Indian Kanoon - Search engine for Indian Law

38. Being relevant, we note the following portion of the aforesaid counter affidavit filed/adopted by NTPC in the writ petition(s) filed by Mr.Sood:-

"PRELIMINARY OBJECTIONS"

2. I further state that the petitioner has no legal right to seek Writ of Mandamus directing quashing of the show-cause notice dated 3rd November, 1998, and staying the proceedings initiated, vide said show cause notice. There is no violation of any fundamental right of the petitioner or any violation of the NTPC Conduct, Discipline and Appeal Rules, 1977 (as amended) which are applicable and govern the service condition of the petitioner with the respondent No.1/Corporation. It may be mentioned that the respondent No.2 is the Reviewing Authority in the matter of disciplinary cases (minor and major penalties) and Rule 33, it is provided that the Reviewing Authority may call for the record of the case within six months of the date of the final order and after reviewing the case, pass such order thereon as it may deem fit. The said rule further provides that if the Reviewing Authority proposes to enhanced penalty and an enquiry has already been held in accordance with the provisions of Rule 25, the Reviewing Authority shall give show-cause notice to the employee and the Reviewing Authority shall pass the final order after taking into account the representation, if any, submitted by the employee. In the present case, the Reviewing Authority has merely exercised his jurisdiction under Rule 33 of the NTPC Conduct, Discipline & Appeal Rules, 1977. The Reviewing Authority called for the records of the case on 19th May, 1998, i.e. within the period of six months and after examining the enquiry report and the entire record of the proceedings, the Reviewing Authority has issued the show- cause notice dated 3rd November, 1998 under rule 33 of the NTPC CDA Rules, 1977. There is no violation of the rules nor can any mala-fide be imputed to the Reviewing Authority, who has exercised his powers under rule 33 of the said Rules, 1977. The petitioner has no legal right to challenge or locus-standi to challenge the action of the Reviewing Authority who has issued the show-cause notice within the authority and power vested in him under the said Rules.

58. Per contra, the stand taken by NTPC was that in view of prescription contained in clause 2.8.3 of Promotion Policy that an employee who has been awarded any minor punishment will be debarred for a period of one year reckoned from the date of punishment order the promotion of Mr.Sood to the post of Junior Controller was withheld till December 12/13, 1988 i.e. a period of one year from the date (December 12/13, 1987) when minor penalty of withholding of increment was imposed upon him. By the time, Mr.Sood could be promoted to the post of Junior Controller on January 01, 1988 another minor penalty of censure was imposed upon Mr.Sood vide order dated December 30, 1988. As a result of imposition of minor penalty of censure upon him, promotion of Mr.Sood was withheld for another period of one year reckoned from December 30, 1988 i.e. the date when minor penalty of censure was imposed on Mr.Sood. When the period of withholding of his promotion finally came to an end on December 30, 1989 NTPC promoted Mr.Sood to the post of Junior Controller with effect from January 01, 1989. Thus, no fault can be found with the action of NTPC of promoting Mr.Sood to the post of Junior Controller with effect from January 01, 1989. (The aforesaid stand of NTPC has been crystallized from the afore- noted letter dated February 20, 1990 written by Sr. Personnel Officer (IR) and annexed by NTPC along with reply filed by NTPC to affidavit dated May 05, 2009 filed by Mr.Sood.)

69. This takes us to second claim made by Mr.Sood to the posts of Assistant Engineer and Sr. Assistant Engineer.

70. It is claimed by Mr.Sood that he was entitled to be promoted to the posts of Assistant Engineer and Sr.Assistant Engineer in the years 1996 and 1997 respectively.

71. Per contra, NTPC contended that Mr.Sood was not promoted in the years 1996 and 1997 because of pendency of departmental proceedings initiated against him. (It was strongly highlighted by counsel for Mr.Sood that NTPC has taken variant stands with respect to promotion of Mr.Sood in the years 1996 and 1997. It was highlighted that NTPC has contended in the counter affidavit that Mr.Sood was not entitled to be considered for promotion in the years 1996 and 1997 on account of pendency of departmental proceedings whereas in the additional affidavit dated December 13, 2002 it was contended that DPC held in the years 1996 and 1997 had considered Mr.DPC but findings/recommendations of DPC qua Mr.Sood were kept in sealed cover due to pendency of departmental proceedings initiated against Mr.Sood. Be that as it may. Nothing much turns thereon for the reason it has been averred by NTPC that findings/recommendations of DPC qua Mr.Sood kept in sealed cover were opened subsequently. It has nowhere been contended by NTPC that Mr.Sood was not fit for promotion in the years 1996 and 1997. The fact of the matter remains that NTPC denied promotion to Mr.Sood in the years 1996 and 1997 on account of pendency of departmental proceedings initiated against him).

80. The net result of the apathy of NTPC was that such promotion of Mr.Sood got withheld due to pendency of departmental proceedings initiated against him which had fallen due about ten years after issuance of charge sheet dated November 12/13, 1986 forming gravamen of departmental proceedings. And the icing on the cake is the fact that Mr.Sood was ultimately exonerated by the disciplinary authority.

81. Mr.Sood cannot be penalized for apathy/laxity/inaction of NTPC. The justice and fair play require that Mr.Sood be granted promotion to the posts of Assistant Engineer and Sr. Assistant Engineer from the date he became entitled for said promotion(s) i.e. April 01, 1993 and April 01, 1996 respectively for Mr.Sood cannot pay for action of NTPC of dragging departmental proceedings initiated against Mr.Sood for about eleven long years, more so when we find that one promotion of Mr.Sood got withheld for a period of one year on account of imposition of minor penalty, which penalty ultimately got quashed and Mr.Sood stood exonerated by disciplinary authority.