Sumit Majumdar Vs. Coal India Ltd. and Ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/51409
CourtKolkata High Court
Decided OnMay-13-2015
JudgeArijit Banerjee
AppellantSumit Majumdar
RespondentCoal India Ltd. and Ors.
Excerpt:
in the high court at calcutta constitutional writ jurisdiction original side wp no.790 of 2014 sumit majumdar -vs.coal india ltd.& ors.before: : the hon’ble justice arijit banerjee for the petitioner : mr.partha ghosh, adv.for the respondents : mr.susanta pal, adv.mr.p.basu, adv.me. sudhakar misra, adv.heard on : 31/03/2015, 22/04/2015 cav on : 29/04/2015 judgment on : 13/05/2015 arijit banerjee, j.: (1) in this writ application the petitioner prays for a writ of mandamus, commanding the respondent authorities to grant promotion to the petitioner in terms of the office order dated 22nd september, 2008 issued by the general manager (personnel).coal india ltd.along with all consequential benefits and full back wages with interest and further promotion in terms of the office order dated 20th september, 2013 and 25th september, 2013 issued by the chief manager (personnel/ee) of eastern coalfields ltd.along with all consequential benefits and back wages with interest. the facts of the case briefly stated are as follows:- (2) the petitioner is working as manager (finance) kajora area, eastern coalfields ltd.(3) while the petitioner was posted as senior accounts officer in s.p mines area, chirta, deoghar, jharkhand, a charge-sheet was issued to him under cover of a memorandum dated 12th september, 2007 issued by the chairman-cum-managing director of the eastern coalfields ltd.by the said memorandum the petitioner was informed that a domestic enquiry would be held against him for having committed alleged acts of irregularity in the discharge of his duty. the petitioner was asked to submit his written statement of defence. the enquiring authority by his report dated 21st april, 2008 exonerated the petitioner of the charges brought against him. (4) the chairman-cum-managing director of eastern coalfields ltd.acting as disciplinary authority, however, disagreed with the finding of the enquiring authority. the disciplinary authority by his order dated 24th june, 2010 held that the charge against the petitioner was proved and imposed a penalty on the petitioner of reduction of pay by one stage for a period of one year without cumulative effect. (5) the petitioner preferred a departmental appeal before the chairman, cold india ltd.the appellate authority by its order dated 9th september, 2011 confirmed the penalty imposed on the petitioner by the disciplinary authority. (6) the petitioner challenged the aforesaid punishment by filing a writ petition in this court being wp no.76 of 2012. this court by its order dated 25th june, 2013 set aside the order of the appellate authority primarily on the ground that the same was not supported with reasons. the matter was remanded to the appellate authority for re-adjudication of the appeal after giving an opportunity of hearing of all necessary parties. (7) upon remand, the appeal against the order of the disciplinary authority was adjudicated afresh and by an order dated 19th december, 2013 the appellate authority moderated the penalty imposed by the disciplinary authority and allowed the appeal by issuing a ‘caution’ with an advice to the petitioner to be more careful in dealing with similar cases in future. (8) in the meantime, a promotional order dated 22nd september, 2008 was issued by the coal india ltd.promoting certain accounts officer including the petitioner, to the post of deputy financial manager in e-4 grade. however, the petitioner was denied such promotion by the eastern coalfields ltd.the representations of the petitioner in that regard were all in vain. (9) a further promotional order was issued by the coal india ltd.on 20th september, 2013 but the petitioner was excluded from the purview of such order. (10) after the appellate authority moderated the penalty that had been imposed by the disciplinary authority on the petitioner from one of ‘reduction of pay by one stage for a period of one year without cumulative effect’ to ‘caution’ the petitioner made representations to the respondent authorities for granting him the promotion that he had been denied. however, such representations were in vain. being aggrieved the petitioner is before this court by way of the instant writ petition. (11) appearing on behalf of the writ petitioner mr.ghosh, ld. counsel submitted that on two occasions promotion was wrongfully denied to the petitioner. the enquiring authority had acquitted the petitioner of the charge brought against him. the disciplinary authority by a cryptic order disagreed with the enquiring authority’s finding and imposed penalty on the petitioner. the appellate authority has substituted such penalty by a ‘caution’ and has thereby in effect exonerated the petitioner from the charge brought against him. hence, the petitioner should be granted the two promotions with retrospective effect. (12) ld. counsel referred to paragraph 4 (d) of the affidavit in opposition filed on behalf of the respondent nos.1 and 2 wherein the respondents have taken a stand that the petitioner’s representation demanding promotion could not be treated favourably since the petitioner had not been exonerated by the appellate authority. ld. counsel submits that this stand is unsustainable in law since ‘caution’ is not a punishment. in this connection, ld. counsel has referred to rule 27 of the coal india ltd.service related matter and conduct discipline and appeal rules 1978 and has submitted that ‘caution’ neither falls under the category of minor penalties nor major penalties as enumerated in the said rule. he submitted that since no penalty was imposed by the appellate authority, the petitioner must be taken to have been exonerated from the charge by the appellate authority. (13) ld. counsel appearing on behalf of the respondents submitted that it is incorrect to say that the appellate authority completely exonerated the petitioner from the charge brought against him. in its order dated 20th december, 2013 the appellate authority recorded that it was incumbent on the part of sr.sumit majumdar (writ petitioner) to be more cautious while dealing with such financial matters and doubt, if any, should have been got clarified. had sr.majumdar scrutinized the file more diligently, such procedural irregularity could have been avoided. ld. counsel then submitted that if promotion is to be at all granted to the petitioner, the same should be from the date of the appellate authority’s order. (14) i have considered the rival contentions of the parties. i am inclined to agree with the submission of the ld. counsel for the respondents to the effect that the appellate authority did not completely exonerate the petitioner from charge brought against him. the appellate authority clearly records that the financial irregularity could have been avoided at the petitioner upon more cautious and diligent. however, it is also true that the appellate authority recorded that there was no deliberate action with mala fide intention on the part of the writ petitioner. the writ petitioner should have been more careful in the discharge of his duties. (15) promotion is an incidence of service. it is one of the great expectations of an employee that he will be promoted in service in accordance with the relevant rules. even if one may not put it at the pedestal of a legal right, promotion in service is surely a legitimate expectation of an employee. such an expectation cannot be lightly interfered with and cannot be allowed to be defeated expecting on strong and legitimate grounds. in the instant case, the writ petitioner ought to have been more alert. however, the lack of diligence on his part in the instant case, in my opinion, cannot be equated with culpable negligence so as to defeat his legitimate expectation of promotion. he did not cause any loss to the employer by any conscious deliberate act lacking in bona fide. that is the reason why the appellate authority moderated the penalty from one of ‘reduction of pay by one stage for a period of one year without cumulative effect’ to one of ‘caution’. (16) ld. counsel for the writ petitioner submitted that ‘caution’ is not a penalty within the meaning of the service rules. rule 27 referred to above envisages a minor penalty called censure. the meaning of the word censure as per black’s law dictionary, 9th edition is to reprimand or to criticise harshly. i do not think that a ‘caution’ and ‘censure’ can be equated with one another. a caution is much softer than censure. i am inclined to agree with the submission of the ld. counsel for the petitioner that the appellate authority imposed no punishment on the writ petitioner. this would go to show that there was no serious dereliction of duty on the part of the writ petitioner as otherwise the appellate authority would not have done away with the penalty imposed on the writ petitioner by the disciplinary authority. (17) for the reasons aforestated this writ petition succeeds. the respondents are directed to grant promotion to the petitioner in terms of the office order dated 22nd december, 2008 along with consequential benefits and back wages but without any interest and also further promotion in terms of the office order dated 20th september, 2013 and 25th september, 2013 along with all consequential benefits and back wages but without interest. this order will be given effect to by the respondents within 8 weeks from date. (18) this writ petition is thus disposed of. (arijit banerjee, j.)
Judgment:

In The High Court At Calcutta Constitutional Writ Jurisdiction Original Side WP No.790 of 2014 Sumit Majumdar -vs.Coal India LTD.& ORS.Before: : The Hon’ble Justice Arijit Banerjee For the Petitioner : Mr.Partha Ghosh, Adv.For the Respondents : Mr.Susanta Pal, Adv.Mr.P.Basu, Adv.Me.

Sudhakar Misra, Adv.Heard on : 31/03/2015, 22/04/2015 CAV On : 29/04/2015 Judgment On : 13/05/2015 Arijit Banerjee, J.: (1) In this writ application the petitioner prays for a writ of mandamus, commanding the respondent authorities to grant promotion to the petitioner in terms of the office order dated 22nd September, 2008 issued by the General Manager (Personnel).Coal India LTD.along with all consequential benefits and full back wages with interest and further promotion in terms of the office order dated 20th September, 2013 and 25th September, 2013 issued by the Chief Manager (Personnel/EE) of Eastern Coalfields LTD.along with all consequential benefits and back wages with interest.

The facts of the case briefly stated are as follows:- (2) The petitioner is working as Manager (Finance) Kajora area, Eastern Coalfields LTD.(3) While the petitioner was posted as senior accounts officer in S.P Mines area, Chirta, Deoghar, Jharkhand, a charge-sheet was issued to him under cover of a memorandum dated 12th September, 2007 issued by the Chairman-cum-Managing Director of the Eastern Coalfields LTD.By the said memorandum the petitioner was informed that a domestic enquiry would be held against him for having committed alleged acts of irregularity in the discharge of his duty.

The petitioner was asked to submit his written statement of defence.

The enquiring authority by his report dated 21st April, 2008 exonerated the petitioner of the charges brought against him.

(4) The Chairman-cum-Managing Director of Eastern Coalfields LTD.acting as disciplinary authority, however, disagreed with the finding of the enquiring authority.

The disciplinary authority by his order dated 24th June, 2010 held that the charge against the petitioner was proved and imposed a penalty on the petitioner of reduction of pay by one stage for a period of one year without cumulative effect.

(5) The petitioner preferred a departmental appeal before the Chairman, Cold India Ltd.The appellate authority by its order dated 9th September, 2011 confirmed the penalty imposed on the petitioner by the disciplinary authority.

(6) The petitioner challenged the aforesaid punishment by filing a writ petition in this court being WP No.76 of 2012.

This Court by its order dated 25th June, 2013 set aside the order of the appellate authority primarily on the ground that the same was not supported with reasons.

The matter was remanded to the appellate authority for re-adjudication of the appeal after giving an opportunity of hearing of all necessary parties.

(7) Upon remand, the appeal against the order of the disciplinary authority was adjudicated afresh and by an order dated 19th December, 2013 the appellate authority moderated the penalty imposed by the disciplinary authority and allowed the appeal by issuing a ‘caution’ with an advice to the petitioner to be more careful in dealing with similar cases in future.

(8) In the meantime, a promotional order dated 22nd September, 2008 was issued by the Coal India LTD.promoting certain accounts officer including the petitioner, to the post of Deputy Financial Manager in E-4 grade.

However, the petitioner was denied such promotion by the Eastern Coalfields LTD.The representations of the petitioner in that regard were all in vain.

(9) A further promotional order was issued by the Coal India LTD.on 20th September, 2013 but the petitioner was excluded from the purview of such order.

(10) After the appellate authority moderated the penalty that had been imposed by the disciplinary authority on the petitioner from one of ‘reduction of pay by one stage for a period of one year without cumulative effect’ to ‘caution’ the petitioner made representations to the respondent authorities for granting him the promotion that he had been denied.

However, such representations were in vain.

Being aggrieved the petitioner is before this Court by way of the instant writ petition.

(11) Appearing on behalf of the writ petitioner Mr.Ghosh, Ld.

Counsel submitted that on two occasions promotion was wrongfully denied to the petitioner.

The enquiring authority had acquitted the petitioner of the charge brought against him.

The disciplinary authority by a cryptic order disagreed with the enquiring authority’s finding and imposed penalty on the petitioner.

The appellate authority has substituted such penalty by a ‘caution’ and has thereby in effect exonerated the petitioner from the charge brought against him.

Hence, the petitioner should be granted the two promotions with retrospective effect.

(12) Ld.

Counsel referred to paragraph 4 (d) of the affidavit in opposition filed on behalf of the respondent Nos.1 and 2 wherein the respondents have taken a stand that the petitioner’s representation demanding promotion could not be treated favourably since the petitioner had not been exonerated by the appellate authority.

Ld.

Counsel submits that this stand is unsustainable in law since ‘caution’ is not a punishment.

In this connection, Ld.

Counsel has referred to Rule 27 of the Coal India LTD.Service Related Matter and Conduct Discipline and Appeal Rules 1978 and has submitted that ‘caution’ neither falls under the category of minor penalties nor major penalties as enumerated in the said rule.

He submitted that since no penalty was imposed by the appellate authority, the petitioner must be taken to have been exonerated from the charge by the appellate authority.

(13) Ld.

Counsel appearing on behalf of the respondents submitted that it is incorrect to say that the appellate authority completely exonerated the petitioner from the charge brought against him.

In its order dated 20th December, 2013 the appellate authority recorded that it was incumbent on the part of Sr.Sumit Majumdar (writ petitioner) to be more cautious while dealing with such financial matters and doubt, if any, should have been got clarified.

Had Sr.Majumdar scrutinized the file more diligently, such procedural irregularity could have been avoided.

Ld.

Counsel then submitted that if promotion is to be at all granted to the petitioner, the same should be from the date of the appellate authority’s order.

(14) I have considered the rival contentions of the parties.

I am inclined to agree with the submission of the Ld.

Counsel for the respondents to the effect that the appellate authority did not completely exonerate the petitioner from charge brought against him.

The appellate authority clearly records that the financial irregularity could have been avoided at the petitioner upon more cautious and diligent.

However, it is also true that the appellate authority recorded that there was no deliberate action with mala fide intention on the part of the writ petitioner.

The writ petitioner should have been more careful in the discharge of his duties.

(15) Promotion is an incidence of service.

It is one of the great expectations of an employee that he will be promoted in service in accordance with the relevant rules.

Even if one may not put it at the pedestal of a legal right, promotion in service is surely a legitimate expectation of an employee.

Such an expectation cannot be lightly interfered with and cannot be allowed to be defeated expecting on strong and legitimate grounds.

In the instant case, the writ petitioner ought to have been more alert.

However, the lack of diligence on his part in the instant case, in my opinion, cannot be equated with culpable negligence so as to defeat his legitimate expectation of promotion.

He did not cause any loss to the employer by any conscious deliberate act lacking in bona fide.

That is the reason why the appellate authority moderated the penalty from one of ‘reduction of pay by one stage for a period of one year without cumulative effect’ to one of ‘caution’.

(16) Ld.

Counsel for the writ petitioner submitted that ‘caution’ is not a penalty within the meaning of the service rules.

Rule 27 referred to above envisages a minor penalty called censure.

The meaning of the word censure as per Black’s Law dictionary, 9th edition is to reprimand or to criticise harshly.

I do not think that a ‘caution’ and ‘censure’ can be equated with one another.

A caution is much softer than censure.

I am inclined to agree with the submission of the Ld.

Counsel for the petitioner that the appellate authority imposed no punishment on the writ petitioner.

This would go to show that there was no serious dereliction of duty on the part of the writ petitioner as otherwise the appellate authority would not have done away with the penalty imposed on the writ petitioner by the disciplinary authority.

(17) For the reasons aforestated this writ petition succeeds.

The respondents are directed to grant promotion to the petitioner in terms of the office order dated 22nd December, 2008 along with consequential benefits and back wages but without any interest and also further promotion in terms of the office order dated 20th September, 2013 and 25th September, 2013 along with all consequential benefits and back wages but without interest.

This order will be given effect to by the respondents within 8 weeks from date.

(18) This writ petition is thus disposed of.

(Arijit Banerjee, J.)