Case: Coal India Ltd.  Vs. Saroj Kumar Mishra

2. These two appeals involving similar questions of law and facts were taken up for hearing together and are being disposed of by this common judgment.3. Respondents herein were employees of Mahanadi Coalfields Ltd., a Government Company within the meaning of Section 617 of the Companies Act. Coal India Limited admittedly is the holding company of Mahanadi Coalfields Ltd. Appellant No.1 framed rules laying down terms and conditions of service of its Executive Officers. The Executive Cadre of the Officers of Appellant No.1 is divided in various grades namely Gr. E/1 to Gr.E/8. Indisputably, promotion from A/3 to A/4 grades is governed by the rule ofFor the purpose of considering the cases for promotion of the eligible officers from Grade E/3 to E/4, a departmental promotion committee held its meeting in1999.4. Respondent were, however, not promoted inter alia on the premise that the General Manager (Vigilance) of the Mahanadi Coalfields Ltd. intimated to the concerned authority that vigilance cases were pending against them. Orders of promotion were issued in favour of the officers who were admittedly junior to them on 31.8.1999. When despite representation, they were not promoted on the ground of pendency of vigilance cases, they filed writ petitions before the Orissa High Court prayingfor notional promotion with effect from the date their juniors were promoted.5. During pendency of the Writ Petition namely in June, 2002, charge sheets were issued and upon a disciplinary proceeding having been initiated, a penalty of reduction of pay by one stage for a period of one year without cumulative effect was imposed upon the respondents in July, 2003.6. Before the Orissa High Court as also before this Court, reliance has been placed by the appellants on office memorandums dated 19/27th June, 1979. Upon taking into consideration the said office memorandum as also subsequent memorandums and in particular the one dated 8.1.1981, the High Court(Smt.) Sudha Salhan has to be followed and since the concerned employees in the cases of Delhi DevelopmentH.C. Khurana (AIR 1993 S.C. 1488), Union ofSharma (AIR 1993 S.C. 2337) stand on a different footing than the present petitioner, the ratio decided in those cases cannot be followed in the case of the present petitioner. In the case of R.S. Sharma the order of the Tribunal directing to open the sealed cover and giving effect to the recommendation made by the DPC on the ground ofof charge memo, was set aside keeping in view the Rules/Circulars/O.M. in force more particularlyof the O.M. wherein it is provided that during the pendency or "investigation on serious allegation of corruption, bribery or similar grave misconduct is in progress either by the CBI or any agency, departmental or otherwise", sealed cover procedure can be resorted to till the proceeding is over in all respect. But in the instant case on the basis of O.M./Circular/Rules followed by the MCL/Coal India, the sealed cover was opened and the petitioner was given promotion to next higher gradesince the so called investigation was not completed within two years from the date the immediate junior to the petitioner was promoted. This particular office memorandum has been issued may be with the intention to check prolonged enquiry covering a period of more than two years in respect of certain allegations against in employee, so that the concerned employee shall not be harassed or debarred from getting benefit on the recommendation of DPC for an indefinite/prolonged period on the ground of pendency of such enquiry, without initiation of a departmental proceeding after service of charge memo. However once the sealed cover is opened and the petitioner is allowed the benefit of the recommendation of DPC by giving him promotion to the next higher grade, he shall be entitled for all consequential benefits from the date his immediate junior got the same. In this case the petitioner had never been suspended during the period of thepreliminary enquiry nor during the period of departmental enquiry. As such, he shall be entitled for promotion notionally with effect from the date his immediate junior got the same along with all service and financial benefit.On the said findings, the writ petitions were allowed.

Reasoning: 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.