(A.) The Respondent have controverter the plea of the Petitioner and stated that due promotions as per promotion policy of NTPC dt. 04.05.1982 read with guidelines stated on 10.09.1985 had been given.Page 44 of 79
There was no understanding to grant promotion w.e.f. 01.01.1987 to 01.01.1988. There has been no utilization. The Petitioner has himself being non-
cooperating in the enquiry which resulted in delay of disciplinary proceedings. It was also asked by the Petitioner that the Petitioner had deliberately not mentioned that in memorandum of Charge Sheet dt. 01.03.1998, in which enquiry was held and punishment was awarded as under:-
"Punishment of removal from Service"
However, he submits that vide order dt. 24.09.1998, the appellate authority (ED-WR) by its order dt. 30.12.1998 modified the punishment to that of "censure". This punishment of "censure" was not assaulted by the Petitioner and the said punishment attained finality. The Petitioner has been mis-representing the court and not apprising the fact of his punishment of "censure" on his promotion as per the promotion policy of NTPC. (B.) The Respondent have filed consolidate additional affidavit on 12.12.2002 for both the writ petitions, which was permitted to be placed on record. The Page 45 of 79 Respondent has clearly spelt out in the said counter as under. Relevant portions whereof reads as under:-
"1. That the Petitioner was charge sheeted by memorandum dt. 12/12.11.1986 for misconduct; six imputations of misconduct leveled against the Petitioner were annexed with the memorandum. An inquiry was proposed to be held for such misconduct.
2. After conclusion of enquiry the Petitioner was found guilty of charge sheet and accordingly a punishment of withholding one increment with cumulative effect with effect from 01.10.1988 was imposed on him. In appeal by Order dt. 01.01.1994 inflicting punishment was moderated by altering "with"
to "without" in the punishment thus punishment was to withhold one increment without cumulative effect with effect from 01.10.1988.
3. Another memorandum of charge sheet was issued against the Petitioner on 01.03.1988. After enquiry the Petitioner was removed from services by Order dt. 24.09.1988. A copy of said Order dt. 24.09.1988 is annexed as "Annexure R- A1". In appeal the order of removal from service was modified into "censure" by Order dt. 30.12.1988. A copy "Annexure R-A2".
4. By virtue of clause 2.8.3 of policy of promotion of Respondent Corporation, the Petitioner could have been considered for promotion only after one year after the effective date of punishment. Since punishment had been imposed on 30.12.1988, therefore the bar of promotion as per Rules continued till 30.12.1989. Accordingly by Order Page 46 of 79 dt. 01.07.1990 the Petitioner was promoted with effect from 01.01.1990 as Controller Grade-II, which is a S-2 post. A copy of the said order dt. 01.07.1990 is annexed herewith as Annexure R-A3."
(C.) Besides, the Respondent have relied upon the promotion policy dt. 04.05.1982 of NTPC applicable to supervisory category, relevant portions whereof are re-produced as under:-
"2.8.2 No employee under suspension or against whom disciplinary or vigilance proceedings have been initiated shall be promoted until he is unconditionally reinstated or exonerated. In case of unconditional reinstatement or exoneration, the effect, but the financial benefit accruing due to the promotion order is issued and no arrears will be payable on this account unless specifically mentioned otherwise in the promotion order. 2.8.3 An employee who has been awarded any minor punishment will be debarred for a period of one year, from the effective date of punishment order, from consideration for promotion. 2.8.4 No employee who has been awarded three or more minor punishments in the same calendar year shall be considered for promotion for next two years from the effective date of the last punishment order."
(D.) A reliance was also placed on the guidelines of promotion of employees affected by vigilance and other disciplinary proceedings dt. 10.09.1985, relevant portion whereof reads as under:- Page 47 of 79
"If any employee whose case under disciplinary proceedings is in the zone of promotion and is found suitable by the DPC, the DPC Minutes will be kept in a sealed cover. On completion of vigilance/disciplinary proceedings if the employee is exonerated the recommendations of the DPC after due approval of competent authority would be announced and implemented. In case an employee is found guilty and given some punishment, the DPC proceedings become null and void. In such cases, the stand would be discussed in the DPC in a meeting. Assessment by the earlier DPC against other factors of promotion, if any, like interview, trade test etc., shall be taken into consideration by the fresh DPC in its meeting.
Other terms and conditions of the promotion policy circulated vide CPC Nos. 94/82 and 95/1982 both dt. 04.05.1982 shall remain unchanged."
(E.) He further submits that the Petitioner filed an affidavit on 5.5.2009 and has relied on the some internal department communication, which, he obtained through RTI from Respondent. The Respondent filed its reply dt. 22.04.2010 stating that the Petitioner was supplied five documents but only three documents which pertains to inter office communication from KORBA to BTPS were filed and other documents were mischievously concealed. The concealed documents were the material as it is Page 48 of 79 the final order dt. 20.02.1990 of the corporate office.
(F.) He further submits, inter office communication is under relevance in the light of final order dt. 20.02.1990. The Petitioner relied on inter office correspondence deliberately concealing the final order as an act of mis-conduct.
(G.) Further, he submits that the Petitioner cannot claim promotion w.e.f. 01.01.1987 or 01.10.1998 merely on internal departmental communication, especially when the final decision making authority had conveyed its decision vide letter dt. 20.02.1990, the said decision was acted upon and due promotion was given w.e.f. 01.01.1990 (S-2), thereafter; the Petitioner was promoted to S-3 w.e.f. 01.01.1993 and considered for promotion to S-4 and E-1 in the year 1996 and 1997.
(H.) Further, after exoneration, he was promoted to S-4 w.e.f. 01.01.1998 as per NTPC promotion policy. To support the aforementioned submission, the Page 49 of 79 Respondent has cited Apex Court‟s decision as (2011)4SCC200 Para 15, whereof reads as under :-
"15. It is trite that inter-departmental communications and notings in departmental files do not have the sanction of law, creating a legally enforceable right. In Sethi Auto Services Station V. D.D.A., a Division Bench of this Court, in which one of us (D.K. Jain, J.) was a member, has observed thus: (SCC pp. 185-86, para 14)
14. ....Needless to add that internal notings are not meant for outside exposure. Notings in the file culminate into an executable order, affecting the rights of the parties, only when it reaches the final decision-making authority in the department, gets his approval and the final order is communicated to the person concerned." (Emphasis supplied)"
68. The Respondent further submits that the Petitioner has not been able to make out any ground for relief under Article 226 of Constitution in this petition [W.P. (C) 4566/1998]. Here, learned Sr. Advocate, Sh. S.K.Taneja has argued and dealt with the points raised by the Petitioner.
The Petitioner is seeking promotion with effect from 01.01.1987/01.01.1988 (S-II) as per promotion policy dt. 04.05.1982 read with guideline dt. 10.09.1985. As per clause 2.8.3 in case of minor punishment, the employee is Page 50 of 79 debarred for one year form the effective date of punishment from consideration for promotion. Guidelines provide that disciplinary proceedings be decided expeditiously so that employee‟s promotion is not withheld beyond one year in case of minor punishment, and two years in case of a major punishment from the effective date and in terms of paragraph III of the guidelines dt. 10.09.1985, in case of some punishment, DPC proceedings become null and void and earlier assessment by the DPC would be taken into consideration by the fresh DPC in its meeting.
69. Learned counsel for the Respondent submits that the Petitioner has not challenged the validity of either the promotion policy or the guidelines. The Petitioner had duly been considered as per the promotion policy and guidelines.
The other ground setup by the Petitioner is that in view of minutes of meeting with the representation of Action Committee held on 16.01.1989 certain points of understanding were mutually agreed upon, the same are at page 45 of the petition. The point No.1 relevant to point in issue reproduced as under:
Page 51 of 79
"that place of posting of Shri Sood will be changed to B.T.P.S. and last date of joining will be 27th January, 1989. Intimation about the DPC recommendations for his promotion w.e.f. 01.01.988 will be sent to BTPS along with NOC/LPC. All the pending cases will be closed at K.S.T.P.P."
70. He submits, from a reading of these minutes of meeting, it cannot be said that Respondent had undertaken or agreed to promote the Petitioner for S-II with effect from 01.01.1988 de hors the Promotion Policy/guidelines. Even otherwise, the Petitioner in W.P. (C) No. 8930/1993 filed on 23.07.1993 before Punjab & Haryana High Court pleaded this undertaking in para 13 to 15 but did not seek its enforcement and the High Court vide its order dt. 27.07.1993 directed the Respondent to decide the appeal only.
71. Further submits, similarly, in Writ Petition (Civil) No. 1422/1995 before this Court, the Petitioner did not plead about any undertaking or its enforcement. The Petitioner cannot be allowed promotion on the basis of the said undertaking dt. 16.01.1989 at this stage.
The Petitioner submitted that he has been subjected to double jeopardy inasmuch as the Petitioner having been Page 52 of 79 awarded the minor punishment of withholding of one increment and Petitioner is promotion has also been withheld for one year from the effective date of promotion and as such the Petitioner has to undergo double punishment. It is submitted that this Rule/guideline is violative of Article 14/16 of the Constitution of India and are ultra vires of Constitution.
72. In this regard, it is firstly submitted by learned Sr. counsel for the Respondent that the Petitioner has not sought the quashing of the promotion policy and the guideline. Besides this the Rule of NTPC debarring promotion for one year from the effective date of punishment order cannot be held to be a case of double jeopardy or arbitrary exercise of power. The employee cannot be rewarded with promotion during the currency of punishment period. In case cited as 1995 (3) SCC 273, the Hon‟ble Supreme Court held as under:
"7.......Unless the period of punishment gets expired by efflux of time, the claim for consideration during the said period cannot be taken up. Otherwise, it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium on misconduct...."Page 53 of 79
73. In the present case admittedly the Petitioner was considered and given due promotion with effect from 01.01.1990 (S-II) after the expiry of punishment period of one year. It is highlighted that in the DPC of 1990, the results of earlier DPC‟s of previous years were duly considered as per the Promotion Policy and guidelines.
That it has been contended that channel of promotion has been changed to deprive the Petitioner of his due promotion.
74. The Respondents have demonstrated in their documents that they have employees in Supervisory and Executive category besides workman etc. Promotion policy provides for different channel and designation for Supervisory category and for Executive category. While the designation in Supervisory category are S-1, S-2, S-3, S-4 etc; and in Executive category the designations are E-1, E-2, E-2A, E-3, E-4 etc. From S-3 there are two channels open for promotion, firstly supervisor in S-3 can be considered for promotion to S-4 level and/or can also be considered for E-1 level directly subject to fulfillment of conditions and eligibility criteria, the person in S-3 designation. Page 54 of 79
75. On being considered to E-1 the employee at S-3 has to qualify a written test and then qualify in the interview as per the promotion policy.
76. The learned senior counsel for the Respondent submits that in the instant writ petition, Petitioner and some others joined the corporation as Diploma Engineers and after training appointed as Junior Controller/Jr. Fireman/Jr. Supervisor (S-1- Post). The Petitioner‟s first posting was in (O&M) Department and was given the designation of Jr. Controller (O&M) (S-1 post) and promoted w.e.f. 01.01.1990 (S-2 Post) and posted in store Department at Badarpur. The Petitioner submits that he has accepted the said proportion w.e.f. 01.01.1990 (S-2) without having regard to his representation dt. 29.06.1990. In the year 1991, Petitioner was posted in the different Departments i.e. Supervisor Gr.-I (S-2 Post) in Electric Erection Department, Supervisor Gr.-I (Material), Yamuna Nagar, (Harayana) and then designated as Supervisor (Material and Contract) as S-3 Level at Badarpur. There was no change of channels. As per the promotion policy in NTPC, the channel of promotion is clear and not ambiguous.
Page 55 of 79
77. Further submits that in the present case, the Petitioner was again due for being considered for promotion in year 1996. By this promotion from S-III Post, Petitioner could have either been promoted to E-I post directly or to S-4 Post. The case of Petitioner‟s promotion in the year 1996 and 1997 has elaborately been explained in counter affidavit read with additional affidavit and also in reply dt. 14.01.2011 to CM No. 14544/2010. The relevant extracts of the said reply dt. 14.01.2011 at its internal pages 7 and 8 is reproduced as under:
"....The reviewing authority by its order dt. 19.03.1996 had reopened the enquiry against the Petitioner in respect of charge-sheet dt. 12/13.11.1986. It is also a fact that the Petitioner was duly evaluated and considered for promotion in the year 1996 and 1997 by the Project Level DPC for S-4 post, and by the Regional Level DPC for E-1 Post. However, since the Petitioner was facing departmental proceedings, the result/recommendations of the said DPC‟s were kept in a sealed cover. Therefore, in year 1996 and 1997 the Petitioner could not have been considered for promotion due to ongoing departmental proceedings against him. By Order dt. 09.12.1997 (page 113 of writ record), the disciplinary authority exonerated the Petitioner. It resulted in culmination of departmental proceedings. In terms of NTPC promotion policy the recommendations/results of DPC 1996 and DPC 1997 were opened and it was found that the said DPCs had not recommended the Petitioner for promotion. In the year Page 56 of 79 1998, project level DPC was held on 20.06.1998 and Petitioner was promoted to S-4 post with effect from 01.01.1998. As regards the promotion of Petitioner from S-3 to E-1 post, it may be mentioned that in the year 1998 the Petitioner did not give his consent for transfer upon promotion as per the then requirement of the management, and also the Petitioner did not appear for mandatory test and interview before the Regional DPC."
The Petitioner has been changing his stand at various stages of the proceedings vis a vis consideration of his promotion in year 1996 and 1997. The Petitioner‟s case projected in paragraph 34 of the petition clearly spell out that his grievance was that Respondent failed to conduct DPC in 1996 and 1997 according to NTPC promotion policy and failed to consider his from his due dates despite Court‟s directive. In the said para his admitted case is that the results of DPC 1996 and 1997 is kept in sealed covers.
78. Further submits, the Respondent has clearly demonstrated that DPC was duly conducted in 1996 and 1997 and Petitioner was also duly considered, and the relevant records related to DPC of 1996 and 1997 were shown to the Court during the course of hearing of the Writ Petition. Page 57 of 79
Lastly, the Petitioner pleaded that the Respondents failed to conduct the DPC in year 1996 and 1997 and failed to consider the Petitioner for promotion. This is erroneous for reason of page 18 of writ petition and also that he was duly considered in both the DPCs.
79. The learned counsel for the Respondent here submits that there is no merit in the writ petition [W.P. (C) 4566/1998] and the Petitioner has also mis-conducted himself. Thus, the said petition is dismissed with costs as devoid of any merit.
80. In reply to C.W.P. No. 5973/1998, the learned senior counsel for Respondent submits that the Petitioner has filed the instant writ petition mainly on the following grounds:-
a. Rule 33 of the NTPC Conduct, Discipline and Appeal Rules under which the show cause notice dt. 03.11.1998 (annexure P-17 page 127) has been issued does not apply in case the delinquent has been exonerated. Arguments projected are that, Reviewing Authority can review the decision of Inquiry Officer/Disciplinary Officer when it has Page 58 of 79 resulted in some punishment; however, if the employee has been exonerated in the enquiry the Reviewing Authority has no power under the Rules to review. Thus contention was that the impugned show cause notice was illegal and contrary to Rules.
b. Petitioner has contended and argued that earlier the Reviewing Authority on a review had applied his mind, and had ordered resuming/re-opened the enquiry from the stage of cross-examination; thus it is contended that the Reviewing Authority having applied its mind once is stopped from issuing show cause notice now; at this stage;
c. Power to review cannot be invoked by the Reviewing authority after 6 months of the final order of Exoneration dt. 09.12.1997;
d. The action of the Reviewing Authority is mala fide on account of delay in taking action.
81. The show cause notice in question was issued under Rule 33 of the N.T.P.C. Conduct and Discipline Appeal Rules Page 59 of 79 but there is no challenge to the said Rule nor any breach of fundamental rights are alleged or proved on record.
82. Further submits, the Petitioner prayed and got the show cause notice stayed vide the order of this Court dt. 19.11.1998.
83. The Respondent has filed a detailed counter affidavit. Before dealing with the contents of the Petitioner, it would be relevant to refer to Rule 33 of the N.T.P.C. Conduct and Discipline Appeal Rules which reads as under :-
Rule 33 Review "Notwithstanding anything contained in these Rules, the Reviewing Authority as specified in the schedule may call for the record of the case within six months of the date of final order and after reviewing the case pass such orders thereon as it may deem fit.
Provided that if the enhanced penalty, which the Reviewing Authority proposes to impose, is a major penalty specified in clauses (e), (f) or (g) of Rule 23 and an enquiry as provided under Rule 25 has not already been held in these cases the Reviewing Authority shall direct such an enquiry be held in accordance with the provisions of Rule 25 and thereafter consider the record of the enquiry and pass such orders as it may deem proper. If the Appellate Authority decides to enhance the punishment but an enquiry has Page 60 of 79 already been held in accordance with the provisions of Rule 25, the Reviewing Authority shall given show cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The Reviewing Authority shall pass final order after taking into account the representation, if any, submitted by the employee."
84. Learned Senior counsel has argued that the arguments of the Petitioner are ex-facie fallacious. Rule 33, under which Reviewing Authority has exercised its power of review and has issued show cause notice to the Petitioner, is clear and unambiguous. It gives ample jurisdiction to the Reviewing Authority to review any order. The Rule does not lay down any restriction on power of review that such power can be exercised only if order under review has resulted in punishment. The cardinal Rule of law is that words of a statute must be read in its literal sense since the Rule is clear and unambiguous it has to be read and applied as it is following the golden Rule of interpretation. The first contention therefore being contrary to Rule 33 is not tenable at all.
85. Regarding the second contention, the Respondent has clarified its stand in its counter affidavit that there is no bar in the Rule 33 that once the review authority has taken recourse Page 61 of 79 of Rule 33 to review the order of Disciplinary authority or enquiry officer, the reviewing authority is precluded from taking further recourse to Rule 33 at any subsequent stage, surely, the review authority has power under the said Rule to review any order. In case on review, the enquiry is re-opened the reviewing authority will undoubtedly have power to review the final order passed finally. In case, the contention of Petitioner is accepted, it would tantamount to reading something into the law which is impressible in law.
86. That apart, on the earlier occasion, the reviewing authority in exercise of its power under Rule 33 of the Rules had accepted the request of the Petitioner and had re-opened the enquiry giving opportunity to the Petitioner to cross examine the management witnesses. At the earlier occasion there was no occasion of the reviewing authority to go into the merits of the case. However, after reopening the enquiry, the enquiry officer has returned his finding and has passed order in punishment. Therefore, the action of the Reviewing Authority is perfectly justified and within the fore-corners of mandate of Rule 33.
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87. The third contention of the Petitioner vis-a-vis delay is contrary to record and the case and is thus is untenable. Firstly, there is no mandate of limitation prescribed in the Rules; the only limitation provided in Rule 33 is that the reviewing authority must call for record within 6 months. The record clearly shows that the reviewing authority had in exercise its power of review under Rule 33 had called for the records of the case on 19.05.1998 i.e. within the period of six months. After examining the enquiry report and the entire records of the proceedings and also obtaining legal opinion had issued show cause notice dt. 03.11.1998, therefore, there is not a question of any delay as allege by the Petitioner.
88. Learned senior counsel further submits that the Petitioner is trying to mislead the court by harping that show cause notice is issued after 11 month of the order whereby Petitioner was „exonerated‟.
89. The mandate in Rule is to exercise the power of review within six months, and there is no mandate at all as to within what time the reviewing authority must take decision. The Petitioner is deliberately reading the words into the Rules. The Page 63 of 79 power of review under Rule 33 is to be exercised after passing of a final order in the present case; the Disciplinary Authority has passed the order of exoneration on 09.12.1997. Thereafter, the Petitioner himself had been representing to the reviewing authority against the said exoneration, the same is attached as annexure P14 (Colly). On receipt of Petitioner‟s representation the reviewing authority has called for the records of the case on 19.05.1998 in exercise of its power under Rule 33. Thereafter, the reviewing authority has himself considered the case, obtained legal opinion, then issued the show cause notice dt. 03.11.1998. Therefore, there is no illegality or ambiguity in issuance of show cause notice or in invoking power of review under Rule 33.
90. The learned counsel has pointed out that the Petitioner has wrongly harped that reviewing authority on the two occasions was the same person and thus Petitioner feels discriminated. But, the Petitioner has not shown any discrimination on record. That apart, it is pointed out on both the occasions, the reviewing authority was a different person as thus no question of discrimination. At the time of reopening Page 64 of 79 the enquiry, reviewing authority was Sh. Saranjit Singh while at the second occasion, i.e. at the time of issuance of show cause notice, the reviewing authority was Sh. J.N. Sinha. Thus, a reading of Rule 33 would amply show that it gives ample jurisdiction to the reviewing authority to call for any record and review the decision. In this case, the reviewing authority had rightly exercised the power and had called the files and had found that the appellate authority had acted improperly in exonerating the Petitioner, though on record of the enquiry of the proceedings cogent and sufficient material existed for imposing penalty against the Petitioner. In that view of the matter, reviewing authority cannot be faulted in having exercised the power of review.
91. The learned senior counsel has made it clear that the executive Director (NCT) was the reviewing authority as against the Petitioner. There is no doubt about the fact particularly because the Petitioner has himself been submitting representations to the same very designating officer for review of the orders passed by reviewing authority. In view of this conduct and admission of the Petitioner, the Page 65 of 79 Petitioner cannot be heard to the contrary. That apart the NTPC Rules leave no doubt that the executive director (NCT) is the reviewing authority in the case of the Petitioner.
92. The learned senior counsel has raised a legal issue that the writ petition is pre mature and does not lie against mere issuance of a show cause notice. On the face of clear and unambiguous Rule 33 providing for review it cannot be said that the reviewing authority has no power for review, therefore show cause notice simplicitor cannot be a ground of exercising jurisdiction under Article 226 of the Constitution in case reviewing authority after the show cause notice commits some irregularity or gives a finding against the Petitioner the Petitioner has definitely right to approach the Court. But at the show cause stage no such right exists with Petitioner. The learned senior counsel has referred a case of Union of India and Anr Vs. Kunisetty Satyanrayana, (2006) 12 SCC 28, the delinquent on mere issuance of charge sheet had directly approached the Administrative Tribunal, and the Tribunal having disposed the OA, directing the delinquent to submit the reply before the Disciplinary Authority, the delinquent having Page 66 of 79 challenged the same in the High Court, which had been allowed by the High Court, the employer had approached the Supreme Court. In such a case, the question before the Supreme Court was whether the High Court was right in allowing the writ petition. The Supreme Court returned a finding holding that the High Court was not justified in allowing the writ petition. In paragraph 13, Supreme Court held as under:-
"13. It is well settled by a series of decision of this Court that ordinarily no writ lies against a charge sheet or show cause notice vide............................
14. The reason why ordinarily a writ petition should not be entertained against a mere show cause notice or charge sheet is that at that stage the writ petition may be held to be premature. A mere charge sheet or show cause notice does not give rise to any cause of action, because it does not amount to an adverse order which affects the rights of any party unless the same had been issued by a person having no jurisdiction to do so. It is quite possible that after considering the reply to the show cause notice or after holding an enquiry for authority concerned may drop the proceedings and/ or hold that the charges are not established. It is well settled that a writ petition lies when some right of any party is infringed. A mere show cause notice or charge sheet does not infringe the right of anyone. It is only when a final order imposing some punishment or otherwise adversely affecting a party is passed, that the said party can be said to have any grievance.Page 67 of 79
15. Writ Jurisdiction is discretionary jurisdiction and hence such discretion under Article 226 should not ordinarily be exercised by quashing a show-cause notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases the High Court can quash a charge-sheet or show- cause notice if it is found to be wholly without jurisdiction or for some other reason if it is wholly illegal. However, ordinarily the High Court should not interfere in such a matter."
93. In Executive Engineer, Bihar State Housing Board V. Ramesh Kumar Singh and others (1996) 1 SCC 327, the Supreme Court on facts held that Respondent was not justified in invoking extraordinarily jurisdiction of the High Court under Article 226 of the Constitution of India without first showing cause against the impugned notice. It was held in paragraph 10 as under:
"10. We are concerned in this case, with the entertainment of the writ petition against a show- cause notice issued by a competent statutory authority. It should be borne in mind that there is no attack against the vires of the statutory provisions governing the matter. No question of infringement of any fundamental right guaranteed under the Constitution is alleged or proved. It cannot be said that Ext. P4 notice is ex facie a nullity or totally "without jurisdiction" in the traditional sense of that expression-that is to say, that even the commencement or initiation of the proceedings on the face of it and without anything more, is totally unauthorized. In such a case, for entertaining a writ petition under Article 226 of the Constitution of India against a show cause notice, Page 68 of 79 at that stage, it should be shown that the Authority has no power or jurisdiction to enter upon the enquiry in question. In all other cases, it only appropriate that the party should avail of the alternate remedy and show cause against the same before the authority concerned and take up the objection regarding jurisdiction also, then. In the even of an adverse decision it will certainly be open to him to assail the same either in appeal or revision, as the case may be, or in appropriate cases, by invoking the jurisdiction under Article 226 of the Constitution of India."
94. Petitioner also relied on (2004) 3 SCC 440, wherein in paragraph 5 of the Supreme Court has depreciated the practice of High Courts entertaining writ petitions questioning legality of the show-cause notices stalling enquiries as proposed and retarding investigative process to find the actual facts with the participation and in the presence of the parties. Reliance is also placed on AIR 1987 SC 943; para 9 is relevant.
95. Lastly, Petitioner has alleged that the show cause notice has been issued with mala fide. There are no specific averments or grounds of any mala fide, nor has any such alleged ground been proved or established. Mere allegation of mala fide without any foundation and material to substantiate Page 69 of 79 the same, are not sufficient, and call for no judicial intervention.
96. Both the parties were heard in length after considering the written submissions; I pen my opinion as far as the CWP 4566/1998 is concerned. The Petitioner was charge sheeted by memorandum dt. 12/13.11.1986 for misconduct. Finally, at the level of appellant authority the punishment given to the Petitioner was withholding of one increment without cumulative effect from 01.10.1988.
97. By another memorandum of charge sheet issued against the Petitioner on 01.03.1998, the Petitioner was removed from the service vide order dt. 24.09.1998. However, in appeal the order of removal from service was modified by order dt. to 30.12.1988 „censure‟. By virtue of clause 2.8.3. of policy of promotion of Respondent‟s corporation, the Petitioner was considered for promotion only after one year after the effective date of punishment. Since the punishment had been imposed on 30.12.1988 therefore, the bar of promotion as per the Rules continued till 30.12.1989. Accordingly by order dt. 01.07.1990, the Petitioner was promoted w.e.f 01.01.1990 Page 70 of 79 in controller Grade-II, which is a S-2 post. The next promotion was granted as per the Rules after 3 years and accordingly by order dt. 25.06.1993, the Petitioner was duly promoted to the next higher post as Supervisor Grade-I (Material) which is S-3 post w.e.f 01.04.1993. The Petitioner was again promoted to S-4, Grade by order dt. 28.7.1998 with effect from 01.01.1998.
98. I made it clear that, though the Petitioner was due for promotion in 1996, his promotion from S-3 post could not have been promoted to E-1 (Executive cadre post) directly, which being an inter-cadre post requires recommending authority at regional level DPC or the Petitioner would have been promoted to S-4 which was intra-cadre post for which the recommending authority was Project DPC.
99. Further, the Respondent has made it clear that on 07.03.1994 the Petitioner filed for a review under Rule 33 of NTPC CDA Rules against the order dt. 01.01.1994 of the Appellant authority, by which the order of punishment imposed on Petitioner, was moderated.
100. The reviewing authority vide its order dt. 19.03.1996, reopened the enquiry in respect of charge-sheet Page 71 of 79 dt. 12/13.11.1986. Since, the enquiry had been reopened; the disciplinary proceedings against the Petitioner remained pending. Vide order dt. 09.12.1997 the Disciplinary authority exonerated the Petitioner. However, the disciplinary proceedings against the Petitioner remained pending up to 09.12.1997. As regards to the promotion of the Petitioner from S-3 to E-1 post, the Petitioner was duly considered for the same in the year 1996-97 as well as by the Regional level, DPC. As per as the pre-requisites the Petitioner, appeared in mandatory test and interview. Although the Regional level DPC did not recommend the Petitioner‟s name for promotion to E-1 cadre in both years i.e. 1996-97, the result of the Petitioner qua his recommendation was kept in sealed covers as the disciplinary proceedings against the Petitioner were pending till 09.12.1997. In the year 1998, the Petitioner did not give his consent as required for considering candidates for promotion of E-1 cadre; therefore, Petitioner‟s name was not forwarded to the Regional Level DPC. Thereafter, in the years 1991 and onwards the Petitioner did not come forward for tests or interviews which were mandatory pre-requisite for being Page 72 of 79 promoted from S-3/S-4 to E-1 cadre, therefore, he was not considered after the year 1999.
101. I further made it clear that the Petitioner was duly considered by the Project level, DPC from the promotion from S-3 to S-4 post in the years 1997. But, due to the pending departmental proceedings against him, he was not recommended for promotion to S-4 post by project DPC. However, in the year 1998, after his exoneration vide order dt. 09.12.1997, the Petitioner was promoted to S-4 Grade vide order dt. 27.07.1998 w.e.f. 01.01.1998.
102. Vide order dt. 24.09.1998, the appellant authority (ED- WR) by its order dt. 30.12.1998 modified the punishment to that of "Censure". The punishment of "Censure" was not challenged by the Petitioner; therefore, the said punishment attained its finality and by virtue of clause 2.8.3. of the policy promotion, the Petitioner could not be considered for promotion because the punishment had been imposed on 30.12.1988, therefore, the ban of promotion was continued till 30.12.1988. Accordingly, by order dt. 01.07.1990, the Petitioner was promoted w.e.f. 01.10.1990 as Controller Grade- Page 73 of 79 II, which is S-2 post.
103. As regards to the double jeopardy, unless the period of punishment gets expired by efflux of time, the chain for consideration during the said period cannot be taken up as it would amount to retrospective promotion which is impermissible under the Rules and it would be a premium to misconduct as was observed by the Supreme Court in the case of State of Tamil Nadu Vs. Thiru K.S. Murugesan and Ors. 1995 (3) SCC 273. Therefore, in my opinion, the Petitioner was rightly considered for promotion after expiry of his punishment and further promoted w.e.f. 01.01.1990.
104. Regarding the chain of channel of promotion for Supervisory category and for Exclusive category, the designations in Supervisory Category are S-1, S-2, S-3, S-4 etc. From S-3 post, there are two channels open for promotion; firstly, Supervisor in S-3 can be considered for promotion to S- 4 level and also can be considered for E-1 level directly subject of fulfillment of criteria. For being considered to E-1, the employee of S-3 has to qualify in the written test and interview as per as the promotion policy, which is not found in case of Page 74 of 79 the Petitioner. Since the Petitioner was posted in a different department i.e. Supervisor Grade-I (S-2) post in electric erection department Supervisor Grade-I (Material) and then designated as Supervisor (Material and Contract) as S-3 level. Therefore, there was no change of channel as per promotion policy in NTPC.
105. During the argument, the Respondents have shown the original record to this Court. On perusal it revealed that the DPC was conducted in 1996-97 wherein the Petitioner was also duly considered. Therefore, I do not find any discrepancy, arbitrariness and illegality in the order passed by the Respondent. Thus, I am not inclined to interfere with the orders passed by the Respondent. Accordingly, the writ petition No. 4566/1998 is dismissed.
106. In regard to W.P.C. 5973/1998, the impugned show cause notice dt. 03.11.1998 vide Rule 33 of NTPC Conduct, Discipline and Appeal Rules. On perusal the said Rule, the Reviewing Authority has power to call for the record and pass an appropriate order provided if the enhanced penalty, which the Reviewing Authority proposes to impose is a major penalty Page 75 of 79 specified in clauses (e), (f) or (g) of Rule 23 and any query as provided under Rule 25 has not already been held, the Reviewing Authority shall conduct such an enquiry with provisions of Rule 25 and thereafter consider the record of the enquiry and pass such order as it may deem fit. If the appellant authority decides to enhance the punishment, but an enquiry has already been held in accordance with provision of Rule 25, the Reviewing Authority shall give show cause notice to the employee as to why the enhance penalty should not be imposed upon him.
107. The Reviewing Authority has power under Rule 32 to issue show cause notice similar to what was issued in the present case. Rule 33 gives wide jurisdiction to the Reviewing Authority to review any Order. The Rule does not lay down any restriction as to the power of Review that such power can be exercised only if Order under review has resulted in punishment; provided the Reviewing Authority calls for the record of the case within 6 months of the final order. Further, Rule 33 does not specify within how much time the Review Authority has to take its decision to pass the final order. Only Page 76 of 79 mandate of limitation prescribed in the Rule to call for record within 6 months, undisputedly the record was called within 6 months on 19.05.1998. However, the decision to issue show cause notice was taken after going through the entire record on 03.11.1998.
108. It is not in dispute that the Disciplinary Authority had exonerated the Petitioner on 09.12.1997. Thereafter, the Petitioner himself had been representing in the Review authority against the said exoneration. On the receipt of Petitioner‟s representation, the Reviewing authority had called for the record of the case on 19.05.1998 in exercise of its power under Rule 33. Thereafter, examining the enquiry report and the entire record of the proceedings and also obtaining legal opinion, the show cause notice in question was issued. Therefore, no delay was caused by the Respondent in issuing the show cause notice.
109. In respect of the same Reviewing Authority on both the occasions, it is clear from the record that there were two persons namely one Sh. Saranjeet Singh who was present at the time of re-opening of the enquiry and one Sh. J.N. Sinha Page 77 of 79 present at the time of issuance of show cause notice. Thus, on reading Rule 33, I find no fault adopted by the Respondent as the Rule permits them to do so. The Petitioner has not challenged the virus of the Rules, therefore, the impugned show cause notice was issued as per Rules.
110. The Petitioner is fighting since 1986; the instant writ Petition is in its fourth round of litigation. In the minutes of the meeting with representative of Action committee held on 16.01.1989, wherein all pending cases were decided to be closed against the Petitioner. The impugned show cause notice was stayed vide order dt. 19.11.1998 by this Court. The litigation has attained the age of 25 years, which in any manner is not a short period. In my opinion there was not any necessity to issue the impugned show cause notice. But, the Respondent (Reviewing Authority) was determined to bring the Petitioner to a final conclusion therefore the impugned show cause notice was issued.
111. Undisputedly, the Petitioner had been a leader of the employees therefore; the higher officials were somehow against the Petitioner. The Respondent should give the quitus Page 78 of 79 in this matter. Therefore, this Court does not allow the Respondent to proceed further against the Petitioner.
112. In the interest of justice and drawing the curtains, I hereby quash the impugned show cause notice dt. 03.11.1998. Accordingly, the writ petition No. 5973/1998 is allowed.
113. Writ petition No. 4566/1998 is dismissed.
114. Writ petition No. 5973/1998 is allowed.
115. I, refrain from imposing costs in both the above writ petitions.
SURESH KAIT, J JULY 14 , 2011 Page 79 of 79