Madras High Court
K.Karthikeyan vs Indian Oil Corporation Limited on 21 November, 2014
Author: M.M.Sundresh
Bench: M.M.Sundresh
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON: 19.11.2014
DATE OF DECISION: 21 .11.2014
CORAM:
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
W.P.No.18765 of 2013
& M.P.No.1 of 2013
K.Karthikeyan ... Petitioner
Vs.
1.Indian Oil Corporation Limited,
rep.by the Executive Director (HR), Co.,
Corporation Office: Plot No.3079/3,
Sadiq Nagar, J.B.Tito Marg,
New Delhi 110 049
2. Indian Oil Corporation Limited,
rep.by the Executive Director (HR), Ho,
Registered Office & Marketing Division
Head Office, Indian Oil Bhavan,
G-9, Ali Yavar Jung Marg,
Bandra (East), Mumbai 400 051
3. The General Manager (HR),
Indian Oil Corporation Limited,
Southern Region,
139, Nungambakkam High Road,
Chennai 600 034. .. Respondents
PRAYER: Writ Petition filed under Article 226 of the Constitution of India for the issuance of a Writ of Mandamus directing the respondents to open the sealed cover and to include the name of the petitioner for promotion to the post of Grade-G Officer in the 1st respondent Corporation with retrospective effect, on the basis of the DPC-2013, at the appropriate place to which he is eligible and grant promotion with all consequential rights and service benefits to the petitioner.
For Petitioner : Mr.C.K.Chandrasekar
For Respondents : Mr.G.Masilamani,Sr.Counsel
for Mr.S.Raveendran for
M/s.T.S.Gopalan & Co.,
ORDER
The petitioner herein joined the service of the respondent as Officer Trainee in the year 1985. Thereafter, he was working as a Chief (Employee Relation) Manager in F Grade at Eastern Region, Kolkatta. At present, the petitioner is working as Chief Law Manager in F Grade at Chennai. The next promotion avenue for the petitioner is Grade G. The petitioner became eligible for promotion in the year 2012.
2. The respondents issued promotion policy after adopting DOPT OM dated 14.09.1992 on 08.02.2012. The Departmental Promotion Committee met and selected the officers on 25.02.2013 and 12.02.2013. The petitioner's name was considered and included in the promotional panel.
3. On 19.03.2013, a decision was taken by the Disciplinary Authority to initiate proceedings. On 26.03.2013, a resolution was passed by the respondents regarding promotion followed by Circular dated 28.03.2013. In pursuant to the decision taken to enquire about certain illegality said to have been committed by the Officers of the respondents, the Central Bureau of Investigation took up investigation and thereafter, filed a closure report on 30.03.2013 as no sufficient material was available to proceed further against any officer. In pursuant to the tentative decision taken, the petitioner's name was not included in the promotion panel issued in the month of April, 2013. It was informed by the Department to the petitioner by way of a reply given under the Right to Information Act dated 17.05.2013 that he was placed 12th in the panel with 86.690 marks and upto 71st rank person with 81.75 marks have been promoted. The petitioner was also informed by a subsequent reply dated 03.06.2013 that his name is kept under sealed cover and his juniors were promoted to Grade G. In those circumstances, the petitioner has filed the present writ petition seeking a direction to the respondents to open the sealed cover and to include the name of the petitioner for promotion to the post of Grade G officer in the first respondent Corporation with retrospective effect, on the basis of the DPC-2013, at the appropriate place to which he is eligible and grant promotion with all consequential rights and service benefits to the petitioner. By way of subsequent development, after filing of the writ petition, a charge sheet was issued to the petitioner on 06.09.2013.
4. Submissions of the Petitioner:-
The learned counsel appearing for the petitioner submitted that on the date of the consideration for promotion, there was no departmental proceedings pending against the petitioner. The subsequent charge sheet issued after filing of the writ petition cannot be a basis to deny the entitlement of the petitioner for promotion. Even the charge levelled against him is frivolous. The respondent, after accepting the applicability of DOPT OM dated 14.09.1992, has taken a different stand in the counter affidavit by relying upon the Circular dated 26.03.2013. The said Circular, even assuming is applicable, cannot be put against the petitioner retrospectively. In support of his contentions, the learned counsel appearing for the petitioner has made reliance upon the following decisions.
(1) Union of India Vs. K.V.Jankiraman ((1991) 4 SCC 109);
(2) Union of India Vs. Tushar Ranjhan Mohanty, ((1994) 5 SCC 450);
(3) Union of India Vs. Dr.Sudha Salhan ((1998) 3 SCC 394);
(4) Coal India Ltd. Vs. Saroj Kumar Mishra, ((2007) 9 SCC 625);
(5) Union of India Vs. Sangram Keshari Nayak, ((2007) 6 SCC 704);
(6) Union of India Vs. Anil Kumar Sarkar, (2013) 4 SCC 161;
(7) E.Pitchaimari Vs. The Special Commissioner and Transport Commissioner, Chepauk, Chennai 5 (Unreported decision of the Division Bench dated 10.4.2008 in W.A.No.115 of 2008 on the file of High Court of Madras);
(8) G.Venkatachalam Vs. Special Commissioner and Commissioner of Revenue Administration ((2013) 5 MLJ 59);
(9) P.Chinnadurai Vs. The Secretary to Government, Commercial Taxes & Registration Deparmtent and another, (Unreported decision dated 15.9.2009 in W.P.No.1277 of 2009 on the file of High Court of Madras);
(10) V.Ramesh Vs. The General Manager, UCO Bank and another, (Unreported decision dated 20.7.2011 in W.P.Nos.10098 and 15734 of 2009 and 20141 of 2010 on the file of High Court of Madras);
5. Submissions of the Respondents:-
The learned Senior Counsel appearing for the respondents submitted that considering the seriousness of the allegations against the petitioner, he was not promoted. A charge sheet was issued against the petitioner subsequently and he is facing departmental proceedings. In the event of charges being not proved, the petitioner can get all the benefits. There is no right vested with the petitioner for seeking promotion. Hence, it is submitted that the writ petition will have to be dismissed.
DISCUSSION:-
6. The facts as narrated above are not in dispute. Admittedly, at the time of either drawing the panel and thereafter, there was no departmental proceedings initiated against the petitioner. Perhaps, that is the reason why, though the petitioner was considered for a promotion, his name has been kept in the sealed cover. The tentative decision was taken only on 19.03.2013. Even the said decision is not against any Officer, as it made to probe into certain incident alleged to have been happened in the department. The Central Bureau of Investigation has also closed its report on 30.03.2013. It is also not in dispute that the persons juniors to the petitioner have been promoted. His placement in the juniors is also not disputed, as he had obtained 86.690 marks. It is settled law that in a departmental proceedings, the initiation would start with the issuance of charge memo. In the absence of any initiation by way of such issuance of a charge memo, an officer cannot be denied promotion. The issue involved in this writ petition is no longer res integra. Considering the same, the Supreme Court, in Union of India Vs. Anil Kumar Sarkar, (2013) 4 SCC 161, was pleased to hold after relying upon the earlier decisions rendered in Coal India Ltd. Vs. Saroj Kumar Mishra, (AIR (2007) SC 1706), Chairman cum Managing Director, Coal India Limited and others V. Ananta Saha and Others ((2011) 5 SCC 142), Union of India Vs. K.V.Jankiraman ((1991) 4 SCC 109) and Uco Bank V. Rajinder Lal Capoor ((2007) 6 SCC 694), as follows:
17. .............. In para 17, this Court further held: (Union of India v. K.V.Janakiraman, (1991) 4 SCC 119) ''17. ...... Conclusion 1 should be read to mean that the promotion etc. cannot be withheld merely because some disciplinary/criminal proceedings are pending against the employee. To deny the said benefit, they must be at the relevant time pending at the stage when charge-memo/charge-sheet has already been issued to the employee. After finding so, in the light of the fact that no charge sheet was served on the respondent-employee when the DPC met to consider his promotion, yet the sealed cover procedure was adopted. In such circumstances, this Court held that (K.V. Janikiraman case, SCC p.124, para 32) 32....The Tribunal has rightly directed the authorities to open the sealed cover and if the respondent was found fit for promotion by the DPC, to give him the promotion from the date of his immediate junior Shri M. Raja Rao was promoted pursuant to the order dated April 30, 1986. The Tribunal has also directed the authorities to grant to the respondent all the consequential benefits. We see no reason to interfere with this order. The appeal, therefore, stands dismissed. (emphasis supplied)
18.The principles laid down with reference to similar office memorandum are applicable to the case on hand and the contrary argument raised by the appellant-Union of India is liable to be rejected.
1. Union of India V. K.V.Janakiraman ((1991) 4 SCC 109: 1993 SCC (L&S) 387 : (1993) 23 ATC 322:
19. In Coal India Limited & Ors. vs. Saroj Kumar Mishra, AIR 2007 SC 1706, this Court, in para 22, has held that 18. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.
20. In Chairman-cum-Managing Director, Coal India Limited and Others vs. Ananta Saha and Others, (2011) 5 SCC 142, this Court held as under:
27. There can be no quarrel with the settled legal proposition that the disciplinary proceedings commence only when a charge-sheet is issued to the delinquent employee. (Vide Union of India v. K.V. Jankiraman, (1991) 4 SCC 109 and UCO Bank v. Rajinder Lal Capoor, (2007) 6 SCC 694)
21. We also reiterate that the disciplinary proceedings commence only when a charge sheet is issued. Departmental proceeding is normally said to be initiated only when a charge sheet is issued.
22. Learned ASG, by drawing our attention to the decision of this Court in Union of India and Another vs. R.S. Sharma, (2000) 4 SCC 394 submitted that in spite of decision of this Court in Jankiraman case (supra) in view of para 7 of the office memorandum and in the light of the fact that proceedings were initiated both criminal and departmentally, the High Court committed an error by overlooking para 7 of sealed cover process and contended that the direction issued by it cannot be sustained. We have carefully gone through the factual position and the ultimate ratio laid down by this Court in R.S. Sharmas case (surpa). Even though in the said decision, this Court has distinguished the decision in Jankiraman case (supra) and held that the same is not applicable to its case, in the light of the conditions mentioned in para 2 as well as para 7 of the office memorandum dated 14.09.1992 and of the categorical finding that none of the conditions mentioned therein has been fulfilled, we are of the view that the decision in R.S. Sharma case (supra) is not helpful to the case of the appellant.
7. In view of the above said pronouncement, the legal position is very explicit that merely because an informal enquiry is initiated against an alleged incident and the same is at the preliminary stage, an employee cannot be denied promotion. Therefore, in the light of the said pronouncement, this Court is of the view that the petitioner is entitled to succeed.
8. Coming to the second submission made on behalf of the learned Senior Counsel appearing for the respondents, this Court is of the view that the respondents have taken a contrary view in the counter affidavit regarding the application of DOPT OM dated 14.09.1992. The reliance made upon the Board's resolution dated 26.03.2013 cannot be made applicable to the present case retrospectively. Even otherwise, in the present case, the CBI has filed the closure report on 30.03.2013. Therefore, the circular also cannot have any application as it is applicable to a case where the Vigilance have recommended for initiation of penalty proceedings. From the facts, it is clear that but for the tentative decision taken, the petitioner would have been promoted along with others. Therefore, on facts, the decision made by the Board followed by the Circular cannot have application to the case on hand.
9. Accordingly, the writ petition stands allowed. Consequently, the respondents are directed to open the sealed cover and include the petitioner's name in the promotion of Grade G Officer on the basis of DPC-13 at the appropriate place to which he is eligible and grant promotion with all consequential benefits within a period of eight weeks from the date of receipt of a copy of this order. It is also made clear that the order passed in this writ petition will not stand in the way of the respondents proceeding further against the petitioner in accordance with law in pursuant to the charge memo dated 06.09.2013. However, there is no order as to costs. Consequently, connected miscellaneous petition is closed.
21.11.2014 Index Yes/No raa Note:-Issue order copy on 24.11.2014 To
1.The the Executive Director (HR), Co., Indian Oil Corporation Limited, Corporation Office: Plot No.3079/3, Sadiq Nagar, J.B.Tito Marg, New Delhi 110 049
2. The Executive Director (HR), Ho, Indian Oil Corporation Limited, Registered Office & Marketing Division Head Office, Indian Oil Bhavan, G-9, Ali Yavar Jung Marg, Bandra (East), Mumbai 400 051
3. The General Manager (HR), Indian Oil Corporation Limited, Southern Region, 139, Nungambakkam High Road, Chennai 600 034.
M.M.SUNDRESH, J.
raa Pre-Delivery Order in W.P.No.18765 of 2013 21.11.2014