SHAMBHU SHARAN LALL Vs. CHAIRMAN CUM MANAGING DIRECTOR

JUDGEMENT

(1.) In the instant writ application, the petitioner has sought for promotion from E3 to E4, E5 and M1 Grade, with effect from the year 1988, 1991 and 1994 respectively or from the date persons junior to the petitioner like Dr. Swapan Chaterjee etc. has been granted promotion and to give the monetary benefits and for fixation of the reitral benefits on the revised promotional scale along with arrears in terms of the judgment passed by this Hon'ble Court in L.P.A. No.404/2010 and Civil Review No.14/2011 arising out of W.P.(S) No.5779/2009. The petitioner has further prayed for payment of full salary after deducting the subsistence allowance from the date of suspension i.e. 28.02.1996 till date of revocation of suspension i.e. 01.12.1992 with interest and further prayer has been made for interest on Gratuity for the period from 01.09.2009 to 27.05.2011 in terms of Section 7(3) of the Payment of Gratuity Act, 1872 since the petitioner retired on 31.07.2009 but his gratuity was released on 27.05.2011.

(2.) The facts, in brief, is that the petitioner joined his services at Bharat Cocking Coal Limited (hereinafter referred to as "BCCL") in the year 1980 as a Medical Officer and subsequently he was promoted as Senior Medical Officer in E3 Grade in the year 1985. While continuing as such, an F.I.R was lodged on 12.02.1986 and the petitioner was arrested. Upon his arrest, the petitioner was suspended with effect from 24.02.1986 and the said suspension was revoked on 01.12.1992. The petitioner was convicted in Dhanbad R.C Case No.4(A)/86 (D) vide judgment and order dated 26.09.2006 passed by Special Judge, C.B.I, Dhanbad and thereafter the petitioner was removed from service on 02.07.2007. The order of conviction was set aside in Cr. Appeal No.1443 of 2006 vide judgment dated 07.11.2007. After acquittal in Cr. Appeal No.1443 of 2006 the petitioner submitted representation before the disciplinary authority through proper channel on 06.12.2007 for his reinstatement with effect from the date of removal i.e. 02.07.2007. On the basis of decision taken by the appellate authority, the disciplinary authority-respondent no.2 vide order dated 09.07.2009 communicated to the petitioner the decision of the Board of Director regarding reinstatement with effect from 07.11.2007. It is also mentioned in the said order that petitioner would not be entitled to any pecuniary benefits for the intervening period i.e from the date of removal from service till the date of joining after reinstatement, as evident from Annexure-1 to the writ petition. Being aggrieved by the condition in the order of reinstatement, the petitioner knocked the door of the Hon'ble Court in W.P(S) No.5779 of 2009 and this Hon'ble Court vide order dated 03.08.2010 allowed the writ petition and set aside the order dated 09.07.2009 holding therein that the petitioner shall be entitled to be reinstated in service from the date of removal i.e. 02.07.2007 with all pecuniary benefits and all consequential benefits. Against the order dated 03.08.2010 passed in W.P.(S) No. 5779 of 2009, L.P.A No.404 of 2010 was preferred by the respondent and the Hon'ble Court has been pleased to grant only 50% of the pecuniary benefits from the date of acquittal instead of all pecuniary benefits, but for all other purposes notional continuity was granted. Subsequently, petitioner preferred review petition being Civil Review No.14 of 2011 against the L.P.A and the same was allowed vide order dated 11.03.2011 and the word acquittal has been replaced with removal. The petitioner retired from service on 31.07.2009 as Senior Medical Officer in E3 Grade. Since the order of the Hon'ble Court was not complied, Cont. Case (Civil) No.744 of 2010 was filed by the petitioner and during pendency gratuity was paid on 27.05.2011 without statutory interest and the same was supposed to be paid with effect from 01.09.2009 as per Section 7(3) of the Payment of Gratuity Act, 1872. Finally, the contempt application was dropped by a detailed order dated 06.12.2013 giving liberty to the petitioner to raise his grievance by filing appropriate writ application as evident from Annexure-5 to the writ petition. It has been averred in the writ application that the petitioner's position in the seniority list of E2 Grade was at Serial No.46 whereas the Serial no.47, 48 and 49 have been given promotion up to M1 Grade but the case of the petitioner has not been considered for promotion. The guidelines/rules for promotion in the Medical discipline published and followed by CIL has been brought on record vide Annexure-6 to the writ application. According to the petitioner as per the requirements of qualification given in the rules/guidelines of CIL, the petitioner ought to have been considered for promotion on different grades from E3 to E4, E4 to E5 and thereafter E5 to E6 with effect from different dates, at least from the date juniors to the petitioner have been granted such promotion. Being aggrieved by in action on the part of the respondents, the petitioner has been constrained to file the writ application under Article 226 of the Constitution of India for redressal of his grievance.

(3.) Learned counsel for the petitioner has strenuously urged that on the basis of qualification and experience, the petitioner ought to have been considered for promotion in view of the fact that juniors have been given promotion. Learned counsel for the petitioner further submits that in spite of clean acquittal in the criminal case and continuity of services, it does not lie in the mouth of the respondents not to grant promotion to the petitioner from the date juniors were given promotion. Apart from that, learned counsel for the petitioner submits that the salary for the period of suspension i.e. 24.02.1986 to 01.12.1992 minus subsistence allowance is payable and further petitioner is entitled to gratuity as per Section 7(3) of the Payment of Gratuity Act and the petitioner is also entitled to be considered for promotion to the different dates, juniors were given promotion.