ORDER
Shyamal Kumar Sen, J.
1. In the instant writ petition the petitioner has challenged withholding of his promotion from Grade E-6 to Grade E-7, i.e., to the post of Additional Chief Minning Engineer with effect from March 2, 1990 though duly selected by the concerned Departmental Promotion Committee (DPC).
2. Briefly the facts of the case are as follows: -
The petitioner joined the nationalised Coal Company as a taken-over officer in 1971 and then joined Bharat Coking Coal Ltd. on the formation of the said Company. At the time of take-over the petitioner was in E-3 Grade as Mining Engineer. Petitioner was promoted for the first time by BCCL in June, 1973 from E-3 to E-4 Grade as Senior Mining Engineer. The petitioner was promoted on October 13, 1980 with notional effect from January 14, 1980 to E-5 Grade as Supdt. of Mines. Petitioner while working as Senior Mining Engineer as well as while working as Supdt. of Mines received several letters of commendation from the higher authorities. Copies of such letters are included in Annexure 'A' to the writ petition. Petitioner further received letters of commendation from the higher authorities while working as Supdt. of Mines in E-5 Grade. Copies of such letters are Annexure 'B' to the writ petition. Petitioner was duly promoted from E-5 Grade to E-6 Grade as Deputy Chief Mining Engineer on July 15, 1987 and was given notional seniority with effect from September 6, 1965. Petitioner had all along been discharging his duties efficiently, honestly to the satisfaction of the higher authorities. Petitioner has not received a single adverse remark in the E.R. now known as Performance Appraisal Report. Petitioner became eligible for promotion from E-6 Grade to E-7 Grade i.e. from Deputy Chief Mining Engineer to Additional Chief Mining Engineer in September, 1988. Departmental Promotion Committee for promotion of all eligible candidates from E-6 Grade to E-7 Grade in Mining discipline held meetings on December 23, 1989 and February 5, 1990. Petitioner was also considered and duly selected for promotion by the said DPC. In the selection list prepared by the aforesaid DPC petitioner's name appeared as SI. No. 80. In the seniority list petitioner's name appeared as SI. No. 106. The seniority list was forwarded by the GM (EE) BCCL to Dy. Chief Personnel Manager, Coal India Ltd., Calcutta. Petitioner came to learn that persons who are much junior to the petitioner in the said Seniority List had been promoted. But in the case of petitioner promotion has been illegally held up. Petitioner also came to know that even the person whose name appeared against SI. No. 135 in the said Seniority List too had been promoted. Under the aforesaid circumstances petitioner was constrained to move the writ petition before this Hon'ble Court on March 22, 1990.
3. Notice was servied upon all the respondents, but the respondents took several adjournments to file their affidavit in opposition to the writ petition.
5. In the meantime petitioner was served with a purported charge-sheet dated June 22, 1990. An affidavit was affirmed by the petitioner on August 20, 1990 being the reply to the said affidavit wherein the petitioner annexed a copy of the aforesaid purported charge-shcet.On the prayer of the petitioner this court was pleased to grant leave to the petitioner to challenge the purported charge sheet by means of a supplementary affidavit. Pursuant to such leave of the Court, petitioner affirmed and filed the supplementary affidavit challenging the said charge-sheet (Ref. Annexure 'A' to the affidavit-in-reply). In the supplementary affidavit petitioner annexed xerox copy of the Note sheet from which it is evident that on August 23, 1988, Chairman-cum-Managing Director, BCCL, the competent authority, only approved issuance of Censure warning to the petitioner and as such there was no formation of opinion for initiating action for major penalty by the said competent authority as falsely alleged in the respondents' first affidavit dated June 29, 1989.
6. Another affidavit was, however, affirmed on December 11, 1990 by one Asoke Kumar Mukherji on behalf of the respondent dealing with the petitioner's supplementary affidavit wherein it was alleged that there was a typographical mistake in the said Note Sheet but did not deny the genuineness of the note sheet.
7. It has been contended on behalf of the petitioner that the petitioner has obtained due promotions consistently upto the year 1987 and such promotions wipe out all past alleged misconduct.
8. In this connection following cases were relied upon by the learned advocate for the petitioner:
(1) State of Punjab v. Dewan Chuni Lal reported in : [1970]3SCR694 .
(2) The Collector of Customs v. Rebati Mohan Chatterjee reported in 1976 (2) SLR 897.
(3) Md. Halibul Haque v. Union of India, reported in 1978 (1) SLR 637.
(4) Union of India v. Md. Halibul Haque reported in 1978 (1) SLR 748.
9. It has been submitted on behalf of the petitioner that there has been inordinate and unexplained delay in issuing the charge sheet, charge sheet was issued after 17 years of alleged incident without any explanation for such delay and, as such, bad and liable to be quashed.
10. In this connection the following cases were relied upon:-
(1) The State of Madhya Pradesh v. Bani Singh, reported in 1990-II-LLJ-529
(2) Dolgobinda Kayal v.West Bengal Board of Secondary Education reported in 1991(1) CLJ 222.
11. It has also been submitted on behalf of the petitioner that the purported charges are absolutely vague. Complicity and/or involvement of the petitioner himself in charges 1 to 6 have not at all been alleged or even indicated and/or hinted at. It has further been submitted that on the vague allegation of charges the petitioner cannot be proceded against. Reliance was also pleased on the judgment and decision in the case of Surath Chandra Chakravarthi v. The State of West Bengal reported in 1971-I-LLJ-293 and in the case of Santosh Kumar Ghosh v. West Bengal State Electricity Board reported in 1988 (2) CLJ 267.
12. The matter was heard from time to time. On or about July 18, 1991 the matter was taken up for hearing and the following order was passed:
'Under such circumstances, on the facts noted above it is clear that the show-cause notice for major penalty was not really called for.
The Chairman-cum-Managing Director, Bharat Coking Coal Limited, is directed to consider afresh the said preliminary investigation report and also of the evidence tendered by the Investigating Officer in Court and will come to a fresh finding on the basis of such report. It is expected that, considering the circumstances noted above, the Chairman-cum-Managing Director, Bharat Coking Coal Ltd. will take a lenient view of the matter and will, if necessary, pass a minor penalty as recommended by the Investigating Officer. The further enquiry proceedings pursuant to the charge-sheet shall remain stayed till the disposal of the writ petition. The Chairman-cum-Managing Director will record reasons for arriving at the finding and will hear all the parties concerned. The decision taken by the Chairman-cum-Managing Director in this particular case will not have any effect on the other proceedings pending on the basis of the preliminary investigation report.
The Chairman-cum-Managing Director, Bharat Cooking Coal Ltd., is directed to file a report as to this decision in Court in a sealed cover by August 9, 1991.
Let this matter appear in the list on March 9, 1991 as 'For Further Orders'.
All parties to act on a xerox signed copy of the operative part of the dictated order to be supplied to them upon payment of requisite charges by each upon usual undertaking.'
13. The Chairman, however, submitted a report, inter alia, as follows: -
' I have carefully considered the statement of the Investigating Officer recommending minor penalty to Sri Gupta. Keeping your Lordship's directives in the highest esteem, I have examined the matter and my views are as under:
The service conditions of the Executives of BCCL vis-a-vis disciplinary actions are structured and regulated under Coal India's prescribed Scheme/Rules commonly known as 'Common Coal Cadre Scheme, 1978' and 'Conduct, Discipline & Appeal Rules, 1978' respectively. The matter for consideration before me is whether under the existing Rules of the company it was open to me to form an opinion at this stage and impose a minor penalty. The petitioner has been proceeded against for serious act of misconduct involving certain irregularities in matter of induction of imposters etc. The Management is, therefore, legally bound to proceed on the basis that the misconduct alleged against Shri Gupta which resulted in the issuance of Charge Sheet followed by a Departmental Enquiry are, subject to proof being furnished in course of enquiry itself. Hence, having regard to the relevant facts and circumstances, it may be construed improper on my part to form any opinion on the sole statement/ testimony of the Investigating Officer and I am afraid the propriety or legality of the order so passed by me without any finding of the Enquiry Officer might ultimately be taken as without jurisdiction and in violation of the Rules & Regulations. Your Lordship would, therefore, kindly appreciate that formation of any conclusive finding or any opinion by me, much less a lenient view, in absence of report may not be reasonable on the ground of non-observance of mandatory procedures of Clauses 29, 30 and 31 of the Conduct, Discipline and Appeal Rules, 1978 of Coal India Limited. Besides, one does not know, the report to be ultimately submitted by Enquiry Officer might come out with a finding which may not lead to minor penalty even.
In my humble submission, therefore, your Lordship may be pleased to direct the Enquiry Officer to proceed as against the petitioner Sri. R.N. Gupta along with others. I assure your Lordship that given necessary cooperation from the petitioner and those proceeded against, I should be able to get the enquiry concluded expeditiously. It is also submitted that the directive of the Hon'ble Court shall be kept in view while finalising the case.'
14. It appears to me since the Chairman has taken the aforesaid view of the matter, it is necessary for this Court to go into the merits of this case. It is on record from the statement (which was recorded in Court) of the Officer concerned of the vigilance department who was in charge of investigation of the case with regard to the alleged irregularly in the matter of appointment, that the petitioner was not directly involved in such appointments and that the petitioner could not be directly linked in the matter of regularisation of employment. At the material time in 1983-84 the petitioner was acting as an agent of the colliery when such alleged irregularities in the appointment took place. Petitioner, however, became eligible for promotion from E-6 Grade to E-7, i.e., from Deputy Chief Mining Engineer to Additional Chief Mining Engineer in September, 1988. It may be noted that Departmental Promotion Committee for promotion of all eligible candidates from E-6 Grade to E-7 Grade in Mining discipline held meetings on December 23, 1989 and February 5, 1990. Petitioner was also considered and duly selected for promotion by the said Departmental Promotion Committee. Surprisingly, however, instead of giving appointment to the petitioner the persons who are much junior to the petitioner got appointment although the petitioner's name appeared as Serial No. 80 in the selection list and in the seniority list as Serial No. 106. Petitioner's Promotion was withheld. Serial No. 5 was given promotion. Petitioner had to file the writ petition on March 22, 1990. During the pendency of the writ petition, the petitioner was served with a charge-sheet dated June 22, 1990.
15. The fact that the promotion was granted to the petitioner on several occasions after alleged irregularity made by the petitioner and particularly when he was selected by the Departmental Promotion Committee and nothing wrong was found against him may be construed to mean that misconduct, if any, prior to the date of promotion was in fact condoned by the authority concerned.
16. In this connection, the judgment and decision of the Division Bench of this Court in the case of Union of India v. Md. Habibul Haque reported in 1978 (1) SLR 748 may be taken note of. The aforesaid appeal was directed against the judgment of single Judge whereby the Rule obtained by the respondent under Article 226 of the Constitution was made absolute and the show-cause notice issued by the President of India for the enhancement of penalty was quashed.
17. The respondent in the aforesaid case was at the material time a Preventive Officer Grade II of the Calcutta Customs. A charge-sheet was served upon him wherein it was alleged that he committed an act of gross misconduct and thereby failed to maintain absolute integrity and devotion to duty in that on June 28, 1968 he aided and abetted in the attempt at smuggling certain articles belonging to one C.I. Rodrigues, Chief Steward of the M.V. Bampora which was lying berthed at 4, King George's Block. After an enquiry was held against the respondent, he was dismissed by the Collector of Customs. The order of dismissal was by the Collector of Customs. The order of dismissal was, however, set aside by this Court on the writ petition filed by him. Next time when the second show-cause notice was served upon him whereby he was permitted by the respondent to submit his reply to the second show-cause notice and directed the Collector of Customs to pass final orders in the disciplinary proceeding within a certain date from the date of receipt of the reply to the second show-cause notice, the Collector of Customs, after considering the reply of the respondent, passed an order awarding the penalty of reduction of pay of the respondent to the stage of Rs. 150 in the scale of Rs. 150-300 for a period of one year without cumulative effect. The respondent was also reinstated in service with immediate effect. The respondent preferred an appeal against the said order of punishment, but the appeal was dismissed. Thereafter, on July 2, 1974, he filed a memorial to the President of India. In the meantime, the respondent was promoted to the post of Preventive Officer Grade-I. After his promotion, he withdrew his memorial on November 21, 1974. In spite of that, the impugned show-cause notice was served upon him by the President of India through the Under Secretary to the Government of India purporting to act under Rule 29(1)(i) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. By that show-cause notice, it was stated inter alia that provisionally it was decided to enhance the penalty of the respondent to that of removal from service. The respondent was directed to submit his representation within one month of the receipt of the said show cause notice issued by the President of India. The learned Judge, however, took the view that as the respondent was granted promotion to the post of Preventive Officer Grade I, there was condonation of his past misconduct for which he was penalised, and that accordingly he could not be punished or that there could not be any enhancement of the penalty which he had suffered. In that view of the matter, the learned Judge quashed the impugned show-cause notice. Hence this appeal.
18. Considering the facts and circumstances of the case the Division Bench in paragraphs 4, 5, 6 & 7 observed as follows:-
'The statements in paragraphs 18 and 19 of the writ petition were not denied in the affidavit-in-opposition of the appellants, but the same were admitted. In paragraph 30 of the affidavit-in-opposition it was stated as follows:-
'30. In regard to paragraphs 18 and 19 of the writ petition I say that the petitioner has since been promoted to the post of Preventive Officer Grade I with effect from August 9, 1974 as per the findings of the Departmental Promotion Committee. Besides this, no further comment is necessary as regards the contentions of the petitioner made in the paragraph under reply.'
19. It follows from the statements made in paragraphs 18and 19of the writ petition and paragraph 30 of the affidavit-in-opposition that before granting promotion to the respondent his records were considered. It may be reasonably inferred from those statements that the authorities concerned also considered the fact that the respondent was charged for misconduct and was penalised by the reduction of his pay and that after such consideration he was found fit for promotion and was granted the promotion. The learned Judge, in our view, has rightly observed that the authorities had condoned the misconduct of the respondent for which he had been punished and his state been wiped clean. It is, however, contended on behalf of the appellants that the fact that the respondent was granted promotion in spite of the fact that he was punished is a matter to be considered by the reviewing authority. We are, however, unable to accept this contention. In our view, before issuing the show-cause notice, that authority should have taken into consideration the fact of the respondent's being promoted to the post of Preventive Officer, Grade I. The authority, therefore, did not apply its mind properly before it proposed for the imposition of the penalty of dismissal on the respondent.
20. In the facts and circumstances of the case, we are of the view that the the learned Judge was right in quashing the show cause notice.
21. For the reasons aforesaid, this appeal fails and it is dismissed but there will be no order for costs.'
19. In the case of The Collector of Customs v. Rebati Mohan Chatterjee reported in 1976(2) SLR 897 the Division Bench of this Court held, inter alia as follows:-
'It is an admitted fact that after the disposal of the Rule Nisi by the learned trial Judge and during the pendency of this appeal the respondent has been promoted to a higher post by the Customs Authorities. It is also an undisputed fact that the promotion was on the recommendation of a Committee known as the Departmental Promotion Committee. This Committee as is well known goes into the question of the merits and suitability of each candidate for promotion before making its recommendations. This Committee, as we have stated, recommended the promotion of the respondent which was acted upon by the Authorities and the recommendation was implemented during the pendency of the appeal. After all, the allegation against the respondent was of graft and corruption since he was being charged with having acquired assets disproportionate to his known sources of income. If the Customs Authorities were really serious in pressing the charge it is, in our view, unthinkable how during the pendency of this appeal they could have promoted the respondent. This action of promotion should, in our view, be held to amount to a condonation of any allegation against the respondent. After all, this Court is exercising its equitable jurisdiction in granting discretionary relief. The appellants in our view cannot be allowed to approbate and reprobate at the same time.'
20. In the case of The State of Punjab v. Dewan Chuni Lal reported in : [1970]3SCR694 a Police Sub-Inspector was allowed to cross efficiency bar although there was charge of inefficiency and dishonesty on the basis of adverse confidental reports of superior officers. The said reports related to period earlier than the year in which he was allowed to cross efficiency bar. It was held that the said report should not be considered in enquiry. The Supreme Court observed at paragraph 14 of the said judgment at page 2089 of the said report as follows:-
'In our view, reports earlier than 1944 should not have been considered at all inasmuch as he was allowed to cross the efficiency bar in that year. It is unthinkable that if the authorities took any serious view of the charge of dishonesty and inefficiency contained in the confidential reports of 1941 and 1942 they could have overlooked the same and recommended the case of the officer as one fit for crossing the efficiency bar in 1944. It will be noted that there was no specific complaint in either of the two years and at best there was only room for suspicion regarding his behaviour.'
21. In view of the principles settled by the aforesaid decision of the Supreme Court and also of this Court, I am of the opinion, since the petitioner was promoted on several occasions the allegations prior to such promotion should not be taken into account by the concerned authority and show-cause notice and charge issued after long delay should be directed to be quashed and the petitioner should be allowed to be promoted accordingly.
22. On the question if the proceeding should be quashed on the ground of inordinate delay in issuing the proceeding, the judgment and decision in the case of The State of Madhya Pradesh v. Bani Singh and Anr. reported in 1990-II-LLJ-529 may be taken note of. In that case disciplinary proceedings were initiated against him after more than 12 years. No satisfactory explanation was furnished for such inordinate delay in issuing the charge memo. Administrative Tribunal quashed the charge memo and the departmental enquiry on the ground of inordinate delay of over 12 years in the initiation of the departmental proceedings with reference to an incident that took place in 1975-76. In the order dated January 25, 1988 the Tribunal allowed the prayer for quashing the adverse entries in the ACR for the year 1979- 80 and granted the prayer for retrospective promotion to the Selection Grade from 1979 when the juniors of the respondent's batch were promoted. In regard to the third relief prayed for the Tribunal directed the Government to constitute special review committee to consider the promotion of the officer to the Super Time Scale post of DIG, with effect from the date his junior was promoted on merits in accordance with the directions given in the judgment. The appeal was filed against the said order that the Tribunal should not have quashed the proceedings merely on the ground of delay and laches and should have allowed the enquiry to go on to decide the matter on merits. The Supreme Court observed, inter alia, as follows (p-530):
'We are unable to agree with this contention of the learned counsel. The irregularities which were the subject-matter of the enquiry is said to have taken place between the years 1975-77. It is not the case of the department that they were not aware of the said irregularities, if any, and came to know it only in 1987. According to them even in April, 1977 there was doubt about the involvement of the officer in the said irregularities and the investigations were going on since then. If that is so, it is unreasonable to think that they would have taken more than 12 years to initiate the disciplinary proceedings as stated by the Tribunal. There is no satisfactory explanation for the inordinate delay in issuing the charge memo and we are also of the view that it will be unfair to permit the departmental enquiry to be proceeded with at this stage. In any case, there are no grounds to interfere with the Tribunal's orders and accordingly we dismiss this appeal.'
23. The same view has been taken by another Learned Judge of this Court in the case of Dolgobinda Kayal v. The West Bengal Board of Secondary Education and Ors. reported in 1991 (1) CLJ 222.
24. The judgment and decision in the case of Union of India and Ors. v. K.V. Janakiraman and Ors. reported in 1991-II-LLJ-570 relied upon by the petitioner may be taken note of in this connection. The Supreme Court in the aforesaid decision held that it is only when a charge memo in a disciplinary proceeding or a charge-sheet in a criminal prosecution is issued to the employee, the Sealed Cover Procedure can be resorted to only after such charge memo/ charge-sheet is issued. To deny promotion, it was further held that the disciplinary proceeding must be at the relevant time pending at the stage when charge memo has already been issued to the employee. In the present case the charge memo was issued on June 22, 1990 after the present writ petition was moved. Even Chairman-cum-Managing Director formed the opinion of issuance of such charge-sheet on or about May 16, 1990., after the present writ petition was moved. There is, therefore, no reason for withholding the promotion of the writ petitioner which was duly recommended by the Departmental Promotion Committee which held meeting in December 1989/February 1990.
25. No reason has also been assigned by the authority concerned as to why no step was taken against the petitioner if he was at all guilty of the charges since 1983-84. Charge was issued on June 22, 1990 after the writ petition was filed. Had the petitioner been really guilty of the charges the Departmental Promotion Committee could not have recommended him for promotion. The petitioner was given liberty to challenge the said charge-sheet by filing supplementary affidavit and accordingly the said charge-sheet was also challenged by the petitioner by filing the supplementary affidavit as mala fide because of the fact of unusual delay in issuing charge-sheet and also because of the fact that it was only issued after the writ petition was moved. Since only ground taken for withholding of promotion is that the petitioner's promotion could not be cleared from vigilance angle the charges were issued against the petitioner and the petitioner could not be promoted for the same does not appear to be of any basis, the petitioner in my opinion is entitled to get promotion.
26. Under such circumstances, in my opinion, the writ petitioner should succeed. The charges against the petitioner are quashed and the petitioner is entitled to be promoted.
27. In view of the principles settled by the aforesaid decision of the Supreme Court and also of this Court, I am of the opinion since the petitioner was promoted on several occasions and the allegations prior to such promotion should not be taken into account by the concerned authority and show-cause notice and charge issued after long delay should be directed to be quashed and the petitioner should be allowed to be promoted accordingly.
28. Under such circumstances, in my opinion, the writ petitioner should succeed. The charges against the petitioner are quashed and the petitioner is entitled to be promoted. There will be a direction upon the respondents to give effect to the recommendation of the Departmental Promotion Committee and to place the petitioner in a suitable post. Such posting is to be made within six weeks from the date. The petitioner, however, will be entitled to the benefit of higher salary and other benefits and seniority retrospectively from March 2, 1990.