Case: Coal India Ltd.  Vs. Saroj Kumar Mishra

vigilance enquiry should affect the promotion, confirmation et. Of an employee of CIL and its subsidiaries has not been clearly defined in the above. Quoted office memorandum. Vigilance inquiries take considerable time to complete and in absence of a clear indication regarding the point at which such inquiries should and stand in the ay of an officers promotion, there is scope for confusion on this score. This matter has been engaging the attention of the management for quite some time. Taking into consideration the existing orders of the Government of India in this regard, the following decision has been taken."All orders for promotions will be issued only after vigilance clearance. However, vigilance clearance shall not be withheld for the mere fact that a P.E. or R.C. has been registered by the CBI against an officer or that complaints are being looked into a preliminary enquiry departmentally but no conclusion has been reacted about the prima facie guilt of the officer. Vigilance clearance shall be withheld only when :1) In the case of a Preliminary Enquiry, either by the CBI or departmental agencies, the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge-sheet may be issued on specific imputations for departmental action, and2) In case of a regular case, the competent authority has decided to accord sanction for prosecution of the officer in Court.Until the competent authority arrives at such a conclusion, the officer may be treated at par as per with orders in the matter of promotion, confirmation etc.These instructions, shall come into force with immediate effect." 14. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise. 15. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They therefore, are, required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. 16. We may also notice that a revised guideline was also issued on or about 14.5.2002, wherein it was stated; "The Vigilance clearance shall be withheld only on the ground (a) when officer is under suspension (b) when the officer, in respect of whom a charge sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending." 17. The said circular although is not ipso facto applicable in this case, clearly laws down the law otherwise prevailing. 18. Reliance placed by Mr. Sinha on Manoj Kumar Singh (supra) is wholly misplaced. Therein no law was laid down. It does not contain any ratio decidendi. The question as to whether in absence of any charge-sheet or at least in absence of any satisfaction having been arrived by the disciplinary authority that a prima facie case has been made out for proceeding against an employee, the Vigilance clearance can be given or not, did not fall for consideration at all therein. No issue in that behalf was framed; no argument was advanced; no reason has been assigned in support of the said order. This Court merely stated; "In the present case, the decision to take action against the appellant had been formed on 20.1.99. Therefore, the appellant could not have been granted vigilance clearance. In the circumstances, we see no reason to interfere with the order under challenge. The appeal is, accordingly, dismissed. There shall be no order as to costs." 19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equally mis-placed. Therein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule of seniority-cum-merit. Although, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equallyTherein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule ofAlthough, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when ais issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof.