Jharkhand High Court
Mainak Dutta vs Union Of India & Ors on 22 February, 2012
1
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P(S) No. 5099 of 2009
Mainak Dutta ... ... ... Petitioner
Versus
1. The Union of India through the Secretary,
Ministry of Coal, Government of India, New Delhi
2. The Deputy Secretary, Ministry of Coal,
Government of India, New Delhi
3. Coal India Limited through its Chairman, Kolkata
4. The Central Coalfields Limited through its Chairman
cumManaging Director, Darbhanga House, Ranchi ... ... Respondents
with
W.P.(S) No. 283 of 2010
Mainak Dutta ... ... ... Petitioner
Versus
1. The Coal India Limited through its Chairmancum
Managing Director, Kolkata
2. The Central Coalfields Limited through its Chairman
cumManaging Director, Darbhanga House, Ranchi
3. The Union of India through the Secretary,
Ministry of Coal, Government of India, New Delhi
4. The Central Vigilance Commission, through its
Director, New Delhi
5. The Public Enterprises Selection Board, though its
Chairman, New Delhi ... ... Respondents
For the Petitioner : M/s Anil Kumar Sinha, Sr. Advocate, Saurav Arun
Krishna Shankar, Abhishek Sinha, Advocates
For the Union of India : M/s Md. M. Khan, ASGI,, Ashok Singh
For the C.C.L. : M/s A.K. Mehta, A.K. Sinha, Advocates
PRESENT
HON'BLE MRS. JUSTICE POONAM SRIVASTAV
20/22.02.2012Heard Shri A.K. Sinha, Sr. Advocate, assisted by M/s Saurav Arun, Deepak Kumar Dubey, Krishna Shankar, Abhishek Sinha, on behalf of the petitioner and Md. Mokhtar Khan, ASGI and Shri Ashok Singh, Advocate, on behalf of Union of India as well as Shri A.K. Mehta on behalf of the Central Coalfields Limited (CCL), Respondent No. 5.
The prayer in the instant writ petition is for quashing the letter dated 07.09.2009 (Annexure 7) whereby the Coal India Limited directed the Chairman cumManaging Director of Central Coalfields Limited, Ranchi to initiate departmental proceedings against the petitioner for minor penalty and also a direction in the nature of Mandamus for issuance of letter of appointment/promotion 2 to the post of Director, Technical, Central Coalfields Limited in terms of recommendation made by Public Enterprises Selection Board (PESB).
The petitioner was working as Chief General Manager (M3 Grade) in Piperwar Area under Central Coalfields Limited, Ranchi. In July, 2006, the Vigilance Cell of C.C.L. Questioned the petitioner regarding certain expenditure in maintenance of official quarter of the Department at Dakra during the intervening period of the year 1998 2001. No enquiry proceedings were drawn against the petitioner, however, a questionnaire was handed over to the petitioner which was duly replied on 12.07.2006, which is annexed as Annexere 1 to the writ petition. The petitioner received an order dated 25.10.2006 issued by the Chairmancum Managing Director of C.C.L. 'cautioning the petitioner' in performance of his duty while exercising his official powers in future. The order dated 25.10.2006 is Annexure 2 to the writ petition. The petitioner represented before the Chairman cumManaging Director, C.C.L., Darbhanga House, Ranchi, to reconsider the entire matter and the competent authority, vide order dated 01.09.2008 recalled the order dated 25.10.2006. The order of withdrawing the previous order dated 25.10.2006 is Annexure 3 to the writ petition. Meanwhile, the petitioner was also granted promotion from GradeM2 to M3, vide order dated 27.11.2007 (Annexure 4 to the writ petition). The petitioner received an intimation, vide letter dated 20.03.2009 that he has been shortlisted for the post of Director, Technical, Central Coalfields Limited by Public Enterprises Selection Board (PESB) and he was asked to appear before the Chairman, PESB (Annexure 5 to the writ petition).
According to the submission of the petitioner, the Board found the petitioner fit to be selected on the post of Director, but no such information regarding the selection was received by him. On the other hand, similarly placed candidates, namely, Mr. Gopal Singh and Mr. N. Kumar, were appointed as Director, copies of those letters are Annexures6 and 6/1. Subsequently, the petitioner came to know that the Vigilance Cell of Coal India Limited issued the impugned letter dated 3 07.09.2009 to initiate a departmental proceeding for minor penalty, pursuant to an advice by Central Vigilance Commission.
Learned counsel submits that this departmental proceedings was in respect of the same alleged charges regarding construction/maintenance of the quarter during the period from 199798 to 200001 regarding which petitioner was earlier "cautioned" and the same was withdrawn subsequently. The emphasis of the learned counsel is that though the petitioner was cautioned, but the same was withdrawn after a representation/appeal was made by the petitioner, thereafter he was also granted promotion.
The petitioner preferred the instant writ petition on 07.11.2009 and an order was passed on 20.11.2009 allowing one month time to the Union of India for filing counter affidavit, taking notice of the fact that the list recommended by P.E.S.B. will expire on 08.03.2010 and after lapse of one year the panel will die a natural death. The Union of India was further directed by means of the said interim order to take a decision with regard to the final selection on the post of Director, Technical, before the panel expires. It was also directed that in case the Ministry of Coal decides to attach any value to the impugned letter dated 07.09.2009 (Annexure 7 to the writ petition), it will do so only after taking into consideration the contents of Annexures 2 and 3 of the writ petition. The petitioner was permitted to submit a certified copy of the order before Respondent No. 1 the Sectretary, Ministry of Coal, Government of India, within ten days.
During pendency of this writ petition, no decision was taken by the Union of India with regard to appointment to the post of Director, Technical, C.C.L., pursuant to the direction of this Court, vide order dated 20.11.2009. A memorandum letter dated 15.01.2010, was issued to the petitioner proposing to take action against him under Rule 31 of Coal India Executives' Conduct, Discipline and Appeal Rules, 1978. The charges were the same in respect of which caution was issued to the petitioner in the year 2006 and subsequently withdrawn by means of Annexures 2 and 3 respectively. The subsequent departmental proceeding was challenged in W.P.(S) 4 No. 283 of 2010 and this Court, once again passed an order dated 23.03.2010 quoting its earlier order dated 20.11.2009 and questioning the respondents why decision was not taken, pursuant to the Court's earlier direction. Once again, four weeks' time was allowed to the respondents to file counter affidavit. However, proceedings, pursuant to the memorandum dated 15.01.2010 (Annexure 12 to the Writ Petition No. 283 of 2010) was stayed and the stay order continues to be operative even today.
Submission of the learned senior counsel is manifolds. Firstly, that the Union of India, though has filed counter affidavit in both the writ petitions, but failed to disclose anywhere nor enclosed a single document to substantiate why the petitioner's name was not considered, despite his name finds place in the panel for selection to the post of Director, Technical. Secondly, the respondents did not take a decision despite there being a specific direction by this Court in W.P.(S) No. 5099 of 2009. No reason has been assigned by the respondents. It is also stated that no doubt, the panel prepared is for one year, but in view of a number of decisions of the Apex Court, once a writ petition is filed and an order is passed by Court to consider the empanelled candidates, the panel cannot exhaust on account of pendency of the writ petition. The other argument is that C.V.C. is only an advisory body and not a controlling authority of C.C.L. and C.I.L. Apparently, the stance of the respondent is biased and only with an intention to deny promotion to the petitioner. The initiation of subsequent proceeding is also eloquent of the attitude on the part of the respondents. Besides, punishment of "caution" is not provided in the Rules and the second departmental proceedings for the same cause of action, cannot be commenced and, therefore, Annexure 7 is a document liable to be considered as nonest. Lastly, the senior counsel has stressed that the petitioner was granted promotion subsequent to the order of "caution" and, therefore, if any allegation or punishment was against the petitioner, it stood wiped off after his promotion and also that the charges pertain to the year 199798 to 200001 i.e. much beyond the period of five years and action of the respondents is against all settled principles of 5 law, no departmental proceedings should be drawn after a lapse of more than five years, specially when the candidate is being considered for a promotion or selection to a higher post. Several decisions have been cited by the learned counsel in support of the aforesaid contention.
Counsel appearing on behalf of the Union of India emphatically submits that the panel has long expired and it cannot be allowed to subsist after one year and, therefore, writ petitions have become infructuous. The panel was prepared on 07.04.2009 and we are in the year 2012, therefore, the petitioner is not entitled to any relief whatsoever. The next argument on behalf of the Union of India is that empanelment of the candidate or the recommendation of the Selection Committee is not mandatory and, therefore, the claim of the petitioner is without any basis.
While replying the submissions on behalf of the respondents, the contention on behalf of the petitioner is that no doubt, recommendation is not mandatory, but there has to be cogent reasons to deprive the petitioner of his rightful claim. Besides, the specific objections and directions of this Court have deliberately been bypassed by the respondents and the petitioner is deprived of even consideration his selection on the basis of allegations and aspersions, which did not exist at the relevant time. Besides, initiation of departmental proceeding for the same alleged charges which have been withdrawn by the respondents themselves speaks volumes and judicial notice is to be necessarily taken. The respondents have acted in complete violation of all settled norms of service jurisprudence.
I have carefully considered the submissions on behalf of the respective parties, gone through the record and also the various citations placed before me. The undisputed fact is that the petitioner was 'cautioned' for an excess expenditure approximately 2.80 lacs on repair and maintenance of Qr. No. D3, G.M. Colony, Dakra, during the period from 199798 to 200001. The petitioner had made a representation against the said order of cautioning, which was allowed by the competent authority, vide order dated 25.10.2006. Thus, the remark or entry of "caution" stood obliterated. Thereafter, the petitioner was promoted to the next 6 higher post. It is also an admitted fact that the petitioner was one of the empanelled candidate for the post of Director, Technical, which was a selection post and it was only on a subsequent date, the vigilance objection was raised to the effect that the direction of the Central Vigilance Commission is contrary to the guidelines dated 31.08.2004. This, according to the respondents themselves, the only reason for withholding the petitioner's 'consideration for selection' to the post of Director, Technical, is a remark or punishment which was removed by the department itself. The inevitable conclusion is that the CVC denied clearance of the empanelled candidate is borne out from the record itself that when the action of the respondent was challenged in the instant writ petition and this Court issued direction to decide the question of selection from the list before the panel exhausted and a further direction that in case the impugned letter dated 07.09.2009 is taken into consideration at the time of selection then the two other letters (Annexures 2 and
3), which is the order of 'caution' and its withdrawal should also be read along with the said letter, was the reason that led to initiation of second proceedings. The respondents paid no heed to the direction of the Court dated 20.11.2009, instead went ahead and issued a memo of charge which was challenged in the second writ petition. The Court's order regarding selection to the post of Director, Technical should have been finalized before March, 2010, but this direction was also bypassed. The respondents castigated the petitioner and deferred the decision on the basis of certain charges which completely stood wiped off. Thus, it does not lie in the mouth of the respondent to say that panel prepared in the year 2009 is no more in existence. In the case of Bharat Sanchar Nigam Limited & Ors. Vs. Abhishek Shukla & Anr., (2009) 5 SCC 368, it was held that validity of the selection list is ordinarily one year and in case specific directions of the Court regarding the consideration of selection before the panel exhausted can, by no stretch of imagination, deprive the petitioner of his claim to the post. The Apex Court has laid down this principle long back in the Case of State of U.P. Vs. Ram Swarup Saroj, (2000) 3 SCC 699. It was held that when a writ petition is filed within the period the panel was alive i.e. one 7 year, the high courts could not deny relief because constitution of panel expire during the continuation of litigation, more so when vacancies were available for making appointment. In the circumstances, the objections taken by the respondent that the period for which the panel was prepared has now expired, is of no consequence.
I am also conscious of the fact that the allegation of excess expenditure towards maintenance charges of quarters pertain to the year 199798 to 200001 and the proceedings for the first time were initiated in the year 2006 i.e. after a lapse of five years. The only adverse order against the petitioner was that of 'caution' which also stood quashed in appeal and the subsequent promotion to the next higher post is more than sufficient to arrive at a conclusion that there was no occasion for the respondents to oust the petitioner from the consideration zone for selection on the basis of an objection of CVC. Obviously, the ChairmancumManaging Director, C.C.L. passed an order on 01.09.2008 (Annexure 3) withdrawing the remark of 'caution', besides, the petitioner was also granted promotion from Grade M2 to M3 after due clearance from the vigilance. Thus, the adverse remark, if any, stood wiped off. The petitioner was duly intimated, vide Annexure5 that he has been shortlisted and found fit to be considered for the post of Director, Technical, C.C.L. by Public Enterprises Selection Board, consequent thereto, he appeared before the P.E.S.B., his name was recommended. The guidelines issued by the CVC to all public undertakings, vide Annexure 8 clearly provide that any complaint or cases more than five years old should not be investigated and no cognizance should be taken after a lapse of such a long period. Thus, in my view, the action of the respondents on the face of it, is apparently against all judicial norms, principles of natural justice and illegal.
In my opinion, the argument on behalf of the respondents that the recommendation by the Selection committee is not mandatory and the respondents are not bound to grant promotion/selection, only for the reason he is one of the persons whose name figure in the panel prepared by the P.E.S.B., is fully justified, 8 but in the instant case, the petitioner is completely eliminated from consideration, not only this, on the contrary, fresh departmental proceedings are commenced for a complaint which was withdrawn and he is promoted to the next higher grade. Besides, recommendation in his favour for grant of a selection post is also made by the department.
Md. Mokhtar Khan, ASGI, has heavily relied on a decision of the Hon'ble Supreme Court in the case of Punjab State Electricity Board & Ors. Vs. Malkiat Singh, (2005) 9 SCC 22. The emphasis is that mere inclusion of name of the candidate in the select list does not confer on him any vested right to get appointment. I am in complete agreement with the submission that the petitioner is not entitled for the letter of appointment/selection only because his name finds place in the panel prepared by P.E.S.B., but at the same time, he cannot be deprived and ousted from the consideration zone in the manner it has been done in the present case.
The issuance of memo of charge after institution of the instant writ petition and specially the allegations in respect of which an appeal was preferred and the order was withdrawn cannot be permitted to commence all over again, specially after a lapse of such a long period. No satisfactory reason is given for the inordinate delay in issuing the charge memo in the year 201011 for something done in the year 199798 to 200001 and also the petitioner was subjected to the departmental proceedings which ended in withdrawal of adverse remark apparently, appears to be high handed. The proceedings were stayed, vide order dated 23.03.2010 in W.P.(S) No. 283 of 2010 and, therefore, in my opinion, the second proceedings in respect of the same charges is liable to be quashed. The memorandum dated 15.01.2010 along with the articles of charges issued under the signature of ChairmancumManaging Director and Disciplinary Authority, Coal India Limited is hereby quashed.
The Writ Petition No. 283 of 2010 is accordingly allowed.
In view of what has been stated above, the Writ Petition No. 5099 of 2009 is disposed of quashing the letter dated 07.09.2009 (Annexure 7). A further direction to the respondents to complete the process of selection amongst the empanelled 9 candidates for the post of Director, Technical, C.C.L., in terms of recommendation made by Public Enterprises Selection Board (P.E.S.B.), vide Annexure5 dated 20.03.2009, within a period of three months from today without being prejudiced by the present proceedings.
The Writ Petition No. 5099 of 2009 is accordingly disposed of in the aforesaid terms.
(Poonam Srivastav, J.) Manish