Delhi High Court
Ravindra Kumar Sood vs Ntpc & Ors on 14 July, 2011
Author: Suresh Kait
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment reserved on: 29th April,2011
Judgment delivered on: 14th July,2011
+ W.P.(C) No.4566/1998
RAVINDRA KUMAR SOOD ..... Petitioner
Through: Ms. Tinny Kapoor for
Ms. Richa Kapoor, Advocate.
Versus
NTPC & ORS ...... Respondents
Through:Mr.S.K. Taneja, Sr.Advocate
With Mr. Rajesh Gupta and Anant Kumar
Sinha, Advs.
+ W.P.(C) No.5973/1998
RAVINDRA KUMAR SOOD ..... Petitioner
Through: Ms. Tinny Kapoor for
Ms. Richa Kapoor, Advocate.
Versus
NTPC & ORS ...... Respondents
Through:Mr.S.K. Taneja, Sr.Advocate
With Mr. Rajesh Gupta and Anant Kumar
Sinha, Advs.
Page 1 of 79
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
1. Whether the Reporters of local papers may be allowed
to see the judgment? YES
2. To be referred to Reporter or not? YES
3. Whether the judgment should be reported
in the Digest? YES
SURESH KAIT, J.
1. Vide instant writ petition the Petitioner has sought
relief as under:-
(a)"Directing the Respondent to grant promotion to the
Petitioner as under:-
Controller Grade II 1.1.87
Controller Grade I 1.1.90
A.E. 1.4.93
Sr.A.E. 1.4.96
Engineer 1.4.97
And release all financial and other consequential benefits
w.e.f. due dates and also fix the seniority, increments arrears etc.
etc. for which the Petitioner is entitled from retrospective effect."
2. The Petitioner joined National Thermal Power
Corporation as diploma training on 13.12.82. Thereafter, he
was appointed as Junior Controller w.e.f. 13.12.83.
3. Case of the Petitioner here is that on 07.11.1986 a
fete was organized by the wives of the officers of Korba Super
Thermal Power. In the said fete several gambling games were
arranged as an entertainment. At that point of time the
Petitioner being President of the association boycotted the fete
as a mark of discontent against gambling and their
extravaganza.
5. Vide order dt. 13.11.1986 the Petitioner was served
with a charge-sheet by the Management at Korba, alleging
that Petitioner was shouting slogans at the entrance gate of
society where the fete was organized.
6. The Petitioner submitted his reply to the aforesaid
memo/charge-sheet dt. 13.11.1986. The reply was considered,
however, the Management was not satisfied with the reply,
consequently, an inquiry officer was appointed to hold an
inquiry. The Petitioner was informed by the Inquiry Officer to
attend the proceedings on 02.06.1987. Since the Petitioner
was sick on 02.06.1987 he submitted an application along with
medical certificate and requested to fix some other date for
conducting the inquiry. Instead of considering the request of
the Petitioner, the whole inquiry was conducted in one day and
all the prosecution witnesses were examined on that very day.
Though, subsequently Petitioner made a request and preferred
that at least cross-examination of the prosecution witnesses
should be allowed to him. But, the said request was rejected
by the Respondent.
7. Vide order dt. 12/16.12.1987 the Petitioner was
awarded punishment of "withholding one increment with
cumulative effect." As submitted by the Petitioner the
aforesaid punishment was imposed deliberately to withhold
the promotion of the Petitioner from the date i.e. 01.01.1987,
when the Petitioner was entitled to be promoted as Controller
Grade II.
8. On 13.01.1988, the Petitioner filed a statutory
appeal against the order of Disciplinary Authority. During the
pendency of the aforesaid appeal an agreement was signed
between the Petitioner and the Respondent on 16.01.1989
wherein certain point of understanding were mutually agreed
between Unions and Management.
9. In spite of decision taken in the said meeting which
was held on 16.01.1989, neither the case against the
Petitioner was closed nor was the Petitioner promoted as
Controller Grade II w.e.f. 01.01.87.
10. Being aggrieved the Petitioner submitted his
representations on various dates i.e. 03.07.1990, 29.06.1990,
01.11.1991, 01.09.1992, 14.11.1992, 20.04.1993, 22.04.1993,
28.04.1993, to the Higher Authorities but none of them
responded. However, the Petitioner was informed vide letter
dt. 18.02.1992, that this case has been referred to NCR-HQ for
appropriate action. At last, the Petitioner approached to High
Court of Punjab and Haryana at Chandigarh by filing CWP
No.8930/1993 wherein vide order dt. 27.07.1993 High Court of
Punjab and Haryana was pleased to direct to dispose of the
appeal dt. 13.01.1988 within three months and further
directed that if appeal succeeds all consequential benefits will
be given to the Petitioner within reasonable time. Consequent
upon the order of High Court of Punjab & Haryana, the
Appellate Authority had disposed of appeal modifying the
earlier punishment of "withholding one increment with
cumulative effect" to "without cumulative effect" w.e.f.
01.01.1988.
11. Being aggrieved by the order of Appellate Authority,
the Petitioner filed a review appeal on 07.03.1994 under Rule
33 NTPC CDA Rule 1977, for seeking review of order of
Appellate Authority. During the pendency of the above said
review appeal, the Petitioner was debarred once again for
consideration of Asstt. Engineer in DPC-94.
12. The Review Authority had also kept pending review
appeal for about two years against the Rule 23 of the NTPC-
CDA Rule which provides for disposal of a review appeal within
six months. Due to the said delay, the Petitioner was again
debarred in DPC-95.
13. Having no other option, the Petitioner was
constrained to file another writ petition before this Court
bearing CWP No. 1422/1995 for grant of promotion with all
consequential benefits w.e.f. due date and also sought
direction against the Respondent to dispose of the review
appeal dt. 07.03.1994 preferred by the Petitioner. Vide order
dt. 21.03.1996, this Court had disposed of the said writ
petition while observing as under:-
"Learned counsel for the Respondents states
that he has instructions to say that the reviewing
authority has considered the Petitioner‟s case and
quashed orders annexures II and IIIA dt. 12/16th
December, 1987 and 1st January, 1994 respectively
and has directed re-open the enquiry proceedings
held under Rule 25 of the NTPC CDA Rules, from the
stage of 2nd June, 1987, namely, of giving the
Petitioner due opportunity to cross-examine all the
management witnesses and to decide the
departmental proceedings in accordance with the
law after supplying copy of the report of the enquiry
to the Petitioner. It is also stated that Shri.
S.S.Mediratta, Senior Manager (OS) of N.C.R.
Headquarter has been nominated to conduct the
enquiry from the stage of aforementioned.
Learned counsel for the Respondent states
that subject to the Petitioner cooperating
Respondents will ensure to have the departmental
proceedings completed within a period of six
months.
Learned counsel for the Petitioner states that
in view of the above he has instructions to withdraw
the petition with liberty reserved to the Petitioner to
approach the court again in case necessity thereon
would arise and in case on culmination of the
departmental proceedings his claim for promotion
from the due date is not favourably considered. It
is also stated that the question as regards
Petitioner‟s claim for promotion from the due date
and during the pendency of the departmental
proceedings be left open with liberty to reserved to
the Petitioner to approach the court in case
necessity thereof would arise in future.
Leave and liberty granted. The petition is
disposed of as withdrawn."
14. After reopening of enquiry, the Respondents even
failed to conduct the enquiry within six months, and thus as
alleged by the Petitioner, again depriving the Petitioner of his
legitimate right of proper consideration of his case in DPC
1997 also.
15. Vide order dt. 09.12.1997 the Disciplinary Authority
had issued an order "Exonerate" the Petitioner from charges.
Accordingly, the Petitioner again submitted his representation
for promotion w.e.f. 01.01.87, thereafter, continued to
represent but the Respondent kept on pending.
16. As claimed by the Petitioner, he is entitled for his
promotion and subsequent promotions along with other
consequential benefits as under:-
"Post Promotion as Promotion given Promotion
From to be released
w.e.f.
______ ___________ _____________ ________________
Jr.Controller Controller
Grade II 1.1.90 1.1.87
Controller Supervisor
Grade II Grade I 1.4.93 1.1.90
Supervisor Asstt. Engineer
Grade I Grade I 1.4.93 1.4.93
Asstt. Engr. Sr.Asstt. Engr.
(Ern.) (Elect. Ern.) 1.4.96
Sr.Asstt. Engineer 1.4.97
Engineer
17. During the pendency of the aforesaid
representation, vide order dt. 29.07.1998, the Petitioner was
promoted as Sr. Supervisor (Materials). As alleged by the
Petitioner, it was surprise for him and the Respondent ignoring
his promotion from the due dates as per the channel of
promotion applicable to Petitioner. Petitioner being Diploma in
Engineering (Electrical) and therefore as per his channel of
promotion he was to be promoted to Asstt. Engineer but due to
the unlawful and mala fide acts the Respondent failed to
consider Petitioner in interview held in DPC-93.
18. During the pendency of the instant writ petition the
Respondent issued show cause notice to the Petitioner saying,
why the punishment of censure is not to be imposed upon the
Petitioner. The same was challenged by filing CM No.11125/98
and the same was disposed of vide order dt. 18.11.1998 as
under:-
"18.11.98
Present: Ms.Richa Kapoor for the Petitioner
Mr.S.K.Taneja for the Respondents.
CM No. 11125/98 in CW No. 4566/98
The Petitioner has filed the above petition
claiming promotion during the pendency of the writ
petition. According to the Petitioner, a show cause
notice has been issued by the Reviewing Authority.
The Petitioner has filed a petition for stay of the
show cause notice issued by the Reviewing
Authority. The petition for stay of show cause
notice is beyond the scope of the writ petition.
Reserving the rights of the Petitioner agitating the
same in a separate application, this application is
dismissed."
Accordingly, the Petitioner filed another writ
petition No.5973/98 which is pending for adjudication.
19. During arguments, as was pointed out that the
reply to the petition No.4566/98 and other pleadings are
complete only in the subsequent writ petition No.5973/98.
Therefore, for the purpose of disposal, it is decided to pass a
common order in both the writ petitions.
20. The Civil Writ Petition No.5973/1988 is a verbatim
of CWP No. 4566/98, except the Petitioner has sought direction
to quash the show cause notice dt. 03.11.1988.
21. It is pertinent to mention here that out of 54 paras
of the writ petition; upto para 43 it is a repetition of petition
No.4566/1998 only. Further pleadings start from para 51
onwards. The Petitioner has submitted that the advance copy
of CWP 4566/98 was served to the Respondent and vide order
dt. 10.09.1998, Rule was issued. The Petitioner filed PF on
10.09.1998 itself and notice of Rule was dispatched from the
Registry to Respondent No.1 to Respondent No.3 for
13.10.1998.
22. As alleged by the Petitioner, the said notices have
been received by the Respondents and same had been
entered in their dak receiving record register at its corporate
office at Core 7 Scope Complex Lodhi Road, New Delhi at
Sl.No.1 on 22.10.1998. The notice received by R-1 to R-3 has
been signed by Sh. B.K.Yadav and employee of law
department of the Respondent in dispatch register. Knowing
fully, the said writ petition will come for hearing on
30.10.1998, the Respondent issued show cause notice dt.
03.11.1998, wherein Reviewing Authority, Executive Director
NCR who is Respondent No.2 in the writ petition No.4566/98,
illegally, unauthorized to harass the Petitioner have called
upon to show cause as to why the penalty of „censure‟ should
not be imposed upon the Petitioner. The show cause notice dt.
03.11.1998 is reproduced as under:-
"Dt.: 3rd Nov.98
Notice
Sh.R.K.Sood
Supervisor GR-I (Matis.)
EMP. No.21361
BTPS/NTPC
New Delhi
Through:-GM BTPS
Q1 Whereas the Disciplinary Authority vide his
order No.BTPS/C&M/97-90/1 dt. 09.12.1997 had
exonerated you from the charges leveled against
you vide charge sheet No.
KS:PERS:ESTT:PF:21361:2027 dt. 12/13.11.1986
Q2 AND WHEREAS I have called for the entire
record of the case in the capacity of Reviewing
Authority, exercising my powers under Rule 33 of
NTPC Conduct, Discipline and Appeal Rules, 1977;
Q3 AND WHEREAS after going through the
records relating to the case including the
proceedings and the report of the Enquiry Officer, I
have observed that the Disciplinary Authority while
passing the order has overlooked the fact that there
is sufficient material on the basis of which the
Enquiry Officer has given his findings and that 3 of
the Articles of charges (Articles 1,3, & 6) are proved
substantially, i.e. Misconduct under Rule 7, Rule 5
(5), 5 (12), 5 (20) and 5 (21) of the NTPC Conduct,
Discipline & Appeal Rules accordingly stand proved.
Q4 AND WHEREAS the charges which have been
proved are of very serious nature involving
disturbance and disruption of an official function,
disorderly and indecent behavior within the
premises of the Company, acts subversive of
discipline and abetment thereof, the Disciplinary
Authority seems to have failed to appreciate the
gravity of these charges.
Q5. AND WHEREAS considering all these aspects
and the material available on record and after
proper application of mind, I am of the view that
this is not a fit case for exoneration but warrants
punishment.
Q6. Through the charges proved are of a serious
nature, taking a lenient view this time, I as
Reviewing Authority, propose to impose the penalty
of "CENSURE" in terms of Rule 23 (a) of NTPC
Conduct, Discipline and Appeal Rules and issue this
notice to you to show cause within 15 days from the
date of receipt of this notice as to why the penalty
of "CENSURE" should not be imposed upon you. A
copy of the report of the Enquiry Officer
Sh.S.S.Mediratta (9 pages) is enclosed.
Q7. Please note that in case I do not receive any
reply of this show cause notice within stipulated
period of time as mentioned hereinabove, I shall
presume that you have nothing to say and shall
pass necessary orders accordingly.
Q8. This notice is being issued in duplicate.
Please acknowledge receipt on the duplicate copy.
(J.N.SINHA)
REVIEWING AUTHORITY
EXECUTIVE DIRECTOR (NCR)"
23. The Respondent in their reply while taking
preliminary objections stated that there was no violation by
the NTPC Conduct, Discipline and Appeal Rules, 1977 (as
amended) which were applicable and governed the service
condition of Petitioner with the Respondent No.1 Corporation.
It is further submitted the Respondent No.2 Executive Director,
is the Reviewing Authority in the matter of disciplinary cases
(minor and major penalties) and under Rule 33 provided that
the Reviewing Authority may call for the record of the case
within six month of the date of the final order and after
Reviewing the case passed such order thereon as may deem
fit. The Rule 33 further provides that if the Reviewing
Authority proposes to impose enhanced penalty and an
enquiry has already been held in accordance with the
provision of Rule 25, the Reviewing Authority shall give show
cause notice to the employee and Reviewing Authority shall
pass the final order after taking into account the
representation. In the instant case the Reviewing Authority
had exercised its jurisdiction under Rule 33 of NTPC Conduct,
Discipline & Appeal Rules 1977. The Reviewing Authority
called the record of the case on 19.05.1998 i.e. within period
of six months and after examining the enquiry report and the
entire record of the proceedings, the Reviewing Authority had
issued show cause notice dt. 03.11.1998 under Rule 33 of
NTPC CDA Rule, 1977.
24. In reply to para 3 to 34 of the writ petition the
enquiry proceedings were ordered to be taken on the basis of
the charge sheet dt. 30.11.1986. Therefore, the Petitioner was
not entitled to be considered for promotion in view of the
charge-sheet issued against him. In response to para 36 of the
writ petition, Respondents submitted that the enquiry was
completed within period of six months. They denied that the
Reviewing Authority kept the decision pending for a year and
nine months to victimize further and intentionally violated the
order of this Court passed on 21.03.1996. It is submitted, the
Reviewing Authority called for record on 19.05.1998, i.e. within
a period of six months and after examining the enquiry report
and record of entire proceedings, the Reviewing Authority,
within its authority and power, issued the show cause notice
dt. 03.11.1998. In reply to para 38 they denied that after the
issue of order dt. 09.12.1997, by disciplinary authority, the
Petitioner was entitled for his promotion from 01.01.1987
automatically, in fact the NTPC CDA Rules, 1977 provides the
examination of case by the Reviewing Authority and said
Reviewing Authority had exercised its power under Rule 22 of
the stated Rules and thus within his power to impose penalty
and differ with the decision of the disciplinary authority in the
matter and this was in continuation of the proceedings
initiated on the charge-sheet dt. 30.11.1986. They
emphatically mentioned that Petitioner cannot say that
charges against him have been quashed and consequently
claimed his promotion from 01.01.1987 on that basis alone.
25. In reply to para 39 they submitted that
departmental proceedings, on the basis of charge-sheet
dt. 30.11.1986 was still pending and as such the question of
considering the Petitioner for promotion w.e.f. 01.01.1987
does not arise. In response to para 41 they submitted that
Petitioner‟s case for promotion was considered by the
corporate office of R-1 and was promoted as Controller Grade-
II w.e.f. 01.01.1990, and Supervisor Grade-I from 01.04.1993
as per the Rule. They further denied that Petitioner was
entitled to be promoted to the post of Asstt. Engineer, his case
was not considered in interview held in DPC-93.
26. Lastly, in response to para 53-54 they denied that
the copy of the writ petition was served in the office of ED
(NCR) who was the Reviewing Authority. Further they
submitted the Reviewing Authority had merely exercised the
jurisdiction under Rule 33 of the NTPC CDA Rules, 1977.
27. The Respondents had filed additional affidavit also.
They submitted that the Petitioner was charge-sheeted by
memorandum dt. 12/13.11.1986 for misconduct. Six
imputation of misconduct leveled against him. Enquiry was
proposed to be held for such misconduct. The Enquiry Officer
found guilty of charge-sheet and accordingly a punishment of
withholding one increment with cumulative effect
w.e.f. 01.10.1988 was imposed upon him. In appeal vide order
dt. 01.01.1994 the aforesaid punishment was moderated by
altering „with‟ to „without‟ in the punishment thus the
punishment was to withhold one increment without cumulative
w.e.f. 01.10.1988.
28. One more fact reveled from the additional affidavit
filed by the Respondents that another memorandum of
charge-sheet was issued against the Petitioner on 01.03.1998.
Vide order dt. 24.09.1998 the Petitioner was „removed from
service‟. But, in appeal the order of „removal from service‟
was modified into „censure‟ by orders dt. 30.12.1988.
29. Further it is submitted by virtue of clause 2.8.3 of
policy of promotion of Respondent‟s corporation, the Petitioner
could have been considered for promotion only after one year,
after the effective date of punishment. Since punishment had
been imposed on 30.12.1988, therefore the bar of promotion
as per the Rules continued till 30.12.1989. Accordingly, by
order dt. 01.07.1990 the Petitioner was promoted
w.e.f. 01.01.1990 Controller Grade-II, which is a S-2 post. The
next promotion was due as per the Rule after three years and
accordingly by order dt. 25.06.1993 the Petitioner was duly
promoted to the next higher post as Supervisor Grade-I
(material) which is S-3 post, w.e.f. 01.04.1993.
30. The Respondent, further submits that the Petitioner
was again due for being considered for promotion in 1996. By
this promotion from S-3 post, the Petitioner could not have
been promoted to E-1 (Executive Cadre Post) directly, which is
inter cadre post for which recommending authority is the
Regional level DPC or he could have been promoted S-4 which
is intra cadre post for which recommending authority was
project DPC.
31. The Respondent further submits, on 07.03.1994 the
Petitioner filed review under Rule 33 of NTPC CDA Rules
against order dt. 01.01.1994 of the Appellate Authority, by
which the order of punishment imposed on the Petitioner, was
moderated. Reviewing Authority vide its order dt. 19.03.1996,
reopened the enquiry in respect of charge-sheet
dt. 12/13.11.1986. Since, the enquiry had been reopened the
disciplinary proceedings against the Petitioner remained
pending. Vide order dt. 09.12.1997 the disciplinary authority
exonerated the Petitioner. However, the disciplinary
proceedings against the Petitioner remained pending upto
09.12.1997.
32. It is submitted that as regards the promotion of the
Petitioner from S-3 to E-1 post, the Petitioner was duly
considered in the year 1996-1997 as well as by the Regional
Level DPC. The Petitioner as per the pre-requirement
appeared in mandatory test and interview for the same. The
Regional Level DPC did not recommend his name for
promotion to E-1 cadre in both the year i.e. 1996 and in 1997.
The result of the Petitioner qua his recommendation was kept
in sealed covers as disciplinary proceedings against the
Petitioner were going on till 29.12.1997. In the year 1998 the
Petitioner did not give his consent for transfer upon promotion,
as per the then requirement of management for considering
candidates for promotion to E-1 Cadre, therefore, the name of
the Petitioner was not forwarded to the Regional level DPC.
33. Since the year 1999 onwards the Petitioner did not
come forward for test or interview which, inter alia, is
mandatory pre-requisite for being promoted from S-3/S-4 to
E-1 Cadre, therefore, the name of the Petitioner could not be
considered after the year 1999.
34. As regards the promotion of the Petitioner from S-3
to S4 post the Petitioner was duly considered by the Project
Level DPC along with other eligible candidates in the year
1996-1997. But, due to the pendency of departmental
proceedings against him, he was not recommended for
promotion to S-4 post by Project DPC. However, in the year
1998 after his exoneration by order dt. 09.12.1997 the
Petitioner was promoted to S-4 Grade by order dt. 28.07.1998
w.e.f. 01.01.1998.
35. First of all, I will deal with the issue raised in the first writ
petition i.e. CWP No.4566 of 1998.
36. Ms. Richa Kapoor, learned counsel for the Petitioner has
raised the following issues:
(a) That since in the charge-sheet relating to fate case,
the disciplinary authority passed an order
dt. 16.12.1987 of withholding of one increment with
cumulative effect, therefore, one year promotion was
withheld i.e. upto December, 1988.
(b) In the another disciplinary case out of alleged
suppression of fact i.e. while taking employment with
the Respondent the Petitioner have failed to inform
about his previous offer of appointment, penalty of
centure was issued vide order dt. 30.12.1988 and
thus the Management has withheld promotion for
another one year i.e. December, 1999.
(c) The Respondent Management have given reason of
withholding of promotion as above relying upon
Rule 2 & 3 of 1982 Rules of promotion policy of the
Respondent, which stipulates that promotion is to be
withheld in case of minor penalty for one year from
the date of punishment.
(d) The Respondent Management even after imposing
the above penalties again started withholding the
punishment of the Petitioner from 1993 onwards on
the alleged ground of pendency of inquiry.
(e) The Management have stated to have consider the
case of the Petitioner in DPC of 1996, 1997 and
1998, wherein DPC allegedly did not recommend
Petitioner for promotion due to pendency of inquiry.
37. Learned counsel for the Petitioner further submits that on
12/16-12-1987, on charge-sheet dt. 12/13-11-1986; the
Respondent has issued a penalty order of withholding of one
increment with cumulative effect. Under the statutory Rules of
NTPC (CDA Rules), withholding of promotion is also a defined
penalty under Rule 23 of NTPC, Conduct, Discipline and Appeal
Rules, 1977 (as amended upto July 1997), Rule 23 whereof is
reproduced hereunder:
"Rule 23 Penalties.
The following penalties may be imposed on an
employee as hereinafter provided, for
misconduct committed by him or for any other
good and sufficient reasons.
(a) ..........;
(b) Withholding of increments of pay with or
without cumulative effect;
(c) .............;
(d) ................"
38. The NTPC had issued a policy dt. 10-09-1985 which
is applicable to the Petitioner as per his service terms and
conditions, as stated in policy as under:
"It has been raised on a number of occasions that
in case of minor penalty of Censure, stoppage of
increment etc is awarded the promotion of the
employee concerned has also to be withheld for
one year and as a result the employee may have to
undergo double punishment.....
39. This has been examined and the following decisions have
been taken in the matter:-
"1.0 Vigilance proceedings and disciplinary
proceedings should be finalized expeditiously
in all cases and extra care should be taken in
respect of the employees who are in the zone
of consideration for promotion
2.0. However, where cases are prolonged while
giving final decision in awarding punishment,
the Disciplinary Authority may keep in view the
fact that in case, where minor penalty is
intended to be imposed the net result should
not lead to withholding of promotion for more
than one year and...................., from the
date the employee was otherwise found
suitable for promotion.
2.1 Accordingly, in case where DPC proceedings
have already been taken place, the
punishment should be formulated in terms of
withholding of promotion for one year counting
from the date the employee was otherwise
found suitable rather than imposing any other
form of minor penalty on him.
Other terms and conditions of the promotion
policy circulated vide CPC Nos. 94/82 and
95/1882 both dt. 04/05/1982 shall remain
unchanged."
40. Learned counsel for the Petitioner further submits that
the Clause 2.8.3 of 1982 Rules stipulating that promotion is to
be withheld from the date of punishment is wrongly invoked
which was superseded by the policy dt. 10.09.1985 which
made it clear that if promotion is to be held for one year in
case of minor penalty, it has to be from the date the employee
was otherwise found suitable for promotion.
41. She argued that according to the policy, the Petitioner
has to be promoted with effect from 01.01.1988 as Controller
Gr.-II whereas the Respondents have discriminated him alone
and not released his promotion though he has been
recommended for promotion by DPC in 1987 and also in 1988.
Thus, the Petitioner has been subjected to double penalty in
terms of the policy. Under the aforementioned Rule 23 of NTPC
CDA Rules, 1977, penalties are bifurcated into two heads,
„minor penalties‟ and „major penalties‟. Withholding of
promotion as well as withholding of increments are two distinct
and separate penalties, which falls under the head, „minor
penalties‟. Learned counsel for the Petitioner referred the
case of R.B. Singh vs. Union of India and others,
2008(2) SLJ 214 CAT wherein it was held:
"Under Rule 11 of CCS (CDA) Rules, 1965 penalties
are bifurcated into two heads, "minor penalties"
and "major penalties". Withholding of promotion as
well as withholding of increments are two distinct
and separate penalties, which fall under the head
"minor penalties". It is well settled that more than
one penalty cannot be imposed simultaneously. If
penalty of withholding of increment is allowed to
operate as affecting his promotion, it would
tantamount to inflicting another penalty of
withholding of promotion, which is clearly
impermissible in law."
42. She further states that despite orders of this Court,
Respondent have neither considered his claim during
pendency of the enquiry or on culmination of inquiry. The
Respondent has not taken any action on the order of this Court
dt. 21.03.1996 passed in the instant writ petition i.e.
CWP No.1422 of 1995 in consideration for promotion from due
dates i.e. with effect from 01.01.1988 and thereafter.
Moreover, the Respondents have further also withheld the
promotion which implied another penalty on the Petitioner.
43. She further submits that the Petitioner has been
„exonerated‟ from all the charges alleged in charge-sheet
dt. 12/13.11.1986 vide order dt. 09.12.1997, despite of several
requests to the Respondent have not considered his case in
compliance of orders of Punjab and Haryana High Court and
this Court passed in CWP No. 8930 and CWP No.1422 of 1995
respectively. The Respondent no.3 has sent his case through
note-sheet dt. 11.03.1998 vide Diary No.1152 dt. 27.03.1998,
the Petitioner has stated that Respondents have not filed reply
of para no.41 of CWP 5973 of 1985. The Petitioner has been
further deprived the right of consideration in RPC convened
after his exoneration in the year 1998 but despite all eligibility
he has been deprived his right of consideration in the year
1998. The Respondent once again illegally deprived him his
right of consideration from due dates and once again violated
the orders of the aforementioned two courts.
44. Learned counsel for the Petitioner further submits that
the impugned order of promotion dt. 28.07.1998 promoting
the Petitioner as Sr. Supervisor (materials) is in violation of all
the Rules, law and even without the decision of CPC is illegal,
arbitrary, contemptuous and violation of orders of the above
two Courts. Being aggrieved by the arbitral orders, the
Petitioner has filed the instant writ petition. Learned counsel
for the Petitioner has referred the case of K. Somaiah v.
Zonal Manager, Food Corporation, 1974 SLJI (SM)
wherein it was held:
"When disciplinary proceedings are initiated and
they are yet to be completed.... then he cannot be
punished through either by withholding of
promotion or by non-consideration of his case for
promotion. In either case, it amounts to imposition
of punishment, violating both the letter of sprit of
Article 311 of the Constitution of India."
45. Learned counsel for the Petitioner further argues that all
channels of promotions were distorted by changing cadre from
Jr. Controller (Post of Operation Department) to Controller
Grade-II in Material Department illegally and arbitrarily.
Otherwise also, the Petitioner has been considered and
recommended against post of Operation Department i.e. in his
channel. As per the jobs specifications for the post of
Sr. Supervisor (materials) is as under:
"On Channel of Promotion
1) Channel distorted by Changing cadre from Jr.
Controller (Post of Operation Department) to
Controller Gr. II in material department
illegally, arbitrary. No such post in materials.
Otherwise also the Petitioner has been
considered and recommended against the post
of operation department i.e. in his channel.
Job specification for the post of Jr. Supervisor
(materials) is
- Diploma in mechanical engg.
- Graduate + one year diploma in materials
management."
46. Learned counsel asserted that the Petitioner has
refused to accept the same. This unlawful change and non
promotion from due dates has adversely affected his career
prospects.
47. Learned counsel has relied upon the case of
S. Mohandas v. Cochin Port Trust WP(C) 25078 of 2006
Held: there is nothing to show as to how the members of DPC
assessed the suitability of the candidates by means of the
interview. Another case of Harigovind Yadav v. Rewa Sidhi
Grain Bank & others, Appeal (Civil) 1153 of 2003. Held:
The appellant was secured higher marks and he has denied
promotion on the ground that he fails to secure minimum
marks in the interview. Allowed promotion.
48. Learned counsel for the Petitioner submits that
despite of exoneration order the Respondent has deprived him
his right of consideration for promotion rather they have not
even called him for the interview. The debarring is illegal and
against the promotion policy. Thus, they have no right to deny
him promotion of Assistant Engineer (O&M) and change his
Channel of promotion.
49. Learned counsel has referred the case of A.C.
Mitra vs. State of Orissa, AIR 1970 Orissa 19 wherein it
was held that, Non-Consideration of a claim of an employee,
otherwise qualified for consideration, vitiate the exercise of
jurisdiction in the matter, and subject the action of the
appropriate authority in the matter of grant of promotion, to
the scrutiny of the court. Once the court is satisfied the
employee was entitled to consideration has been left out, a
case is made out for interference for breach of the guarantee
conferred under Article 16 of the Constitution of India.
50. Learned counsel for the Petitioner has drawn
attention of this Court to the order dt. 21.03.1996 passed by
Division Bench of this Court wherein this Court has observed
as under:
"Learned counsel for the Respondents states that he
has instructions to say that the reviewing authority
has considered the Petitioner‟s case and quashed
orders annexures II and III-A dt. 12/13th December,
1987 and 1st January, 1994 respectively and has
directed reopen the enquiry proceedings held under
Rules 25 of the NTPC CDA Rules, from the stage of
2nd June, 1987, namely, of giving the Petitioner due
opportunity to cross examine all the management
witnesses and to decide the departmental
proceedings in accordance with law after supplying
copy of the report of this enquiry to the Petitioner. It
is also stated that Shri S.S. Mediratta, Senior
Manager (OS) of NCR Headquarters has been
nominated to conduct the enquiry form the stage
aforementioned.
Learned counsel for the Respondents states that
subject to the Petitioner cooperating Respondents
will ensure to have the departmental proceedings
completed within a period of six months.
Learned counsel for the Petitioner states that in view
of the above he has instructions to withdraw the
petition with liberty reserved to the Petitioner to
approach the court again in case necessity thereon
would arise and in case on culmination of the
departmental proceedings his claim for promotion
from the due date is not favourably considered. It is
also stated that the question as regards Petitioner‟s
claim for promotion from the date and during the
pendency of the departmental proceedings be left
open with liberty reserved to the Petitioner to
approach the court in case necessity thereof would
arise in future.
Leave and liberty granted. The petition is disposed
of as withdrawn."
51. Thus whole action snags of malafide against the
Petitioner, as mentioned in rejoinder namely Sh. Vashist Dubey
and Sh. S.N. Bhojasiya, DPS Chouhan stated involved in the
fete case, the management did not proceed against them.
There is no charge-sheet against them. The Petitioner is being
victimized with malice. Even in evidence, it has come on
record that the Petitioner was not seen in the fete and hence
„exonerated‟. The „censure‟ has no effect on his right to be
considered.
52. Learned counsel for the Petitioner further points out that
the promotion order for Sr. Supervisor (Materials) and S4 was
issued wrongly and changed channel and not given due
retrospective benefits. This issue is a part of incident in
WP(C) No.4566 of 1998. She submits that in spite of the Rule
issued in the aforesaid writ petition and notice received by the
Respondent, a show cause notice dt. 03.11.1998 was issued
arbitrarily and injudicious delay of 12 years and now 24 years,
therefore, the „censure‟ was only to harass and victimize the
Petitioner, which is in any case after Rule, 1989, has no effect
on promotions. Even if „censure‟ is there, the Petitioner was/ is
entitled to relief prayed for in the instant writ petition.
53. On the other hand, on behalf of Respondent learned
counsel Sh. S.K. Taneja, Senior Advocate submits that the
Petitioner was appointed as Jr. Controller (S-I) after completion
of training with effect from 13.12.1983 and posted at Korba
Super Thermal Power Plant, Korba. By Memorandum
dt. 12/13.11.1996, the Petitioner was charge-sheeted for
misconduct under CDA Rules of NTPC. The charge framed
against the Petitioner mentioned in Article of Charges as
under:
"Article of Charges
Article-I
Shri R.K. Sood, "E. No.21361, Jr. Controller , O&M,
shouted anti-management and anti-Mahila Samaj slogans
at about 7.30 pm on 07.11.1986 at the entrance gate of
the Fate premises in Jamnipall Permanent Township. He
tried to disrupt the official function by inciting violence
among other employee and thereby he committed
misconduct under Rele 7, 9, 5(5), 5(12), 5(20), 5(21) of
CDA Rules of NTPC.
Article-2
While the Fate fanfare was going on smoothly, Shri R.K.
Sood went to the Jalebi stall and threatened the ladies
managing the stall with dire consequences if they did not
close down the stalls and misbehaved with them, thereby
he violated Rules 5(5), 5(17), 5(20) and 5(21) of the CDA
Rules of NTPC and committed misconduct.
Article-3
Shri Sood went to the dais and disrupted the orchestra
program and snatching the mike delivered provocative
speech in indecent language threatening the organizers
to close down the Fete and appealed to the gathering to
boycott the program. By the above act, he has
committed misconduct under Rule 5(5), 5(20) and 5(21).
Article-4
Shri Sood along with others came down the dais and
threatened Shri J.K. Mehta for sterring the program and
scolded (sic, scolded) him. By the above act, Shri Sood
committed misconduct under Rule 5(5), 5(20) and 5(21).
Article-5.
Shri Sood along with others forced the person-in-charge
of lighting the fireworks to light up the crackers before
the scheduled time and being afraid, the person-in-
charge did the same. By the above, Shri Sood committed
misconduct under Rule 5(5), 5(10), 5(12), 5(20) and
5(21).
Article-6
After the fireworks, Shri Sood along with others went to
the dais and disrupted the house program and tried to
incite violence and instigated the gathering to demand
refund money and boycotting the program and delivered
a provocative speech. By the above acts, he committed
misconduct under Rule 5(5), 5(10), 5(12), 5(20) and
5(21)."
54. The Petitioner filed his reply to the charge-sheet and
submitted that charges were vague, baseless and to victimize
him. The Respondent not being satisfied with the reply ordered
an enquiry into the charges under Rule 25(3) of NTPC Conduct,
Discipline and Appeal Rules.
55. Accordingly, the enquiry was fixed for 02.06.1987, but
the Petitioner deliberately avoided to attend the proceedings
on the pretext of his illness and sent a request letter along
with his medical certificate for fixing another date. Finding his
request unjust, the same was rejected. Accordingly, the
Enquiry Officer proceeded with the Enquiry and concluded it
after examining all the witnesses (PW‟s) on the said date
i.e. 12/13.12.1987, the Disciplinary Authority had imposed
punishment of „withholding of one increment with cumulative
effect‟. Further, it was ordered that the next increment which
falls due on 01.10.1988 could not be released.
56. Being aggrieved, the Petitioner filed a statutory appeal
against the aforesaid order before the General Manager,
Korba. Subsequently, the Petitioner was transferred to
Badarpur and thereafter to Yamuna Nagar and his appeal
remained pending.
57. Though the Petitioner asserts that he was entitled for
promotion with effect from 01.01.1987, relying on the minutes
of the meeting with representative of Action Committee held
on 16.01.1989, he pleaded that all pending cases ought to
have been closed against him. Further, relying on NTPC
guidelines dt. 10.09.1985, he pleads that as per the guidelines,
his promotion could be withheld only for one year. The minutes
dt. 16.01.1989 and guidelines were both flouted.
58. Learned Senior Advocate has pointed out that the
Petitioner has projected the case as he was suffered twice as
he was first recommended for promotion by DPC on 1987, then
again recommended for promotion by DPC in 1988. However,
this recommendation was given effect to only in the year
1990. The Petitioner has also alleged that the Respondent
deliberately kept the appeal as well as his claim for promotion
pending. He was forced to approach Punjab & Haryana High
Court by way of CWP No.8930 of 1993 and sought the
following reliefs:
"(i) Send for the records of the case and after perusal of
the same;
(ii) Issue an appropriate writ, direction or order
quashing the impugned order dt. 12/16.12.1987,
Annexure P-2, vide which the punishment of
withholding of one increment with cumulative effect
has been awarded to the Petitioner in an illegal and
arbitrary manner also keeping in view the fact that
the statutory appeal filed by the Petitioner against
the impugned order dt. 12/16.12.1987, Annexure P-
2, has not so far been decided by the Appellate
Authority;
(iii) Respondent no. 1 to 4 be further directed to
consider and promote the Petitioner for his
promotion to the higher posts with effect from the
dates his juniors have been promoted and to grant
all other consequential benefits to the Petitioner
such as fixation of pay, seniority etc. for which the
Petitioner is illegally entitled;
(iv) This Court may also issue any other suitable writ,
direction or order which it may deem fit in the
circumstances of this case;
(v) The costs of this petition may also be awarded to
the Petitioner."
The said writ C.W.P. No.8930/1993 was disposed of by Order
dt. 27.07.1993 (page 84 at 87) in the following terms:
"The Respondents are directed to dispose of the appeal,
Annexure P-3, filed by the Petitioner within a period of
three months from the communication of this order.
Dasti on payment, with the direction aforesaid, this writ
petition stands disposed of.
If appeal succeeds, the Petitioner will be given
consequential benefits within reasonable time."
59. Accordingly, the Appellate Authority had decided this
statutory appeal and modified the punishment to that of
"withholding of one increment without cumulative effect
w.e.f. 01.10.1988."
60. Thereafter, the Petitioner preferred a review petition
against the decision of Appellate Authority, contended that
reviewing authority [Executive Director (NCR) NCR HQ] kept in
review pending for two years and the Petitioner was
constrained to file CWP No.1422/1995 before this Court
seeking following directions:-
(a) Directing the Respondents to grant promotion to the
Petitioner with all consequential benefits w.e.f. the
due date in the light of guidelines dt. 10.09.1985 laid
down by the Respondents;
(b) Direct the Respondents to dispose of the Review
Petition dt. 07.031994 preferred by the Petitioner
under Rule 33 of NTPC (CDA) Rules, 1977 within a
period of one month;
(c) Pass any further order(s) as this Hon‟ble Court may
deem fit and proper under the circumstances of the
case.
61. The aforesaid writ petition was decided by order
dt. 21.03.1996, whereby this Court recorded the effect of the
Reviewing Authority having quashed the order of Disciplinary
Authority dt. 12/13.12.1987 as well as that of Appellate
Authority dt. 01.01.1994 and reopened the enquiry from the
stage of 02.06.1987. The Petitioner was given due opportunity
to cross-examine all the management witnesses, copy of the
report of the enquiry was supplied to the Petitioner as per law.
Thereafter, Sh. S.S. Mendiratta, Sr. Manager (OS) of NCR HQ
was nominated to conduct the enquiry from the stage
aforementioned subject to the co-operation of the Petitioner
and ensured the Respondents will complete the departmental
proceedings within a period of 6 months.
62. The Petitioner has contended that after aforesaid order
dt. 21.03.1996 and penalty having been quashed and he
became entitled for promotion w.e.f. 01.01.1987 and also
entitled to subsequent promotions. Further the Petitioner
asserted that Respondents failed to conduct DPC 1996 and
DPC 1997 according to the NTPC promotion policy and failed to
consider the Petitioner from his due dates. However, the same
has been kept under seal cover as are the assertion of the
Petitioner in para 34 of CWP 5973/1998.
63. Further the Petitioner has asserted that he gave full
cooperation and enquiry was completed much before time
limit and disciplinary authority Deputy General Manager BTPS
909/1997 issued order of exoneration. The Petitioner again
submitted to Executive Director, NCR (HQ)/Reviewing Authority
for promotion. But the Respondents kept the decision
pending, therefore, Respondent No.3 issued promotion order
dt. 28.07.1998 promoting the Petitioner as Senior Supervisor
(Material) S-4 including Petitioner‟s claim of promotion from
due dates and also changed "promotion of junior applicable to
Petitioner".
64. Thus, Petitioner alleged that his claim of promotion from
due dates has been ignored withholding promotion from due
dates despite orders from the Court and service "exoneration"
is illegal arbitrary, discriminatory and against quality of good
conscious.
65. Learned counsel for the Respondent in his written
statement has prepared the chart of the Petitioner‟s claim for
promotion vis-a-vis granted to him is spelled out in the chart
below:-
Promotions entitlement to Petitioner's Claim
promotion and given to
Petitioner
Promoted post Effective Claimed Claimed
from date post effective
date
Controller Grade II w.e.f. Controller 01.01.1987
(S2) (letter dt. 1.01.1990 Grade-II
01.07.1990) (S-2)
Supervisor Grade I w.e.f. Supervisor 01.01.1990
(S3) 1.04.1993 Grade I (S3)
(letter dt.
25.06.1993)
Sr. Supervisor w.e.f. Assistant 01.04.1993
(material) (S4) 01.01.1998 Engineer (E-
(letter dt. 1)
28.07.1998)
Sr.Asstt. 01.04.1996
Engg. (E-2)
Engineer (E- 01.04.1997
2A)
66. During the course of arguments, the Petitioner has urged
following grounds for entitlement of his promotion:-
(I) Even considering that penalty of withholding
of one increment with cumulative effect, which is
a minor penalty and even assuming the pretext
of the case being pending, the Respondent was
duty bound to release the promotions of
Petitioner w.e.f. 01.01.1988 according to own
guidelines of 10.09.1985. But the Petitioner failed
to release the promotion either from 01.01.1987
or from 01.01.1988.
(II) Respondent again despite its undertaking
dt. 16.01.1989 to promote the Petitioner
w.e.f. 01.01.1988 failed to release such
promotion and caused double jeopardy to the
rights of Petitioner.
(III) Petitioner has become eligible and entitled
to promotion to the post of Controller Grade II
(S2) w.e.f. 01.01.1987 as a result of exoneration
of the charges leveled against the Petitioner in
the year 1986 and therefore subsequent
promotions as Controller Grade I (S3)
w.e.f. 01.01.1990 and became due for
consideration for promotion to Asstt. Engg. (E1)
w.e.f. 01.01.1993 and Sr. AE (E2)
w.e.f. 01.01.1996 and Engineer (E2A)
w.e.f. 01.01.1997.
(IV) Erroneously relying on certain amendment
dt. 03.02.1989 in promotion policy, which
pertains to some clarification in sealed cover
procedure has contended that penalty of
"censure" does not debar Petitioner‟s
consideration from promotion.
This contention is ex-facie fallacious besides the
said amendment pertains only to the executives
(those failing in -1 and onwards), whereras the
amendment was not applicable to the employees
falling in workmen and supervisory category, in
fact such amendment in the supervisory and
workmen category was made with effect from
14.06.1991.
01. WHEREAS the Disciplinary Authority vide his
order No. BTPS/C&M/97-98/1 dt. 09.12.1997 had
exonerated you from the charges leveled against
you vide charge sheet No.
KS:PERS:ESTT:PF:21361:2007 dt. 12/13.11.86;
02. AND WHEREAS I have called for the entire
record of the case in the capacity of Reviewing
Authority, exercising my Powers under Rule 33 of
NTPC Conduct, Discipline and Appeal Rules,
1977;
03. AND WHEREAS after going through the
records relating to the case including the
proceedings and the report of the Enquiry Officer,
I have observed that the Disciplinary Authority
while passing the order has overlooked the fact
that there is sufficient material on the basis of
which the Enquiry Officer has given his findings
and that 3 of the Articles of charges (Articles 1, 3
& 6) are proved substantially, i.e., Misconduct
under Rule 7, Rule 5(5), 5(12), 5(20) and 5(21) of
the NTPC Conduct, Discipline & Appeal Rules
accordingly stand proved.
04. AND WHEREAS the charges which have been
proved are of very serious, nature involving
disturbance and disruption of an official function,
disorderly and indecent behavior within the
premises of the Company, acts subversive of
discipline and abetment thereof, the Disciplinary
Authority seems to have failed to appreciate the
gravity of these charges.
05. AND WHEREAS considering all these aspects
and the material available on record and after
proper application of mind, I am of the view that
this is not a fit case for exoneration but warrants
punishment;
06. Though the charges proved are of a serious
nature, taking a lenient view this time I, as
Reviewing Authority, propos to impose the
penalty of "CENSURE" in terms of Rule 23(a) of
NTPC Conduct, Discipline and Appeal Rules and
issue this notice of you to show cause within 15
days from the date f receipt of this notice as to
why the penalty of "CENSURE" should not be
imposed upon you. A copy of the report of the
Enquiry Officer Sh. S.S. Mediratta is enclosed.
07. Please note that in case I do not receive any
reply of this show cause notice within stipulated
period of time as mentioned hereinabove, I shall
presume that you have nothing to say and shall
pass necessary orders accordingly.
08. This notice is being issued in duplicate.
Please acknowledge receipt on the duplicate
copy.
Sd/-
(J.N.Sinha)
Executive Director (NCR)
67. While dealing with the averments made in
W.P.(C) 4566/1998, the learned Senior counsel submits as
under:-
(A.) The Respondent have controverter the plea of the
Petitioner and stated that due promotions as per
promotion policy of NTPC dt. 04.05.1982 read with
guidelines stated on 10.09.1985 had been given.
There was no understanding to grant promotion
w.e.f. 01.01.1987 to 01.01.1988. There has been no
utilization. The Petitioner has himself being non-
cooperating in the enquiry which resulted in delay of
disciplinary proceedings. It was also asked by the Petitioner
that the Petitioner had deliberately not mentioned that in
memorandum of Charge Sheet dt. 01.03.1998, in which
enquiry was held and punishment was awarded as under:-
"Punishment of removal from Service"
However, he submits that vide order dt. 24.09.1998, the
appellate authority (ED-WR) by its order dt. 30.12.1998
modified the punishment to that of "censure". This
punishment of "censure" was not assaulted by the
Petitioner and the said punishment attained finality. The
Petitioner has been mis-representing the court and not
apprising the fact of his punishment of "censure" on his
promotion as per the promotion policy of NTPC.
(B.) The Respondent have filed consolidate additional
affidavit on 12.12.2002 for both the writ petitions,
which was permitted to be placed on record. The
Respondent has clearly spelt out in the said counter
as under. Relevant portions whereof reads as
under:-
"1. That the Petitioner was charge
sheeted by memorandum dt. 12/12.11.1986 for
misconduct; six imputations of misconduct
leveled against the Petitioner were annexed
with the memorandum. An inquiry was
proposed to be held for such misconduct.
2. After conclusion of enquiry the Petitioner
was found guilty of charge sheet and
accordingly a punishment of withholding one
increment with cumulative effect with effect
from 01.10.1988 was imposed on him. In
appeal by Order dt. 01.01.1994 inflicting
punishment was moderated by altering "with"
to "without" in the punishment thus
punishment was to withhold one increment
without cumulative effect with effect from
01.10.1988.
3. Another memorandum of charge sheet
was issued against the Petitioner on
01.03.1988. After enquiry the Petitioner was
removed from services by Order
dt. 24.09.1988. A copy of said Order
dt. 24.09.1988 is annexed as "Annexure R-
A1". In appeal the order of removal from
service was modified into "censure" by Order
dt. 30.12.1988. A copy "Annexure R-A2".
4. By virtue of clause 2.8.3 of policy of
promotion of Respondent Corporation, the
Petitioner could have been considered for
promotion only after one year after the
effective date of punishment. Since punishment
had been imposed on 30.12.1988, therefore the
bar of promotion as per Rules continued
till 30.12.1989. Accordingly by Order
dt. 01.07.1990 the Petitioner was promoted
with effect from 01.01.1990 as Controller
Grade-II, which is a S-2 post. A copy of the said
order dt. 01.07.1990 is annexed herewith as
Annexure R-A3."
(C.) Besides, the Respondent have relied upon the
promotion policy dt. 04.05.1982 of NTPC applicable
to supervisory category, relevant portions whereof
are re-produced as under:-
"2.8.2 No employee under suspension or
against whom disciplinary or vigilance proceedings
have been initiated shall be promoted until he is
unconditionally reinstated or exonerated. In case of
unconditional reinstatement or exoneration, the
effect, but the financial benefit accruing due to the
promotion order is issued and no arrears will be
payable on this account unless specifically
mentioned otherwise in the promotion order.
2.8.3 An employee who has been awarded any
minor punishment will be debarred for a period of
one year, from the effective date of punishment
order, from consideration for promotion.
2.8.4 No employee who has been awarded three or
more minor punishments in the same calendar year
shall be considered for promotion for next two
years from the effective date of the last punishment
order."
(D.) A reliance was also placed on the guidelines of
promotion of employees affected by vigilance and
other disciplinary proceedings dt. 10.09.1985,
relevant portion whereof reads as under:-
"If any employee whose case under disciplinary
proceedings is in the zone of promotion and is
found suitable by the DPC, the DPC Minutes will be
kept in a sealed cover. On completion of
vigilance/disciplinary proceedings if the employee is
exonerated the recommendations of the DPC after
due approval of competent authority would be
announced and implemented. In case an employee
is found guilty and given some punishment, the
DPC proceedings become null and void. In such
cases, the stand would be discussed in the DPC in a
meeting. Assessment by the earlier DPC against
other factors of promotion, if any, like interview,
trade test etc., shall be taken into consideration by
the fresh DPC in its meeting.
Other terms and conditions of the promotion policy
circulated vide CPC Nos. 94/82 and 95/1982 both
dt. 04.05.1982 shall remain unchanged."
(E.) He further submits that the Petitioner filed an
affidavit on 5.5.2009 and has relied on the some
internal department communication, which, he
obtained through RTI from Respondent. The
Respondent filed its reply dt. 22.04.2010 stating
that the Petitioner was supplied five documents but
only three documents which pertains to inter office
communication from KORBA to BTPS were filed and
other documents were mischievously concealed.
The concealed documents were the material as it is
the final order dt. 20.02.1990 of the corporate
office.
(F.) He further submits, inter office communication is
under relevance in the light of final order
dt. 20.02.1990. The Petitioner relied on inter office
correspondence deliberately concealing the final
order as an act of mis-conduct.
(G.) Further, he submits that the Petitioner cannot claim
promotion w.e.f. 01.01.1987 or 01.10.1998 merely
on internal departmental communication, especially
when the final decision making authority had
conveyed its decision vide letter dt. 20.02.1990, the
said decision was acted upon and due promotion
was given w.e.f. 01.01.1990 (S-2), thereafter; the
Petitioner was promoted to S-3 w.e.f. 01.01.1993
and considered for promotion to S-4 and E-1 in the
year 1996 and 1997.
(H.) Further, after exoneration, he was promoted to S-4
w.e.f. 01.01.1998 as per NTPC promotion policy. To
support the aforementioned submission, the
Respondent has cited Apex Court‟s decision as
(2011)4SCC200 Para 15, whereof reads as under :-
"15. It is trite that inter-departmental
communications and notings in
departmental files do not have the sanction
of law, creating a legally enforceable right.
In Sethi Auto Services Station V. D.D.A., a
Division Bench of this Court, in which one of
us (D.K. Jain, J.) was a member, has
observed thus: (SCC pp. 185-86, para 14)
14. ....Needless to add that internal
notings are not meant for outside exposure.
Notings in the file culminate into an
executable order, affecting the rights of the
parties, only when it reaches the final
decision-making authority in the
department, gets his approval and the final
order is communicated to the person
concerned." (Emphasis supplied)"
68. The Respondent further submits that the Petitioner has
not been able to make out any ground for relief under Article
226 of Constitution in this petition [W.P. (C) 4566/1998]. Here,
learned Sr. Advocate, Sh. S.K.Taneja has argued and dealt with
the points raised by the Petitioner.
The Petitioner is seeking promotion with effect from
01.01.1987/01.01.1988 (S-II) as per promotion policy dt.
04.05.1982 read with guideline dt. 10.09.1985. As per
clause 2.8.3 in case of minor punishment, the employee is
debarred for one year form the effective date of punishment
from consideration for promotion. Guidelines provide that
disciplinary proceedings be decided expeditiously so that
employee‟s promotion is not withheld beyond one year in
case of minor punishment, and two years in case of a major
punishment from the effective date and in terms of
paragraph III of the guidelines dt. 10.09.1985, in case of
some punishment, DPC proceedings become null and void
and earlier assessment by the DPC would be taken into
consideration by the fresh DPC in its meeting.
69. Learned counsel for the Respondent submits that the
Petitioner has not challenged the validity of either the
promotion policy or the guidelines. The Petitioner had duly
been considered as per the promotion policy and guidelines.
The other ground setup by the Petitioner is that in view
of minutes of meeting with the representation of Action
Committee held on 16.01.1989 certain points of
understanding were mutually agreed upon, the same are
at page 45 of the petition. The point No.1 relevant to
point in issue reproduced as under:
"that place of posting of Shri Sood will be
changed to B.T.P.S. and last date of joining
will be 27th January, 1989. Intimation about
the DPC recommendations for his promotion
w.e.f. 01.01.988 will be sent to BTPS along
with NOC/LPC. All the pending cases will be
closed at K.S.T.P.P."
70. He submits, from a reading of these minutes of meeting,
it cannot be said that Respondent had undertaken or agreed to
promote the Petitioner for S-II with effect from 01.01.1988 de
hors the Promotion Policy/guidelines. Even otherwise, the
Petitioner in W.P. (C) No. 8930/1993 filed on 23.07.1993 before
Punjab & Haryana High Court pleaded this undertaking in para
13 to 15 but did not seek its enforcement and the High Court
vide its order dt. 27.07.1993 directed the Respondent to
decide the appeal only.
71. Further submits, similarly, in Writ Petition (Civil) No.
1422/1995 before this Court, the Petitioner did not plead about
any undertaking or its enforcement. The Petitioner cannot be
allowed promotion on the basis of the said undertaking
dt. 16.01.1989 at this stage.
The Petitioner submitted that he has been subjected to
double jeopardy inasmuch as the Petitioner having been
awarded the minor punishment of withholding of one
increment and Petitioner is promotion has also been
withheld for one year from the effective date of
promotion and as such the Petitioner has to undergo
double punishment. It is submitted that this
Rule/guideline is violative of Article 14/16 of the
Constitution of India and are ultra vires of Constitution.
72. In this regard, it is firstly submitted by learned
Sr. counsel for the Respondent that the Petitioner has not
sought the quashing of the promotion policy and the guideline.
Besides this the Rule of NTPC debarring promotion for one
year from the effective date of punishment order cannot be
held to be a case of double jeopardy or arbitrary exercise of
power. The employee cannot be rewarded with promotion
during the currency of punishment period. In case cited as
1995 (3) SCC 273, the Hon‟ble Supreme Court held as under:
"7.......Unless the period of punishment gets
expired by efflux of time, the claim for
consideration during the said period cannot be
taken up. Otherwise, it would amount to
retrospective promotion which is impermissible
under the Rules and it would be a premium on
misconduct...."
73. In the present case admittedly the Petitioner was
considered and given due promotion with effect from
01.01.1990 (S-II) after the expiry of punishment period of one
year. It is highlighted that in the DPC of 1990, the results of
earlier DPC‟s of previous years were duly considered as per
the Promotion Policy and guidelines.
That it has been contended that channel of promotion
has been changed to deprive the Petitioner of his due
promotion.
74. The Respondents have demonstrated in their documents
that they have employees in Supervisory and Executive
category besides workman etc. Promotion policy provides for
different channel and designation for Supervisory category and
for Executive category. While the designation in Supervisory
category are S-1, S-2, S-3, S-4 etc; and in Executive category
the designations are E-1, E-2, E-2A, E-3, E-4 etc. From S-3
there are two channels open for promotion, firstly supervisor in
S-3 can be considered for promotion to S-4 level and/or can
also be considered for E-1 level directly subject to fulfillment of
conditions and eligibility criteria, the person in S-3 designation.
75. On being considered to E-1 the employee at S-3 has to
qualify a written test and then qualify in the interview as per
the promotion policy.
76. The learned senior counsel for the Respondent submits
that in the instant writ petition, Petitioner and some others
joined the corporation as Diploma Engineers and after training
appointed as Junior Controller/Jr. Fireman/Jr. Supervisor (S-1-
Post). The Petitioner‟s first posting was in (O&M) Department
and was given the designation of Jr. Controller (O&M) (S-1
post) and promoted w.e.f. 01.01.1990 (S-2 Post) and posted in
store Department at Badarpur. The Petitioner submits that he
has accepted the said proportion w.e.f. 01.01.1990 (S-2)
without having regard to his representation dt. 29.06.1990. In
the year 1991, Petitioner was posted in the different
Departments i.e. Supervisor Gr.-I (S-2 Post) in Electric Erection
Department, Supervisor Gr.-I (Material), Yamuna Nagar,
(Harayana) and then designated as Supervisor (Material and
Contract) as S-3 Level at Badarpur. There was no change of
channels. As per the promotion policy in NTPC, the channel of
promotion is clear and not ambiguous.
77. Further submits that in the present case, the Petitioner
was again due for being considered for promotion in year
1996. By this promotion from S-III Post, Petitioner could have
either been promoted to E-I post directly or to S-4 Post. The
case of Petitioner‟s promotion in the year 1996 and 1997 has
elaborately been explained in counter affidavit read with
additional affidavit and also in reply dt. 14.01.2011 to
CM No. 14544/2010. The relevant extracts of the said reply
dt. 14.01.2011 at its internal pages 7 and 8 is reproduced as
under:
"....The reviewing authority by its order dt. 19.03.1996
had reopened the enquiry against the Petitioner in
respect of charge-sheet dt. 12/13.11.1986. It is also a
fact that the Petitioner was duly evaluated and
considered for promotion in the year 1996 and 1997 by
the Project Level DPC for S-4 post, and by the Regional
Level DPC for E-1 Post. However, since the Petitioner was
facing departmental proceedings, the
result/recommendations of the said DPC‟s were kept in a
sealed cover. Therefore, in year 1996 and 1997 the
Petitioner could not have been considered for promotion
due to ongoing departmental proceedings against him.
By Order dt. 09.12.1997 (page 113 of writ record), the
disciplinary authority exonerated the Petitioner. It
resulted in culmination of departmental proceedings. In
terms of NTPC promotion policy the
recommendations/results of DPC 1996 and DPC 1997
were opened and it was found that the said DPCs had not
recommended the Petitioner for promotion. In the year
1998, project level DPC was held on 20.06.1998 and
Petitioner was promoted to S-4 post with effect from
01.01.1998. As regards the promotion of Petitioner from
S-3 to E-1 post, it may be mentioned that in the year
1998 the Petitioner did not give his consent for transfer
upon promotion as per the then requirement of the
management, and also the Petitioner did not appear for
mandatory test and interview before the Regional DPC."
The Petitioner has been changing his stand at various stages
of the proceedings vis a vis consideration of his promotion in
year 1996 and 1997. The Petitioner‟s case projected in
paragraph 34 of the petition clearly spell out that his grievance
was that Respondent failed to conduct DPC in 1996 and 1997
according to NTPC promotion policy and failed to consider his
from his due dates despite Court‟s directive. In the said para
his admitted case is that the results of DPC 1996 and 1997 is
kept in sealed covers.
78. Further submits, the Respondent has clearly
demonstrated that DPC was duly conducted in 1996 and 1997
and Petitioner was also duly considered, and the relevant
records related to DPC of 1996 and 1997 were shown to the
Court during the course of hearing of the Writ Petition.
Lastly, the Petitioner pleaded that the Respondents failed
to conduct the DPC in year 1996 and 1997 and failed to
consider the Petitioner for promotion. This is erroneous
for reason of page 18 of writ petition and also that he
was duly considered in both the DPCs.
79. The learned counsel for the Respondent here submits
that there is no merit in the writ petition [W.P. (C) 4566/1998]
and the Petitioner has also mis-conducted himself. Thus, the
said petition is dismissed with costs as devoid of any merit.
80. In reply to C.W.P. No. 5973/1998, the learned senior
counsel for Respondent submits that the Petitioner has filed
the instant writ petition mainly on the following grounds:-
a. Rule 33 of the NTPC Conduct, Discipline and Appeal
Rules under which the show cause notice
dt. 03.11.1998 (annexure P-17 page 127) has been
issued does not apply in case the delinquent has
been exonerated. Arguments projected are that,
Reviewing Authority can review the decision of
Inquiry Officer/Disciplinary Officer when it has
resulted in some punishment; however, if the
employee has been exonerated in the enquiry the
Reviewing Authority has no power under the Rules
to review. Thus contention was that the impugned
show cause notice was illegal and contrary to Rules.
b. Petitioner has contended and argued that earlier
the Reviewing Authority on a review had applied his
mind, and had ordered resuming/re-opened the
enquiry from the stage of cross-examination; thus it
is contended that the Reviewing Authority having
applied its mind once is stopped from issuing show
cause notice now; at this stage;
c. Power to review cannot be invoked by the
Reviewing authority after 6 months of the final
order of Exoneration dt. 09.12.1997;
d. The action of the Reviewing Authority is mala fide
on account of delay in taking action.
81. The show cause notice in question was issued under
Rule 33 of the N.T.P.C. Conduct and Discipline Appeal Rules
but there is no challenge to the said Rule nor any breach of
fundamental rights are alleged or proved on record.
82. Further submits, the Petitioner prayed and got the show
cause notice stayed vide the order of this Court
dt. 19.11.1998.
83. The Respondent has filed a detailed counter affidavit.
Before dealing with the contents of the Petitioner, it would be
relevant to refer to Rule 33 of the N.T.P.C. Conduct and
Discipline Appeal Rules which reads as under :-
Rule 33 Review
"Notwithstanding anything contained in these
Rules, the Reviewing Authority as specified in the
schedule may call for the record of the case
within six months of the date of final order and
after reviewing the case pass such orders
thereon as it may deem fit.
Provided that if the enhanced penalty, which the
Reviewing Authority proposes to impose, is a
major penalty specified in clauses (e), (f) or (g) of
Rule 23 and an enquiry as provided under Rule
25 has not already been held in these cases the
Reviewing Authority shall direct such an enquiry
be held in accordance with the provisions of Rule
25 and thereafter consider the record of the
enquiry and pass such orders as it may deem
proper. If the Appellate Authority decides to
enhance the punishment but an enquiry has
already been held in accordance with the
provisions of Rule 25, the Reviewing Authority
shall given show cause notice to the employee as
to why the enhanced penalty should not be
imposed upon him. The Reviewing Authority shall
pass final order after taking into account the
representation, if any, submitted by the
employee."
84. Learned Senior counsel has argued that the arguments of
the Petitioner are ex-facie fallacious. Rule 33, under which
Reviewing Authority has exercised its power of review and has
issued show cause notice to the Petitioner, is clear and
unambiguous. It gives ample jurisdiction to the Reviewing
Authority to review any order. The Rule does not lay down any
restriction on power of review that such power can be
exercised only if order under review has resulted in
punishment. The cardinal Rule of law is that words of a statute
must be read in its literal sense since the Rule is clear and
unambiguous it has to be read and applied as it is following
the golden Rule of interpretation. The first contention therefore
being contrary to Rule 33 is not tenable at all.
85. Regarding the second contention, the Respondent has
clarified its stand in its counter affidavit that there is no bar in
the Rule 33 that once the review authority has taken recourse
of Rule 33 to review the order of Disciplinary authority or
enquiry officer, the reviewing authority is precluded from
taking further recourse to Rule 33 at any subsequent stage,
surely, the review authority has power under the said Rule to
review any order. In case on review, the enquiry is re-opened
the reviewing authority will undoubtedly have power to review
the final order passed finally. In case, the contention of
Petitioner is accepted, it would tantamount to reading
something into the law which is impressible in law.
86. That apart, on the earlier occasion, the reviewing
authority in exercise of its power under Rule 33 of the Rules
had accepted the request of the Petitioner and had re-opened
the enquiry giving opportunity to the Petitioner to cross
examine the management witnesses. At the earlier occasion
there was no occasion of the reviewing authority to go into the
merits of the case. However, after reopening the enquiry, the
enquiry officer has returned his finding and has passed order
in punishment. Therefore, the action of the Reviewing
Authority is perfectly justified and within the fore-corners of
mandate of Rule 33.
87. The third contention of the Petitioner vis-a-vis delay is
contrary to record and the case and is thus is untenable.
Firstly, there is no mandate of limitation prescribed in the
Rules; the only limitation provided in Rule 33 is that the
reviewing authority must call for record within 6 months. The
record clearly shows that the reviewing authority had in
exercise its power of review under Rule 33 had called for the
records of the case on 19.05.1998 i.e. within the period of six
months. After examining the enquiry report and the entire
records of the proceedings and also obtaining legal opinion
had issued show cause notice dt. 03.11.1998, therefore, there
is not a question of any delay as allege by the Petitioner.
88. Learned senior counsel further submits that the
Petitioner is trying to mislead the court by harping that show
cause notice is issued after 11 month of the order whereby
Petitioner was „exonerated‟.
89. The mandate in Rule is to exercise the power of review
within six months, and there is no mandate at all as to within
what time the reviewing authority must take decision. The
Petitioner is deliberately reading the words into the Rules. The
power of review under Rule 33 is to be exercised after passing
of a final order in the present case; the Disciplinary Authority
has passed the order of exoneration on 09.12.1997.
Thereafter, the Petitioner himself had been representing to the
reviewing authority against the said exoneration, the same is
attached as annexure P14 (Colly). On receipt of Petitioner‟s
representation the reviewing authority has called for the
records of the case on 19.05.1998 in exercise of its power
under Rule 33. Thereafter, the reviewing authority has himself
considered the case, obtained legal opinion, then issued the
show cause notice dt. 03.11.1998. Therefore, there is no
illegality or ambiguity in issuance of show cause notice or in
invoking power of review under Rule 33.
90. The learned counsel has pointed out that the Petitioner
has wrongly harped that reviewing authority on the two
occasions was the same person and thus Petitioner feels
discriminated. But, the Petitioner has not shown any
discrimination on record. That apart, it is pointed out on both
the occasions, the reviewing authority was a different person
as thus no question of discrimination. At the time of reopening
the enquiry, reviewing authority was Sh. Saranjit Singh while
at the second occasion, i.e. at the time of issuance of show
cause notice, the reviewing authority was Sh. J.N. Sinha. Thus,
a reading of Rule 33 would amply show that it gives ample
jurisdiction to the reviewing authority to call for any record and
review the decision. In this case, the reviewing authority had
rightly exercised the power and had called the files and had
found that the appellate authority had acted improperly in
exonerating the Petitioner, though on record of the enquiry of
the proceedings cogent and sufficient material existed for
imposing penalty against the Petitioner. In that view of the
matter, reviewing authority cannot be faulted in having
exercised the power of review.
91. The learned senior counsel has made it clear that the
executive Director (NCT) was the reviewing authority as
against the Petitioner. There is no doubt about the fact
particularly because the Petitioner has himself been
submitting representations to the same very designating
officer for review of the orders passed by reviewing authority.
In view of this conduct and admission of the Petitioner, the
Petitioner cannot be heard to the contrary. That apart the
NTPC Rules leave no doubt that the executive director (NCT) is
the reviewing authority in the case of the Petitioner.
92. The learned senior counsel has raised a legal issue that
the writ petition is pre mature and does not lie against mere
issuance of a show cause notice. On the face of clear and
unambiguous Rule 33 providing for review it cannot be said
that the reviewing authority has no power for review, therefore
show cause notice simplicitor cannot be a ground of exercising
jurisdiction under Article 226 of the Constitution in case
reviewing authority after the show cause notice commits some
irregularity or gives a finding against the Petitioner the
Petitioner has definitely right to approach the Court. But at the
show cause stage no such right exists with Petitioner. The
learned senior counsel has referred a case of Union of India
and Anr Vs. Kunisetty Satyanrayana, (2006) 12 SCC 28,
the delinquent on mere issuance of charge sheet had directly
approached the Administrative Tribunal, and the Tribunal
having disposed the OA, directing the delinquent to submit the
reply before the Disciplinary Authority, the delinquent having
challenged the same in the High Court, which had been
allowed by the High Court, the employer had approached the
Supreme Court. In such a case, the question before the
Supreme Court was whether the High Court was right in
allowing the writ petition. The Supreme Court returned a
finding holding that the High Court was not justified in allowing
the writ petition. In paragraph 13, Supreme Court held as
under:-
"13. It is well settled by a series of decision of this Court
that ordinarily no writ lies against a charge sheet
or show cause notice vide............................
14. The reason why ordinarily a writ petition should not
be entertained against a mere show cause notice
or charge sheet is that at that stage the writ
petition may be held to be premature. A mere
charge sheet or show cause notice does not give
rise to any cause of action, because it does not
amount to an adverse order which affects the
rights of any party unless the same had been
issued by a person having no jurisdiction to do so.
It is quite possible that after considering the reply
to the show cause notice or after holding an
enquiry for authority concerned may drop the
proceedings and/ or hold that the charges are not
established. It is well settled that a writ petition lies
when some right of any party is infringed. A mere
show cause notice or charge sheet does not
infringe the right of anyone. It is only when a final
order imposing some punishment or otherwise
adversely affecting a party is passed, that the said
party can be said to have any grievance.
15. Writ Jurisdiction is discretionary jurisdiction and
hence such discretion under Article 226 should not
ordinarily be exercised by quashing a show-cause
notice or charge-sheet.
16. No doubt, in some very rare and exceptional cases
the High Court can quash a charge-sheet or show-
cause notice if it is found to be wholly without
jurisdiction or for some other reason if it is wholly
illegal. However, ordinarily the High Court should
not interfere in such a matter."
93. In Executive Engineer, Bihar State Housing Board
V. Ramesh Kumar Singh and others (1996) 1 SCC 327,
the Supreme Court on facts held that Respondent was not
justified in invoking extraordinarily jurisdiction of the High
Court under Article 226 of the Constitution of India without first
showing cause against the impugned notice. It was held in
paragraph 10 as under:
"10. We are concerned in this case, with the
entertainment of the writ petition against a show-
cause notice issued by a competent statutory
authority. It should be borne in mind that there is
no attack against the vires of the statutory
provisions governing the matter. No question of
infringement of any fundamental right guaranteed
under the Constitution is alleged or proved. It
cannot be said that Ext. P4 notice is ex facie a
nullity or totally "without jurisdiction" in the
traditional sense of that expression-that is to say,
that even the commencement or initiation of the
proceedings on the face of it and without anything
more, is totally unauthorized. In such a case, for
entertaining a writ petition under Article 226 of the
Constitution of India against a show cause notice,
at that stage, it should be shown that the Authority
has no power or jurisdiction to enter upon the
enquiry in question. In all other cases, it only
appropriate that the party should avail of the
alternate remedy and show cause against the
same before the authority concerned and take up
the objection regarding jurisdiction also, then. In
the even of an adverse decision it will certainly be
open to him to assail the same either in appeal or
revision, as the case may be, or in appropriate
cases, by invoking the jurisdiction under Article
226 of the Constitution of India."
94. Petitioner also relied on (2004) 3 SCC 440, wherein in
paragraph 5 of the Supreme Court has depreciated the
practice of High Courts entertaining writ petitions questioning
legality of the show-cause notices stalling enquiries as
proposed and retarding investigative process to find the actual
facts with the participation and in the presence of the parties.
Reliance is also placed on AIR 1987 SC 943; para 9 is
relevant.
95. Lastly, Petitioner has alleged that the show cause notice
has been issued with mala fide. There are no specific
averments or grounds of any mala fide, nor has any such
alleged ground been proved or established. Mere allegation of
mala fide without any foundation and material to substantiate
the same, are not sufficient, and call for no judicial
intervention.
96. Both the parties were heard in length after considering
the written submissions; I pen my opinion as far as the
CWP 4566/1998 is concerned. The Petitioner was charge
sheeted by memorandum dt. 12/13.11.1986 for misconduct.
Finally, at the level of appellant authority the punishment
given to the Petitioner was withholding of one increment
without cumulative effect from 01.10.1988.
97. By another memorandum of charge sheet issued against
the Petitioner on 01.03.1998, the Petitioner was removed from
the service vide order dt. 24.09.1998. However, in appeal the
order of removal from service was modified by order
dt. to 30.12.1988 „censure‟. By virtue of clause 2.8.3. of policy
of promotion of Respondent‟s corporation, the Petitioner was
considered for promotion only after one year after the
effective date of punishment. Since the punishment had been
imposed on 30.12.1988 therefore, the bar of promotion as per
the Rules continued till 30.12.1989. Accordingly by order
dt. 01.07.1990, the Petitioner was promoted w.e.f 01.01.1990
in controller Grade-II, which is a S-2 post. The next promotion
was granted as per the Rules after 3 years and accordingly by
order dt. 25.06.1993, the Petitioner was duly promoted to the
next higher post as Supervisor Grade-I (Material) which is S-3
post w.e.f 01.04.1993. The Petitioner was again promoted to
S-4, Grade by order dt. 28.7.1998 with effect from 01.01.1998.
98. I made it clear that, though the Petitioner was due for
promotion in 1996, his promotion from S-3 post could not have
been promoted to E-1 (Executive cadre post) directly, which
being an inter-cadre post requires recommending authority at
regional level DPC or the Petitioner would have been promoted
to S-4 which was intra-cadre post for which the recommending
authority was Project DPC.
99. Further, the Respondent has made it clear that on
07.03.1994 the Petitioner filed for a review under Rule 33 of
NTPC CDA Rules against the order dt. 01.01.1994 of the
Appellant authority, by which the order of punishment imposed
on Petitioner, was moderated.
100. The reviewing authority vide its order dt. 19.03.1996,
reopened the enquiry in respect of charge-sheet
dt. 12/13.11.1986. Since, the enquiry had been reopened; the
disciplinary proceedings against the Petitioner remained
pending. Vide order dt. 09.12.1997 the Disciplinary authority
exonerated the Petitioner. However, the disciplinary
proceedings against the Petitioner remained pending up to
09.12.1997. As regards to the promotion of the Petitioner from
S-3 to E-1 post, the Petitioner was duly considered for the
same in the year 1996-97 as well as by the Regional level,
DPC. As per as the pre-requisites the Petitioner, appeared in
mandatory test and interview. Although the Regional level DPC
did not recommend the Petitioner‟s name for promotion to E-1
cadre in both years i.e. 1996-97, the result of the Petitioner
qua his recommendation was kept in sealed covers as the
disciplinary proceedings against the Petitioner were pending
till 09.12.1997. In the year 1998, the Petitioner did not give his
consent as required for considering candidates for promotion
of E-1 cadre; therefore, Petitioner‟s name was not forwarded to
the Regional Level DPC. Thereafter, in the years 1991 and
onwards the Petitioner did not come forward for tests or
interviews which were mandatory pre-requisite for being
promoted from S-3/S-4 to E-1 cadre, therefore, he was not
considered after the year 1999.
101. I further made it clear that the Petitioner was duly
considered by the Project level, DPC from the promotion from
S-3 to S-4 post in the years 1997. But, due to the pending
departmental proceedings against him, he was not
recommended for promotion to S-4 post by project DPC.
However, in the year 1998, after his exoneration vide order dt.
09.12.1997, the Petitioner was promoted to S-4 Grade vide
order dt. 27.07.1998 w.e.f. 01.01.1998.
102. Vide order dt. 24.09.1998, the appellant authority (ED-
WR) by its order dt. 30.12.1998 modified the punishment to
that of "Censure". The punishment of "Censure" was not
challenged by the Petitioner; therefore, the said punishment
attained its finality and by virtue of clause 2.8.3. of the policy
promotion, the Petitioner could not be considered for
promotion because the punishment had been imposed on
30.12.1988, therefore, the ban of promotion was continued till
30.12.1988. Accordingly, by order dt. 01.07.1990, the
Petitioner was promoted w.e.f. 01.10.1990 as Controller Grade-
II, which is S-2 post.
103. As regards to the double jeopardy, unless the period of
punishment gets expired by efflux of time, the chain for
consideration during the said period cannot be taken up as it
would amount to retrospective promotion which is
impermissible under the Rules and it would be a premium to
misconduct as was observed by the Supreme Court in the case
of State of Tamil Nadu Vs. Thiru K.S. Murugesan and
Ors. 1995 (3) SCC 273. Therefore, in my opinion, the
Petitioner was rightly considered for promotion after expiry of
his punishment and further promoted w.e.f. 01.01.1990.
104. Regarding the chain of channel of promotion for
Supervisory category and for Exclusive category, the
designations in Supervisory Category are S-1, S-2, S-3, S-4 etc.
From S-3 post, there are two channels open for promotion;
firstly, Supervisor in S-3 can be considered for promotion to S-
4 level and also can be considered for E-1 level directly subject
of fulfillment of criteria. For being considered to E-1, the
employee of S-3 has to qualify in the written test and interview
as per as the promotion policy, which is not found in case of
the Petitioner. Since the Petitioner was posted in a different
department i.e. Supervisor Grade-I (S-2) post in electric
erection department Supervisor Grade-I (Material) and then
designated as Supervisor (Material and Contract) as S-3 level.
Therefore, there was no change of channel as per promotion
policy in NTPC.
105. During the argument, the Respondents have shown the
original record to this Court. On perusal it revealed that the
DPC was conducted in 1996-97 wherein the Petitioner was also
duly considered. Therefore, I do not find any discrepancy,
arbitrariness and illegality in the order passed by the
Respondent. Thus, I am not inclined to interfere with the
orders passed by the Respondent. Accordingly, the writ
petition No. 4566/1998 is dismissed.
106. In regard to W.P.C. 5973/1998, the impugned show cause
notice dt. 03.11.1998 vide Rule 33 of NTPC Conduct, Discipline
and Appeal Rules. On perusal the said Rule, the Reviewing
Authority has power to call for the record and pass an
appropriate order provided if the enhanced penalty, which the
Reviewing Authority proposes to impose is a major penalty
specified in clauses (e), (f) or (g) of Rule 23 and any query as
provided under Rule 25 has not already been held, the
Reviewing Authority shall conduct such an enquiry with
provisions of Rule 25 and thereafter consider the record of the
enquiry and pass such order as it may deem fit. If the
appellant authority decides to enhance the punishment, but an
enquiry has already been held in accordance with provision of
Rule 25, the Reviewing Authority shall give show cause notice
to the employee as to why the enhance penalty should not be
imposed upon him.
107. The Reviewing Authority has power under Rule 32 to
issue show cause notice similar to what was issued in the
present case. Rule 33 gives wide jurisdiction to the Reviewing
Authority to review any Order. The Rule does not lay down any
restriction as to the power of Review that such power can be
exercised only if Order under review has resulted in
punishment; provided the Reviewing Authority calls for the
record of the case within 6 months of the final order. Further,
Rule 33 does not specify within how much time the Review
Authority has to take its decision to pass the final order. Only
mandate of limitation prescribed in the Rule to call for record
within 6 months, undisputedly the record was called within
6 months on 19.05.1998. However, the decision to issue show
cause notice was taken after going through the entire record
on 03.11.1998.
108. It is not in dispute that the Disciplinary Authority had
exonerated the Petitioner on 09.12.1997. Thereafter, the
Petitioner himself had been representing in the Review
authority against the said exoneration. On the receipt of
Petitioner‟s representation, the Reviewing authority had called
for the record of the case on 19.05.1998 in exercise of its
power under Rule 33. Thereafter, examining the enquiry report
and the entire record of the proceedings and also obtaining
legal opinion, the show cause notice in question was issued.
Therefore, no delay was caused by the Respondent in issuing
the show cause notice.
109. In respect of the same Reviewing Authority on both the
occasions, it is clear from the record that there were two
persons namely one Sh. Saranjeet Singh who was present at
the time of re-opening of the enquiry and one Sh. J.N. Sinha
present at the time of issuance of show cause notice. Thus, on
reading Rule 33, I find no fault adopted by the Respondent as
the Rule permits them to do so. The Petitioner has not
challenged the virus of the Rules, therefore, the impugned
show cause notice was issued as per Rules.
110. The Petitioner is fighting since 1986; the instant writ
Petition is in its fourth round of litigation. In the minutes of the
meeting with representative of Action committee held on
16.01.1989, wherein all pending cases were decided to be
closed against the Petitioner. The impugned show cause notice
was stayed vide order dt. 19.11.1998 by this Court. The
litigation has attained the age of 25 years, which in any
manner is not a short period. In my opinion there was not any
necessity to issue the impugned show cause notice. But, the
Respondent (Reviewing Authority) was determined to bring the
Petitioner to a final conclusion therefore the impugned show
cause notice was issued.
111. Undisputedly, the Petitioner had been a leader of the
employees therefore; the higher officials were somehow
against the Petitioner. The Respondent should give the quitus
in this matter. Therefore, this Court does not allow the
Respondent to proceed further against the Petitioner.
112. In the interest of justice and drawing the curtains, I
hereby quash the impugned show cause notice dt. 03.11.1998.
Accordingly, the writ petition No. 5973/1998 is allowed.
113. Writ petition No. 4566/1998 is dismissed.
114. Writ petition No. 5973/1998 is allowed.
115. I, refrain from imposing costs in both the above writ
petitions.
SURESH KAIT, J
JULY 14 , 2011
