Calcutta High Court
Dibyajyoti Ghosh vs Coal India Ltd And Ors on 5 March, 2024
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
OD-10
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
ORIGINAL SIDE
WPO/1348/2023
DIBYAJYOTI GHOSH
VS
COAL INDIA LTD AND ORS
BEFORE:
The Hon'ble JUSTICE RAJASEKHAR MANTHA
Date : 5th March, 2024.
Appearance :
Mr. Partha Ghosh, Adv.
Mr. Amal Kumar Datta, Adv.
Ms. Simran Sureka, Adv.
Mr. Debashis Das, Adv.
... for the petitioner.
Mr. Varun Kedia, Adv.
Mr. Avee Jaiswal, Adv.
... for the respondent.
The Court : - 1. Affidavit-in-opposition and reply filed in Court are taken
on record.
2. The petitioner challenges an order dated 16th November, 2022
passed by the CMD pursuant to the directions of a coordinate Bench in a
judgment and order dated 27th September, 2022 passed in
WPA/24815/2016.
3. The brief facts relevant in the case are that the writ petitioner was
issued a charge sheet for acts of misconduct. The disciplinary authority
imposed a punishment of withholding of increments. On an appeal being
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preferred by the appellant, the appellate authority on 3rd February, 2023
reduced the punishment to 'censure'.
4. During the pendency of the disciplinary proceedings, there was a
Departmental Promotion process (DPC) in 2013 conducted by the
respondents for promotion from E-4 to E-5 Grade. The petitioner was
allowed to participate in the said promotion process. He came to be
recommended for promotion. However, the said promotion was kept on
hold due to the pendency of disciplinary proceedings.
5. After conclusion of the disciplinary proceedings and in view of the
penalty awarded albeit minor penalty(Censure), the promotion of the
petitioner from E-4 to E-5 was declined. The petitioner was thereafter
however promoted in the subsequent DPCs. He is presently holding the
Grade of E-7.
6. By the impugned order, the promotion with retrospective effect
from the year 2013 was denied to the petitioner on the ground that there
was a penalty of 'Censure', imposed on him for the said period.
7. Mr. Partha Ghosh, learned Counsel appearing for the petitioner
would argue by reference to the Conduct Discipline and Appeal Rules of
Coal India Limited exemption of 1978 that minor penalties provided
under Rule 27.1(i) are a) Censure, b) withholding of increments, c)
withholding of promotion, d) recovery from pay of whole or part of
pecuniary loss. It is argued by Mr. Ghosh that Censure being the lowest
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grade of penalty and withholding of promotion being the third lowest
grade i.e. higher than Censure, the writ petitioner should not be deprived
of promotion as the same would amount to imposing two penalties on
him i.e. Censure and withholding of promotion.
8. At first glance it would appear that there is substance in the
arguments advanced.
9. However, it is now a well-settled proposition of service
jurisprudence that a promotion process undertaken during pendency of
the departmental proceedings would normally follow a sealed cover
procedure i.e. the result of a promotion process is kept undisclosed to
the employer as well as the employee by the DPC.
10. In the instant case the petitioner was found entitled to promotion
subject to departmental proceedings.
11. Once a penalty albeit minor is imposed on an employee, the same
is required to be taken into consideration by the DPC even ex post facto
while deciding whether the candidate would be given the benefit of
promotion or not.
12. Withholding of promotion as a penalty under Rule 27.1. (i) (supra)
would imply in the peculiar facts and circumstances of the case that,
either that the person would not be entitled to participate in the
promotion process or a promotion already given could be recalled.
13. An employee against whom a disciplinary proceedings results in a
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penalty of Censure, has a stigma on his career.
14. It may be noted herein that in the judgment dated 27th September,
2022 (supra) the coordinate Bench had not set aside the penalty of
Censure.
15. It is equally well settled that a quantum of penalty imposed by an
employer in a departmental proceedings is generally not interfered with
unless the same is shockingly disproportionate to the charges proved
against the concerned employee. Reference in this regard is made to the
decision of the Supreme Court in the case of Ranjit Thakur Vs. Union of
India reported in (1987) 4 SCC 611 and the case Union of India Vs. G.
Ganayutham reported in (1993) 7 SCC 463 Applying the doctrine of
proportionality, the Supreme Court had laid down the circumstances
under which the penalty imposed by an employer in course of
departmental proceedings can or should be interfered with.
16. In the backdrop of the above, except for commenting on the
penalty imposed on the writ petitioner, the coordinate Bench in the
judgment dated 27th September, 2022 has not disturbed the order of
penalty of Censure imposed on the petitioner. The penalty even
otherwise is the mildest of the minor penalties imposeable on an
executive by the management of CIL. Such penalty could not have been
interfered with.
17. In the backdrop of the above discussion, this Court is of the view
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that the CIL cannot be faulted for depriving the petitioner of the benefit
of promotion from E-4 to E-5 Grade in the year 2013 in view of the
penalty of Censure imposed on him.
18. For the reasons stated herein above, the writ petition fails and is
hereby dismissed.
19. Urgent certified website copy of this order, if applied for, be made
available to the parties subject to compliance with the requisite
formalities.
.
(RAJASEKHAR MANTHA, J.) SN/mg