RAM BINAY SHARMA Vs. CHAIRMAN, COAL INDIA LTD.

JUDGEMENT

(1.) HE petitioner has filed this writ petition with a prayer to quash the order dated 30th of March, 2007 issued by the Chief General Manager (Personnel) of the Coal India Ltd. cancelling his promotion to the post of Chief General Manager (Mining) in M -3 Grade, vide Annexure -3 and further to allow him to continue in the promotional post as before.

(2.) THE brief facts leading to this writ petition are as follows: The petitioner after being qualified as a Mining Engineer joined the Coal India Ltd. (CIL) as a Junior Executive Trainee. In course of his service, he was promoted to different posts and was ultimately promoted to the post of Chief Mining Engineer in M -2 Grade and was posted as General Manager, Lingaraj Area, Talcher, under Mahanadi Coalfields Ltd. (MCL), which is a subsidiary of CIL. While working as such, a Departmental Proceeding was drawn up against him for the alleged misconduct during his incumbency as Project Officer, Kedia Open Cast Project of Central Coal Fields Ltd., another subsidiary of CIL, for unauthorized occupation of Vocational Training Centre of Kedla Open Cast Project of CCL by one Rungta Transport Company. In that proceeding, the Chairman -cum -Managing Director of Central Coal Fields Ltd. passed an order dated 18.1.2007 imposing minor penalty of 'censure as at the relevant time pertaining to the charge the petitioner was working under the Central Coal Fields Limited, which is another subsidiary Company of CIL. It is alleged that the aforesaid order imposing minor penalty of 'censure was passed without giving any opportunity of hearing to the petitioner. Against the aforesaid penalty of 'censure, the petitioner preferred an appeal before the appellate authority and the same was pending disposal on the date of filing of the writ petition and during pendency of the appeal, the petitioner was considered for promotion to the post of Chief General Manager (Mining) in M -3 Grade and along with four others he was promoted to the said post of Chief General Manager (Mining) in M -3 Grade by order dated 6.3.2007 (Annexure -1) and his name was at Sl. No.3 of the promotion order. The aforesaid order clearly indicated that the promotion was subject to the result of certain writ applications pending before different High Courts including this Court. According to the petitioner, pursuant to the order of promotion dated 6.3.2007, he assumed the charge of Chief General Manager (Mining) in M -3 Grade with effect from the said date and the charge assumption report was duly countersigned by the Chairman -cum -Managing Director on 9.3.2007, vide Annexure -2. While continuing as such, the Chief General Manager (Personnel) of the CIL by order dated 30.3.2007 directed to treat the said order of promotion as cancelled on the ground that the petitioner had been imposed minor penalty of 'censure vide order dated 18.1.2007 passed by the Chairman -cum -Managing Director (CMD) of Central Coalfields Ltd. (CCL). According to the petitioner, after perusal of all records including the order of minor punishment of 'censure, the authorities decided that the petitioner was eligible for promotion to the next higher post and recommended for promotion and the petitioner in fact on such recommendation was promoted to the post of Chief General Manager (Mining) in M -3 Grade. The same authorities therefore cannot fall back and cancel the order of promotion on 30th March, 2007 solely on the ground of minor punishment of 'censure inflicted on the petitioner.

(3.) THE undisputed fact is that the petitioner was censured in a Disciplinary Proceeding and the penalty imposed is a minor one. Further, prior to consideration of the case of the petitioner to the next higher grade, i.e., Grade 3, by the DPC, the minor penalty had already been imposed but the same was not brought to the notice of the DPC. Admittedly, neither any notice to show cause was issued nor any enquiry was conducted giving adequate opportunity to the petitioner to explain and to be heard, before issuing the impugned order of cancellation of his promotion, which visits the petitioner with civil consequence as the order amounts to reversion of the petitioner to a lower post/grade, at least a notice to the employee was required to be given, for compliance of the rules of natural justice. Mr. Roy, learned counsel for the petitioner, in this regard referred to a decision of the apex Court in the case of Basudeo Tiwary v. Sido Kanhu University and others, 1998 (5) Scale, and submitted that the order of promotion has been cancelled unilaterally affecting the right of the employee which is not just, fair and reasonable. According to the learned counsel for the petitioner, before passing the order, cancelling the promotion of the petitioner, the requirement of an opportunity of hearing was to be adhered to. He further relied upon the decision of the apex Court in the case of Shekhar Ghosh v. Union of India and another, 2007 (1) Supreme 860, wherein it was held that the principles of natural justice are required to be complied with even when a mistake is sought to be rectified, if by reason thereof, an employee has to suffer civil consequences. The sum and substance of the argument of Mr. Roy is that once an order of promotion has been passed, the same cannot be cancelled without giving the petitioner an opportunity of hearing. On the contrary, Mr. Sanjit Mohanty, learned counsel for the O.Ps. relied upon the judgment of the apex Court reported in AIR 1999 SC 2583 (M.C. Mehta v. Union of India and others) which after referring to S.L. Kapoor v. Jagmohan (AIR 1981 SC 136) held that if on the admitted or indisputable factual position, only one conclusion is possible and permissible, the Court need not issue a writ merely because there is violation of principles of natural justice. He further submitted that the aforesaid principle has been followed in cases of Aligarh Muslim University v. Mansoor Ali Khan (AIR 2000 SC 2783); Canara Bank v. V.K. Awasthy (AIR 2005 SC 2090) and Mohd. Sartaj v. State of U.P., ((2006) 2 SCC 315). We do not dispute the position of law as enunciated by the Supreme Court in the decisions cited by the O.Ps. But once the petitioner was selected and promoted by the DPC, may it be by mistake, the order cancelling the promotion is bound to affect the rights of the petitioner. The petitioner had already joined the promotional post by virtue of Annexure -2, which was countersigned by the Chairman -cum -Managing Director, Mahanadi Coalfields Ltd. The rule of natural justice demands that the petitioner should be given a notice before cancelling the order of promotion. Referring to the decision of the Constitution Bench rendered in the case of Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101, the apex Court in the case of Basudeo Tiwary (supra) held as follows :