Full Judgment Text
WP 5349/12 1 Judgment
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
NAGPUR BENCH, NAGPUR.
WRIT PETITION NO.5349/2012
Bingumalla Venkata Ramanaiah
s/o Bingumalla Veeraiah,
aged 47 years, Occupation service,
resident of C13, Gauri Officers
Colony, Post Sasti, Tahsil Rajura,
District Chandrapur – 442 706. PETITIONER
.....VERSUS.....
1. Coal India Limited,
having its registered Office at 10,
Netaji Subhash Road, Kolkata1,
through its Chairman.
2. General Manager (Personal),
Coal India Limited, having its
registered Office at 10, Netaji
Subhash Road, Kolkata1.
3. Western Coalfields Limited,
having its registered office at
Civil Lines, Nagpur,
through its Chairman. RESPONDENTS
Shri Rohit Deo, counsel for the petitioner.
Shri S.C. Mehadia, counsel for the respondents.
AND
CORAM :ANOOP V. MOHTA
Z.A. HAQ, JJ.
TH
DATE : 4 JULY , 2013 .
ORAL JUDGMENT (PER: ANOOP V. MOHTA, J.)
RULE . Rule made returnable forthwith. Petition is heard
finally with the consent of the learned counsel for parties.
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WP 5349/12 2 Judgment
2. The petitioner has challenged the action of respondents of not
issuing the relieving order though the petitioner is in the list of employees
who are promoted.
3. The right of promotion, as settled, always has a foundation of
service terms and conditions and the material available with respondents to
consider the case of employees especially when the criteria is of meritcum
seniority. The concept and purpose of assessing the material with regard to
the merit of the employees is within the purview and the power of the
employer. It does not mean that the employees have no say in a case where
inspite of his merit, the employer fails to consider the same and/or denies
the right to be considered for promotion.
4. The learned advocates appearing for the parties have relied on
the Office Memorandums dated 12.09.2002 issued by Coal India Limited and
the dated 28.03.2002 issued by Government of India, Central Vigilance
Commission, New Delhi. The relevant extract of the aforesaid Office
Memorandums is as under:
I) Government of India, Central Vigilance Commission
th
Letter No.3S/DSP/1, dated 28 of March, 2002 .
2. Para 12.1 to 12.14 of Chapter V and Para 6.1 to 6.2
of Chapter III of the Vigilance Manual VolI deals exhaustively
with the information required to be placed before the
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WP 5349/12 3 Judgment
Departmental Promotion Committee to enable the DPC to follow
the sealed cover procedure in specified cases. Cases of officials
falling in the specified categories alongwith those of officers who
are undergoing a penalty when the clearance is sought, are the
ones which require vigilance clearance to be withheld.
3. It may be observed that the circumstances mentioned
in these paras are :
(a) Govt. servants under suspension.
(b) Govt. servants in respect of whom disciplinary
proceedings are pending or a decision has been taken to initiate
disciplinary proceedings.
(c) Govt. servants in respect of whom prosecution for a
criminal charge is pending or sanction for prosecution has been
issued or a decision has been taken to accord sanction for
prosecution.
(d) Govt. servants against whom an investigation,
serious allegation of corruption, bribery or similar grave
misconduct is in progress either by the CBI or by any other
agency, departments or otherwise.
4. …........
5. …........
6. …........
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WP 5349/12 4 Judgment
II) Coal India Limited Office Memorandum
th
Ref.No.CIL/C5A(vi)/CCC/50729/137, dated 12 of September,
2002.
Consequent upon withdrawal of CIL's O.M.
No.CIL/C5A(vi)/CCC/50729/33 dated 14.5.2002 vide CIL's
O.M. No.CIL/C5A(vi)/CCC/50729/118 dated 23.3.2002 and in
terms of the decisions of the Hon'ble Supreme Court of India in
the matter of Union of India Vs. K.V. Jankiaman (AIR 1991 SC
th
2010) which is conformity with OM dated 14 September, 1992
issued by the Ministry of Personnel, Public Grievances and
Pensions, Department of Personnel and Training, Govt. of India,
th
as communicated by OSD, CC, Govt of India vide letter dated 14
June 2002, the Vigilance Clearance will be withhold in case of
promotion under the following circumstances:
a) When an officer is under suspension.
b) When an officer in respect of whom a
charge sheet has been issued and disciplinary proceedings are
pending; and
c) In case of a regular case, the competent
authority has decided to accord sanction for prosecution of the
Office in Court.
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WP 5349/12 5 Judgment
5. We have to take into consideration, apart from the judgment so
cited, the circumstances enumerated in both the circulars for withholding the
case of promotion. Even otherwise, facts of the case always goes to the root
of the matter.
6. The learned advocate appearing for the petitioner has cited
1
judgments in cases of Coal India Limited Versus Saroj Kumar Mishra ,
2 3
Union of India Versus Sangram K. Nayak and Union of India & others
Versus K.V. Janakiraman & others to support his contention that as the
chargesheet is received by the petitioner after crystallization of his right of
promotion, that should not be the hurdle for respondents to relieve the
petitioner for joining on the promotional post. The submission is made by
the learned advocate appearing for the petitioner in view of the above
position that respondents are wrongly stopping his promotion and/or
relieving order.
7. We are inclined to observe that the facts and circumstances are
always necessary foundation for consideration of the case of the employee,
who is insisting for promotion in view of his alleged entitlement. But,
admitted position on record shows that though the petitioner’s name was
included in the list of officers who had been granted promotion on
1 ) 2008(1) All MR 458;
2) 2007 (4) Supreme 246;
3) 1991(4) SCC 109
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WP 5349/12 6 Judgment
11.11.2011, he was served with chargesheet on 07.12.2011 on the basis of
an Office Memorandum issued by Central Vigilance Commission, New Delhi
dated 09.11.2011 advising the initiation of major penalty proceedings
against the petitioner. It is not in dispute that the memorandum issued by
Central Vigilance Commission is of dated 09.11.2011 and the name of the
petitioner was included in the list of promoted employees on 11.11.2011.
The late receipt of chargesheet on 07.12.2011, in our view, cannot be
treated as an exempted situation as provided in both the circulars relied
upon by the parties. We are inclined to observe in the present case that since
the memorandum was issued by Central Vigilance Commission, New Delhi
on 09.11.2011, late receipt of the same could not have been overlooked by
the respondents at this stage, though the petitioner is in the list of promoted
officers. The action of withholding promotion/relieving order just cannot be
stated as impermissible and/or bad in law.
8. Though the judgments of the Supreme Court, cited by the
learned advocate appearing for the petitioner, which have interpreted the
provisions of the circulars, yet we are not inclined to accept the submission
of the advocate appearing for the petitioner that those circulars are not
applicable to the facts and circumstances of the present case. The judgments
cited supra in no way declare that merely because an employee is in the list
of promoted employees, he is entitled to join the promotional post without
relieving order and/or order directing him to join the promoted post.
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WP 5349/12 7 Judgment
9. We are inclined to observe that as the case is made out and even
though employee is in the list of promotion, his name can be withheld and
an appropriate action can be taken. There is no total bar. Respondents have
withhold the promotion/relieving order in view of the memorandum issued
by Central Vigilance Commission and the related charges, which need to be
adjudicated by giving an opportunity of hearing to the petitioner. In this
background, if respondents take action of withholding the promotion, it is
difficult for the Court to hold that the action is bad in law, impermissible
and/or without jurisdiction. We are inclined to hold that there is no
illegality in the impugned action of respondentsemployer.
10. It is made clear that we are not deciding any right and/or
entitlement of the petitioner based upon the list of promoted employees. All
points raised in the petition are kept open.
11. The petition is dismissed. No costs.
( Z.A. HAQ, J. ) ( ANOOP V. MOHTA, J. )
APTE
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